Subsidiary body or committee

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 However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments.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.

Print Friendly, PDF & Email

Date produced: 05/04/2011

1. What are the implications of the Adaptation Body being constituted as a “subsidiary body” vs. a “committee”?

2. What is the status of the Standing Committee and the Transitional Committee?

Summary: 1. There are a number of key differences between ‘subsidiary bodies’ and ‘committees’. Subsidiary bodies generally have more members which may include representatives of governments and NGOs, representative of a wider range of interests. Committees are generally smaller, so less representative. They focus on technical issues and are made up of technical experts who act in their personal capacity rather than representing government interests. The governmental membership of ‘subsidiary bodies’ tends to give them greater political credibility, however, the smaller membership of committees allows for greater efficiency and quicker decision-making. 2. In our view the Standing Committee is likely to be treated as a ‘committee’ whereas it is more difficult to be definitive regarding the Transitional Committee. To us it genuinely seems to be a hybrid of a ‘subsidiary body’ and a ‘committee’ in that it is a body of experts but one that may be politicised. However, we are not aware of the most recent developments regarding these groups, and it may be that these will throw further light on the exact nature of these bodies.

The following table provides a broad overview on the differences between subsidiary bodies and committees:

 

Subsidiary Body

Committee

Advantages
  • A subsidiary body is at the same political level as the SBSTA and the SBI, giving it the political legitimacy and credibility which that entails.

 

  • Smaller membership facilitates more efficient and expedient decision-making and more frequent deliberations.
  • Members have certain technical or policy expertise.
  • The rules of procedure generally require members to act in their personal capacity which seeks to ensure that the negotiations are not representative of government interests, but are negotiations based upon technical and specialised expertise.
Disadvantages
  • Difficulties are likely to be those experienced by the SBSTA and SBI – the difficulties in taking decisions and practically implementing programmes.
  • The political nature of its membership has the potential to lead to negotiations as between governments, as opposed to in accordance with the interests and mandate of the subsidiary body.
  • The small non-political membership may limit the scope of political backing from a wide number of Parties.
  • Committees may fail to give due representation to all Party stakeholders – in fact, some rules of procedure unintentionally preclude certain minority Parties from membership altogether.
 
Convention Authority
  • Rule 2.8 of the “Rules of Procedure of the Conference of the Parties and its Subsidiary Bodies” states that a subsidiary body means: “those bodies established by Articles 9 and 10 of the Convention, as well as any body, including committees and working groups, established pursuant to Article 7(2)(i) of the Convention.”
  • The two subsidiary bodies formed under Article 9 and 10 of the Convention the Subsidiary Body for Scientific and Technological Advice (SBSTA) and the Subsidiary Body for Implementation (SBI).
  • Any proposed ‘Subsidiary Body on Adaptation’ would fall under the category of subsidiary bodies established pursuant to Article 7(2) (i) of the Convention.
  • ‘Committee’ includes groups called committees, advisory bodies, specialised bodies or constituted bodies.
  • Committees are not individually defined within the Rules of Procedure under the UNFCCC. Instead they are defined by Rule 2.8 as ‘subsidiary bodies’. Nonetheless, committees have operational differences to subsidiary and other bodies.
Examples of committees are:

  1. the Consultative Group of Experts on National Communications from Parties not included in Annex I to the Convention (CGE);
  2. the Expert Group on Technology Transfer (EGTT); and
  3. the Least Developed Countries Expert Group (LDCEG).
PermanenceSubsidiary bodies established under Article 7(2)(i):

1. are often described as temporary subsidiary bodies;

2. are established on an ad hoc basis; and

3. have a specific mandate and timeframe.

 

One example of a subsidiary body is the AWG-LCA, which was only intended to be operational until 2009. Upon its establishment, it had been planned that the AWG-LCA would complete its work and present the outcome of its work at COP15. The COP at COP15 extended the mandate of the AWG-LCA to enable it to continue its work with a view to presenting the outcome of its work to the COP for adoption at COP16.

 

  • Committees are generally created on an ad hoc and temporary basis.

 

Frequency of meetings
  • Co-ordination of regular meetings may be more difficult due to the larger number of members.
  • The committees meet regularly during the year – the CGE, EGTT and LDCEG all meet biannually (often in conjunction with SBSTA or SBI meetings), in addition to each committee’s individual inter-sessional meetings and workshops.
 

  • Due to the relatively small size of these committees. they are able to meet more frequently and, generally, matters are considered and resolved more expediently.
Membership  
  • Membership may be limited to “Parties”. This includes governments which are signatories under the Convention and also representatives of NGOs which have registered with the Convention Secretariat. This is the case in both the SBSTA and the SBI.
  • Alternatively,  where the scope of responsibility of the subsidiary body requires specific technicalities or industry knowledge, membership may consist of persons with technical expertise. For example, the Ad hoc Group on Article 13 consisted of technical and legal experts.
  • As the mandates given to these committees are usually highly technical, the membership requirements of these groups often stipulate that members have certain specialised and technical expertise.
  • The LDCEG, for example, is expert-based and each member must have “recognised competence and appropriate expertise to assist in the development of ‘NAPAs’ [National Adaptation Programmes of Actions], including an expertise in “vulnerability and adaptation assessment”. The experts are selected by the groups of Parties in the LDCEG. Once appointed, the experts are required to act in their personal capacity (and not on behalf of Parties as government negotiators). It is a requirement that these experts have no “financial or pecuniary interest” in the work of the group. There are 12 members:(a) 9 from the LDCs (5 from Africa and 2 each from Asia and the small island states) (b) 3 are from Annex 2 Parties.
  • The EGTT’s members are also experts and are elected by the Parties, but once appointed they must act in their personal capacity.This seeks to ensure that the negotiations are not representative of government interests, but are negotiations based upon technical and specialised expertise. Areas of expertise include, but are not limited to:
1. greenhouse gas mitigation and adaptation technologies;

 

2. technology assessments;

3. information technology;

4. resource economics; and

5. social development.

