Transparency framework transition

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced (please refer to the date produced below). However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments.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. You should seek legal advice to take account of your own interests. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

Date produced: 24/09/2018

  1. When does decision 1/CP.21 (in particular paras.90, 91, 97, 98) envisage the replacement of the current MRV system with the new transparency system under Art.13 of the Paris Agreement? 
  2. Can you explain what “shall build upon and eventually supersede” (in para.98 of 1/CP.21) means?


1. Replacement of MRV system

COP decision 1/CP.21[1], in its relevant parts, provides the following:

  • The Ad hoc Working Group on the Paris (APA) is tasked with developing common modalities, procedures and guidelines for the transparency framework under Art.13 of the Paris Agreement.
  • This work should be concluded no later than 2018.[2]
  • The APA’s recommendations are to be forwarded to the Conference of the Parties serving as the meeting of Parties to the Paris Agreement (CMA) for consideration and adoption at its first session.[3]
  • The new modalities, procedures and guidelines shall apply upon entry into force of the Paris Agreement.[4]
  • This transparency framework shall eventually supersede the measurement, reporting and verification system under the Convention, immediately following the submission of the final biennial reports and update reports.[5]

This timetable, agreed by parties in 2015, anticipated that the Paris Agreement would enter into force no earlier than 2018. However, the Paris Agreement entered into force on 4 November 2016,[6] and the first session of the CMA opened in 2016,[7] well before the conclusion of the APA’s work.

At the opening of its first session, the CMA, therefore, invited the COP to continue its work (via the APA) on preparing the new transparency framework, and to forward the outcomes to the CMA for adoption at the third part of its first session, in conjunction with COP 24, in December 2018.[8] This timetable was re-affirmed by the COP at its most recent session in 2017, at COP 23.[9]

This means that (further to Decision 1/CP.21 read in light of subsequent decisions by the CMA and COP) if modalities, procedures and guidelines on transparency, or parts thereof, are adopted by the CMA, they will apply, unless the Parties decide otherwise, with immediate effect. This is likely to happen (at least to some extent) during the third part of the CMA’s first session, in conjunction with COP 24 (in Katowice). So unless the parties explicitly set another date or postpone their operation, new rules could apply from December 2018.

This, however, does not mean the current MRV system is rendered redundant at the same time.

Under the current MRV system, Annex I Parties are requested to submit their Biennial Reports (BRs) to the secretariat every two years.[10] The 3rd Biennial Report should be submitted to the secretariat by 1 January 2018. With the exception of Belarus, Ukraine and the US all Annex I Parties have submitted their BRs by the deadline or subsequently during the course of 2018.

Developing country (Non-Annex I) Parties should, consistent with their capabilities and the level of support provided, have submitted their first Biennial Update Report (BUR) by December 2014, and every two years thereafter. The least developed country Parties and small island developing States are allowed to submit BURs at their own discretion.[11]

The Cancun Agreements and the Reporting Guidelines adopted in Durban the following year do not contain any dates for “final BRs and BURs”, and instead envisage ongoing biennial reports.[12] So, at this point in time, it is not clear when the current reporting cycle ends and the requirements of a new system may supersede existing modalities. A possible interpretation is that parties have to decide individually and in good faith on what their final report under the Convention’s MRV system was or will be.

However, in light of the current negotiations, it seems far more likely that Parties will decide on the exact processes and timelines of transition. This would probably include an agreement on when the final round of BRs/BURs will take place. The transition process could be outlined as part of the new modalities, procedures and guidelines, or in separate decisions. The provisions of the new framework will dictate when the new transparency framework will fully supersede the existing MRV system.

In this context, it has, for example, also been suggested that in 2022, Parties could be asked to report under both systems. As the existing system tracks progress towards 2020 pledges, 2022 could be the last year for reporting under the existing arrangements. But it would also be the first year for reporting under the new framework to input into the 2023 global stocktake.[13]

2. “Build upon and supersede”

 The language “shall build upon” used in para.98 of 1/CP.21 to describe the transition from the current MRV system to a new transparency system under Art.13 Paris Agreement reflects fairly common UNFCCC jargon (building on, build upon). The current MRV system was also introduced “building on existing reporting and review guidelines, processes and experiences, to enhance reporting…”.[14]

It acknowledges the achievements of the existing arrangements as well as the technical experience and expertise gained in developing and maintaining them. The existing knowledge, lessons learnt and good practice associated with the “old” should thus inform “the new”. In the context of Art.13 para.1 (“enhanced” transparency system) “build upon” also reflects the desire to make improvements to the existing system.

“Eventually supersede” indicates that once operationalized the new framework should at some point fully replace the existing system. This allows for the integrating of existing components and provides the flexibility required to ensure a smooth transfer from one to another. But it also suggests that at some point the old system will cease to exist. In the future, this may provide some guidance to parties when they consider whether to maintain the existing system for countries that are party to the Convention but not to the Paris Agreement.

[1] Adoption of the Paris Agreement, Decision 1/CP.21, FCCC/CP/2015/10/Add.1 (29 January, 2016) (Decision 1/CP.21).

[2] Decision 1/CP.21, para. 96.

[3] Decision 1/CP.21, para. 91.

[4] Decision 1/CP.21, para. 97.

[5] Decision 1/CP.21, para.98

[6]  See Notification of the Entry into Force of the Paris Agreement, United Nations, C.N.735.2016.TREATIES-XXVII.7.d, 5 October 2016.

[7] CMA 1 took place in Bab Ighli, Marrakech, Morocco in conjunction with COP 22 and CMP 12.

[8] Action taken by the Conference f the Parties serving as the meeting of the Parties to the Paris Agreement, Decision 1/CMA.1, FCCC/PA/CMA/2016/3/Add.1 (31 January 2017) (Decision 1/CMA.1), paras 5, 8. See also Preparations for the entry into force of the Paris Agreement and the first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement, Decision 1/CP.22, FCCC/CP/2016/10/Add.1 (31 January 2017) (Decision 1/CP.22), paras. 7, 10-12.

[9] Preparations for the implementation of the Paris Agreement and the first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement, Decision 1/CP.23.

[10] Decision 2/CP.17.

[11] Decision 2/CP17.

[12] The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Decision 1/CP.16, FCCC/CP/2010/7/Add.1 (15 March 2011) (Decision 1/CP.16), paras. 40-47 and 60-64; Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Decision 2/CP.17, FCCC/CP/2011/9/Add.1 (15 March 2012) (Decision 2/CP.17), paras. 12-62; Decision 2/CP.17, Annex I (“UNFCCC biennial reporting guidelines for developed country Parties”); Decision 2/CP.17, Annex III (“UNFCCC biennial update reporting guidelines for Parties not included in Annex I to the Convention”).

[13] Yamide Dagnet, Nathan Cogswell et al., Setting the Paris Agreement in Motion, Key requirements for the implementing guidelines, WRI, 2018.

[14] Decision 1/CP.16, para.40.