WIM relationships

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 However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments.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: 20/08/2020

1. What is the ‘legal’ (institutional) relationship between the Executive Committee of the Warsaw International Mechanism for Loss and Damage (the WIM Excom) and its three new expert groups (on slow onset events, non-economic losses and action and support) set up in Madrid 

2. What is the ‘legal’ (institutional) relationship between the Excom of the WIM and the Santiago Network on addressing loss and damage?

3. What form of legal arrangement / responsibility frameworks could be put in place and/or agreed among members of the Network?

Advice:

1. Relationship between Excom and expert groups

The three new expert groups (the Expert Groups) were established by and under the WIM Excom. The power to do so is set out in Decision 2/CP.20, which states that “the Executive Committee may establish expert groups … to help execute the work of the Executive Committee in guiding the implementation of the Warsaw International Mechanism, as appropriate, in an advisory role, and that report to the Executive Committee.” [1]

These are not the first expert groups to be established and TOR have already been developed by Excom: under the Five Year Rolling Workplan it was envisioned that the WIM Excom would prepare relevant Terms of Reference for the Expert Groups (the TOR).[2] TOR were subsequently adopted at the 7th WIM Excom meeting in March 2018.[3] They make clear that the Expert Groups are under the direction and control of the WIM Excom and are intended to advise and assist the WIM Excom:

  • There will be up to four members of the WIM Excom in each Expert Group.[4] The Co-Chairs of the WIM Excom will approve the appointment of other experts to the group from the Roster of Experts.[5]
  • The co-facilitators of the Expert Groups will be WIM Excom members and only WIM Excom members can represent the Expert Groups.[6]
  • The Expert Groups are only permitted to work on matters within the scope of the WIM Excom’s five-year rolling workplan.[7]
  • The Expert Groups will report to the WIM Excom.[8]

Although TOR for the new three expert groups have yet to be agreed, the Excom is using the TOR agreed at Excom 7 as a beginning template. They therefore provide a useful indication of what the working relationship between the expert groups and Excom might look like.

2. The relationship between Excom and the Santiago Network

The institutional relationship between the WIM Excom and the Santiago Network differs from the relationship between the WIM Excom and the Expert Groups. The Santiago Network was established by the CMA (not the WIM Excom) and is defined as being “part of” the WIM.[9] The institutional relationship between the WIM Excom and the Santiago Network is in principle the same as the relationship between the WIM Excom and the WIM.

Thus, the WIM Excom is mandated to guide the implementation of the functions of the WIM, including the Santiago Network. This “guidance” function means that, in contrast to the Expert Groups mentioned above, the Santiago Network does not report to the WIM Excom. In addition, the WIM Excom would not be able to unilaterally develop and adopt rules regulating the functions of the Santiago Network, unless otherwise given that mandate by the CMA.

To avoid confusion: we note that Decision 2/CMA.2 invites the entities involved in the Santiago Network to report on their progress to the WIM Excom.[10] This reporting requirement does not establish a governance structure in which the entities involved in the Santiago Network “report to” (and are thus governed by) the WIM Excom. Rather, Decision 2/CMA.2 makes clear that the WIM Excom is mandated to gather updates on the work of the entities involved in the Santiago Network, in order to include those progress updates in its annual report to the CMA.[11]

The UNFCCC secretariat launched the Santiago Network webpages in June during the June Momentum event facilitated by the SBI and SBSTA Chairs, available at https://unfccc.int/santiago-network.

3. Arrangement or frameworks among members of the Network

The Santiago Network is a platform through which States can request technical assistance and, in response to that request, will be connected with appropriate sources of assistance from, amongst other sources, intergovernmental organizations, private sector entities, international organizations, NGOs, and potentially individuals. At present, there is no information available about the legal nature of the relationships between members of the Santiago Network.

In our view, the form of the legal relationships between the members of the Santiago Network may vary on a case by case basis, depending on the precise nature of the work involved, the types of partnerships envisaged and the types of members involved.

For example, once a connection is made, there could be a formalized legal arrangement between (1) the relevant State and the entities providing assistance, (2) the entity that connected the State and the entities providing assistance (which may be the UNFCCC Secretariat and/or the WIM Excom), and (3) the multiple entities collaborating together to provide the State with assistance (if relevant).

These types of legal relationships are frequently reflected in contracts, which can involve States, IGOs and non-state entities, or any combination of them. The WIM Excom or the UNFCCC Secretariat may decide to provide template agreements, to enable these legal arrangements to be put in place relatively quickly.

These contractual agreements would define the allocation of contractual risk between the parties involved. For example, in exchange for receiving assistance/advice, the State may need to waive claims against its contractual counterparty/counterparties for losses suffered by certain loss and damage events, subject to specific exceptions such as negligent advice or assistance. The State may also need to agree not to sue the UNFCCC Secretariat if it is connected with an entity that provides negligent assistance. These types of waiver clauses need to be prepared carefully, in order to ensure that the interests of the States involved are protected, while at the same time facilitating and promoting the provision of assistance and advice needed.

Alternatively, the Santiago Network could model itself on the way the Nairobi Work Programme (NWP) currently operates – through a network of partners that make action pledges in line with NWP themes and activities; or the Climate Technology Centre & Network (CTCN), which provides technical assistance to developing countries to accelerate the transfer of climate technologies through a network of approved/accredited organisations; or the new Paris Committee on Capacity Building Network which is open to any organisation….

Other potential design options include building the partnership around a set of principles or joint mission statement, the creation of executive and decision making fora or integrating existing partnerships as well as available human and financial resources. Within the wider UN system successful network building has become the subject of some research and it may be useful to consult some of the available (non-legal) literature on the subject to decide on an approach that is likely to provide maximum impact… See for example: https://sustainabledevelopment.un.org/partnerships/guidebook

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[1] Decision 2/CP.20, para 8 (emphasis added).

[2] See “The five-year rolling workplan of the Executive Committee of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts”, annexed to Document FCCC/SB/2017/1/Add.1 (Report of the Executive Committee of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts”).

[3] See “Summary of decision points at Excom 7”, available at https://unfccc.int/event/7th-meeting-of-the-excom-of-the-wim-for-ld-associated-with-climate-changes-impacts (last accessed 2 August 2020). The Expert Group TOR are available at https://unfccc.int/documents/66477 (last accessed 2 August 2020).

[4] TOR, para 8(a).

[5] TOR, para 10.

[6] TOR, paras 13-14.

[7] TOR, para 6.

[8] TOR, para. 17.

[9] Decision 1/CMA.2, para 43 (“Establishes, as part of the Warsaw International Mechanism, the Santiago network for averting, minimizing and addressing loss and damage associated with the adverse effects of climate change to catalyse the technical assistance of relevant organizations, bodies, networks and experts for the implementation of relevant approaches at the local, national and regional level in developing countries that are particularly vulnerable to the adverse effects of climate change”).

[10] Decision 2/CMA.2, para 44.

[11] Decision 2/CMA.2, para 45.