 

  • The EGTT comprises 20 members: 3 members from each of the regions of the Parties not included in Annex I, (Africa, Asia and the Pacific, and Latin America and the Caribbean) 1 member from the small island developing States;7 members from Parties included in Annex I; 3 members from relevant international organizations. Membership is based on expertise but it is takes into account the need to broad geographical representation. Members are elected for 2 years (for a max 2 consecutive terms). International Organizations’ representatives serve on an issue oriented basis. Each year a Chair and Vice Chair is elected one from Annex 1 and one from a non-Annex I Party.
  • The CGE is also composed of experts, these being from Africa, Asia, Latin America and the Caribbean, Annex I Parties and a number selected by the secretariat from organisations with relevant experience. These experts are chosen by the Parties from each of the four geographical regions (or by the secretariat in the case of the organisations).
  • In the CGE, membership restrictions are in place which cause representation to be deliberately skewed in favour of developing countries. Of the five categorical member groupings, three groups (Africa, Asia/Pacific Region, Latin America/Caribbean Region) consist of predominantly non-Annex I Party regions and account for 15 members of the CGE, whilst Annex I Parties account for only 6 members. The membership structure has also inadvertently excluded non-Annex I Parties located in Central and Eastern Europe from membership (e.g. Albania and Armenia) since they do not fit within any of the five categorical groupings. The same exclusion occurs in respect of the EGTT, which has similar groupings. The LDCEG also suffers representation issues, albeit different to the issues faced by the CGE and EGTT.  As of August 2010 the CGE compromised 20 members.
Mandate/Role 
  • To provide assistance and advice to the COP re their sphere of responsibility.
  • Provide recommendations for the COP ,in the form of draft decisions, which the COP may then review and either agree upon or re-submit to the subsidiary body for further consideration.
  • Both the SBSTA and the SBI may also adopt conclusions of their own, though these are usually procedural in nature.
  • The mandates of committees is highly specialised.
  • The work of committees is of a technical nature.
 
Who do they report to?
  • Subsidiary bodies created by the COP generally report directly to the COP.
  • All conclusions and recommendations decided upon by the committees must be reported to either the SBSTA or the SBI.
 
Political Credibility
  • Subsidiary bodies whose membership is open to Parties (i.e. predominantly governments), such as the SBSTA, enjoy a level of credibility amongst governments.
  • Decisions and recommendations must be reached by consensus among those governments, so that all recommendations submitted to the COP have necessarily received political backing from the outset (though this does not ensure that such backing is guaranteed in the future).
No information
Legal/Political  Weight
  • The conclusions adopted by subsidiary bodies do not have the same legal or political significance as COP decisions.
  • For example, the SBSTA has, in the course of developing international standards, opted to avoid making those standards binding on national governments.As such, national governments may choose not to adopt the standards adopted by the SBSTA. One instance of this is in the preparation of national inventories of greenhouse gas emissions, over which national governments have retained almost complete autonomy.
No information
2. What is the status of the Standing Committee and the Transitional Committee?

(A) The Standing Committee

The functions of this committee are set out in IV A 109 of the Report of the Conference of the Parties on its sixteenth session, held in Cancun from 29 November to 10 December 2010, Addendum, Part Two: Action taken by the Conference of the Parties at its sixteenth session, Document FCCC/CP/2010/7/Add.1.

The Standing Committee is to ensure the Green Climate Fund does not sit empty, and to assist the COP in mobilising financial resources and measuring, reporting and verifying their delivery. The Committee will also help the COP to improve co-ordination of climate finance within and outside the fund.

The roles and functions of the committee are still to be defined further, however, it seems that it will need a ‘wide array of expertise’. In our view the Standing Committee is likely to be treated as a ‘committee’ if it is to be made up of experts.
It remains unclear what sort of power and authority the Standing Committee will have.

(B) Transitional Committee

The functions and information about the number/source of members of this committee are set out in IV A 109 of the Report of the Conference of the Parties on its sixteenth session, held in Cancun from 29 November to 10 December 2010, Addendum, Part Two: Action taken by the Conference of the Parties at its sixteenth session, Document FCCC/CP/2010/7/Add.1. The Terms of reference for the design of the Green Climate Fund can be found at Appendix III of the same document.

The Transitional Committee will develop the operational documents of the Green Climate Fund to address a range of different issues . As far as we are aware, these will need to include:
• Developing a shared vision of the Fund’s objectives, scale and scope,
• Putting in place the institutions that will manage the Fund such as a Board and Secretariat,
• Guidelines to develop policies on access to funds, and financial mechanisms, and
• Defining the relationship between the Fund and the COP.

It seems to us that the Transitional committee genuinely seems to be a hybrid of a ‘subsidiary body’ and a ‘committee’ in that it is a body of experts but one that may be politicised.. There are to be 40 members to include specific representation for developing countries, which is more akin to the structure of a ‘subsidiary body’. However, the members will be experts, with ‘the necessary experience and skills, notably in the area of finance and climate change’. This is more akin to the membership of a committee. As far as we are aware it remains unclear whether outside observers will be able to participate.

NB: We are not aware of the most recent developments regarding the Transitional Committee and the Standing Committee, and it may be that these will throw further light on the exact nature of these bodies.