Shared governance of the Warsaw International Mechanism for Loss and Damage

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

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Date produced: 14/12/2019

If the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (“WIM”) were guided and accountable to both (1) the Conference of the Parties to the UN Framework Convention on Climate Change (COP) and (2) the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA) (rather than solely by the COP or the CMA), what might a shared governance arrangement look like?

Advice:

Based on our preliminary analysis, there is no single answer on how to design a shared governance between the COP and the CMA. Ultimately it will be a political decision of the COP and CMA.

Decision 2/CP.19, establishing the WIM, states that its Executive Committee (ExCom) shall function under the guidance and be accountable to the COP (para 2), and that the ExCom shall report annually to the COP through SBSTA and SBI. The same decision provides a non-exhaustive list of the core functions of the WIM (para 5, see ‘inter alia’) and lists what type of actions the WIM should implement in the context of its functions (para 7). The listed functions are:

1.  Enhancing knowledge and understanding of comprehensive risk management approaches to address loss and damage associated with the adverse effects of climate change, including slow onset impacts
2.  Strengthening dialogue, coordination, coherence and synergies among relevant stakeholders; and
3.  Enhancing action and support, including finance, technology and capacity building, to address loss and damage associated with the adverse effects of climate change.

The non-exhaustive nature of the listed functions of the WIM makes it possible for the WIM/ExCom to entertain new functions within the boundaries of the WIM’s general mandate under the COP.

As the CMA has not yet adopted decisions on the WIM, the only provision determining the relationship between the CMA and the WIM is Article 8.2 of the Paris Agreement, which states that the WIM shall be subject to the authority and guidance of the CMA. Although Article 8 is silent on the relationship with ExCom, Article 8.2, by providing that the WIM will be subject to the authority and guidance of the CMA, foresees that the ExCom might also function under the guidance of, and report, to the CMA. It would be desirable for Parties to adopt a COP decision to formalise this. Parties could decide that the ExCom will report to both COP and CMA. A COP and CMA decision would also be needed to clarify which elements might be considered by the COP and which by the CMA.

Article 8.2 provides that the WIM ‘may be enhanced and strengthened’, as determined by the CMA. Article 8.3 indirectly references the current three functions of the WIM (understanding, action and support) as what should be enhanced, on a cooperative and facilitative basis. Article 8.4 then lists an unexhaustive list of thematic areas where cooperation should take place under the mechanism in order to ‘enhance understanding, action and support’, such as early warning systems, and emergency preparedness.

In our view, the expression that the WIM ‘may be enhanced and strengthened’ under Article 8.2 is broad enough to allow a mandate given by the parties to the CMA to reform the WIM not just to cover new explicit functions (e.g. compensation from loss and damage), but also to reform its governance. Both functions, however, could be also carried out by the COP.

The two texts, Decision 2/CP.19 and Article 8.2 of the Paris Agreement, reveal a dual character of the guidance and accountability relationships between the WIM and the two Supreme Bodies. In practice, this can potentially lead to the COP and the CMA exercising similar oversight and guiding functions over the WIM in the absence of clear rules on how to divide such functions. Overall, this is a matter of cooperative practice between the two bodies and, given their composition and previous practice, it is unlikely that conflicts or overlaps in exercising authority over the WIM will happen.

One possible arrangement for the division of roles between the two bodies would be for the COP to keep oversight over the implementation of the WIM three core functions whilst the CMA would have oversight over, and take decisions on, the ways these three functions should be enhanced and strengthened. In addition, Decision 1/CP.21 identifies specific guidance and reporting expectations for the WIM that were intended to give effect to the Agreement. As such, these specifically identified guidance and reporting expectations (which are set out below) likely fall within the oversight of the CMA, rather than the COP:

  • “establish a clearing house for risk transfer that serves as a repository for information on insurance and risk transfer, in order to facilitate the efforts of Parties to develop and implement comprehensive risk management strategies;”
  • “establish a task force […] to develop recommendations for integrated approaches to avert, minimize and address displacement related to the adverse impacts of climate change.”

It seems certain that, at a minimum, the CMA would guide the areas of work identified above, which were articulated in connection with the adoption of the Agreement, and that the WIM would report on its progress regarding such work to the CMA.

Clarification as to which body will consider the outputs of the WIM review will also be needed as there is no express mandate regarding which body will receive the outcome of future reviews of the WIM. The COP will adopt the terms of reference for future reviews, but it is arguably up to the Parties to decide which body will receive and adopt the outcome of future reviews. Although the COP received the last review, it is open to the Parties to decide that the CMA should receive future reviews, in keeping with Article 8.2 of the Paris Agreement, which states that the WIM is “subject to the authority and guidance of the CMA”.