WIM Review

Legal assistance paper

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Date produced: 21/06/2019

  1. Does the mandate of the review of the WIM allow, or provide space, for an aspect of the review to be forward-looking? Or in other words, can the reference to the ‘long-term vision’ of the WIM in para.2(c) of Decision 4/CP.22 (” … Future reviews of the Warsaw International Mechanism should consider, […] its long-term vision that guides ways in which the Warsaw International Mechanism may be enhanced and strengthened, as appropriate;”) be interpreted to mean that there is a mandate for the review of WIM to be forward-looking? Ultimately we want the review to look at the needs vis-a-vis emission trajectories and how they can be met.
  1. In its guidance for future reviews, Decision 4/CP.22 does not mention the governing authority under which the next reviews will be carried out. Which governing body is mandated to receive the outcome of the review of the WIM and adopt the relevant decision?

Advice:

Question 1:

Summary: We think it is arguable that the COP has recommended a mandate for the review of the WIM that has a forward-looking aspect. However, whether this forward-looking aspect encompasses a review of loss and damage needs vis-à-vis emissions trajectories and how they can be met, depends on the meaning of reference to the WIM’s “long-term vision”.

Detail: There is a distinction in 4/CP.22 para. 2(c) between: (i) consideration of “progress on the implementation of the workplan of the Executive Committee”; and (ii) consideration of the WIM’s “long-term vision that guides the ways in which the [WIM] may be enhanced and strengthened”. This distinction is clear from the plain meaning of the terms in para. 2(c), including the use of the phrase “as well as”. Accordingly, the COP has recommended that the mandate for the review of the WIM be broader than just an ex post review of progress on the implementation of the workplan. More specifically, the COP has recommended that the WIM review also considers the WIM’s “long term vision”.

This interpretation of para. 2(c) is reinforced by a comparison with the language in 5/CP.23, para. 5, where the COP noted that “the Executive Committee will evaluate progress made towards implementing its five-year workplan in 2020 and at regular intervals at subsequent meetings”. The ExCom’s work in 2020 is similar to 4/CP.22 para. 2(c) insofar as it refers to a review of progress made towards implementing the ExCom’s workplan. However, it also differs from 4/CP.22 para 2(c) because it has a more limited mandate, which does not include a review of the WIM’s “long-term vision”.

The mandate to consider the WIM’s “long-term vision” is ambiguous. We think that it is a forward-looking mandate, since the reference to the WIM’s long-term vision suggests the future direction of the work of the WIM, as distinct from its current workplan. However, we have not been able to identify any decision that specifically defines the “long-term vision” of the WIM. To achieve the objectives set out in Q1 above, we consider that it would be necessary to argue that the WIM’s “long-term vision” encompasses addressing loss and damage needs vis-à-vis emissions trajectories and how they can be met. We have not been asked to provide an opinion on how likely or easy this would be.

Question 2:

 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”.