Article 15 – Implementation and Compliance Mechanism - Paris Agreement
For Small Island Developing States (“SIDS”) implementation of and compliance with the Paris Agreement (“Agreement”) is critical. A key challenge to avoid the devastating effects of exceeding a 1.5 °C increase in global temperature is to ensure that the ‘Paris Rulebook’, which will be adopted in 2018 at COP24, employs a strong and sustainable implementation and compliance mechanism (“Mechanism”). Whilst Article 15 of the Agreement lays out the foundations of the Mechanism, there are still overarching issues that need to be addressed and are currently being negotiated by the Ad Hoc Working Group on the Paris Agreement (“APA”). This brief outlines Article 15, reviews key outstanding issues and puts forward policy recommendations on behalf of SIDS to be incorporated into the ‘Paris Rulebook’. Information in this brief is based upon the UNFCCC’s Informal Note (UNFCCC, 2017a) and Party Submissions on Agenda item 7 (UNFCCC, 2017b).
Article 15 – Implementation and Compliance Mechanism
Overview of Outstanding Issues
PURPOSE AND NATURE
Under Article 15 of the Agreement, governments agreed to establish a mechanism, consisting of an expert-based committee (“Committee”), “to facilitate implementation of and promote compliance with the provisions of this Agreement” (UNFCCC, 2015). The Mechanism must be facilitative and should operate in a non-punitive and non-adversarial manner, ensuring specific attention is drawn to parties’ National Capabilities and Circumstances (“NCC”).
STRUCTURE AND COMPOSITION
Paragraphs 102-103 of decision 1/CP.21 stipulate that the Committee:
Is elected by the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (“CMA”);
Consists of 12 expert-based, geographically-balanced and gender-balanced members;
Operates under modalities and procedures developed by the APA;
Reports annually to the CMA.
It remains undecided whether:
Committee members should serve in their personal or expert capacity;
Alternate members are needed;
Changes in membership require staggered elections to ensure a smooth transition.
SCOPE AND FUNCTIONS
The scope of work of the Committee is not specified in the Agreement. There are three main differing views on its coverage:
Includes all provisions of the Agreement;
Includes only mandatory obligations of the agreement (Articles 4.2, 4.3, 4.8, 4.9, 4.13, 9.1, 9.5, 13.7);
Includes all provisions with regards to facilitating implementation and only mandatory provisions with regards to promoting compliance.
A prevailing view is that there should be two separate branches to the Committee (point 3 above) (UNFCCC, 2017a). This would require either two branches under the same Committee or a single Committee with two distinct functions (Voigt, 2016).
Potential linkages with other provisions of the Agreement, namely the transparency framework (Article 13) and global stocktake (Article 14), is an overarching issue. Additionally, parties propose potential linkages with support mechanisms related to technology transfer, finance and capacity-building, such as the Standing Committee on Finance (LDC Group, 2017). Some parties maintain that linkages with these provisions will avoid duplication and add value to the arrangements (Biniaz, 2017:2). Others consider it to be too soon to address this issue or not appropriate to create such linkages (LMDC, 2017:8).
National Capabilities and Circumstances
Some parties highlight the importance of differentiation and the need for it to be explicitly built into the modalities and procedures of the Mechanism (LDC Group, 2017; AOSIS, 2017a). This includes any additional support and/or flexibility required by developing countries or SIDS. Other parties consider this to be sufficiently covered in the Agreement under Article 2 and therefore believe differentiation should be addressed on a case-by-case basis by the Committee (Japan, 2017:3; Australia, 2017:3).
Whilst some parties favour public proceedings (LDC Group, 2017), others believe that proceedings should allow for closed sessions, mainly to encourage parties to initiate procedures on behalf of themselves (see INITIATION OF PROCEDURES).
There are split opinions on whether decisions should be executed by consensus only or a two-thirds (or three-quarters) majority vote as a last resort (UNFCCC, 2017a).
INITIATION OF PROCEDURES
‘Triggers’ that would bring a matter to the Committee and initiate procedures are not prescribed in the Agreement (Aganaba-Jeanty, Annissimov and Fitzgerald, 2017). Issues could be brought forward in various ways before the Committee:
Some parties consider self-trigger to be the only facilitative method to initiate procedures (Rajamani, 2017). One reasoning for this is that recognising other triggers could draw out negotiations as it may stimulate further political debates (LMDC, 2017:5). A further rationale is that employing other triggers risks contradicting the non-adversarial nature of Article 15. Other parties maintain that relying solely on self-trigger is inadequate and risks inactivity (AOSIS, 2017a). They propose that, alongside appropriate safeguards and consultations, other triggers should be used.
MEASURES AND OUTPUTS
It is agreed that the ‘non-punitive’ nature of the Mechanism must guide the outputs; however, no precise measures or outputs are specified within the Agreement. The outputs will relate directly to the scope and function of the Mechanism (see SCOPE AND FUNCTIONS). If the Mechanism employs two distinct functions, then the outputs can be categorized into these two categories. If the Mechanism adopts a continuum approach towards functions, then outputs will be addressed on a discretional case-by-case basis. If the Mechanism has only one facilitative function, then all outputs will be advisory and non-binding (UNFCCC, 2017a).
Sharing of experiences, information, opinions, reports, interviews and statements;
Action Plan – a roadmap including potential timelines and follow-ups to advise and guide a party;
Recommendations and assistance with regards to technology, finance and capacity-building access, ensuring consideration is given to parties’ NCCs and that they are directed to the relevant body;
Some parties propose the use of cautionary statements or declarations of non-compliance, whilst others discard this as punitive.
RELATIONSHIP WITH THE CMA
As stipulated in Article 15(3), the Committee must report annually to the CMA (UNFCCC, 2015). The content of these reports is unspecified in the Agreement. It must be decided whether the content should: a) provide a general account of all the Committee’s work; b) focus on individual party data; c) summarise the Committee’s work; d) focus on systematic disputes. Furthermore, it is undecided whether the Committee should make recommendations to the CMA and the form of these recommendations.
Policy Recommendations: Small Island Developing States
Presided over by Fiji, COP23 is referred to as the ‘Island COP’ (Bickersteth, 2017). Despite this, the Party submissions and Informal Note demonstrate slow progress and continued opposition to a strong implementation and compliance mechanism. This is particularly disconcerting for SIDS. Therefore, I would recommend the following:
STRUCTURE AND COMPOSITION
Committee members to serve in a personal capacity as they are independent experts that should not be accountable to a single party - their contribution should be in the general interest.
Alternate members are necessary to avoid any delays in proceedings and ensure no conflict of interest within the Committee. An alternate member is only required at meetings when the member is absent or disqualified.
SCOPE AND FUNCTIONS
The Committee should have two distinct functions:
Further discussions are required on potential additional mandatory elements of the Agreement. I recognise the sensitivity of this, however, believesthese discussions must be had, whilst keeping in mind the potential deterrent effect that further mandatory requirements may have on participants (Voigt, 2016).
The scope of the Committee should encompass all provisions of the Agreement, with particular consideration given to Articles 13 and 14.
Regular inter-sessional workshops should take place to discuss systematic implementation issues. Additionally, an annual inter-sessional technical paper to the CMA would facilitate information sharing and assist parties with implementation.
Linkages should be made with support mechanisms under the Agreement, especially within areas of technology transfer, finance and capacity-building. I propose that this could be facilitated by allowing Chairs of these committees to participate in the work of the Committee.
National Capabilities and Circumstances
All procedures and outcomes must take into consideration differentiation between parties. This may, for example, include additional assistance or consultation for certain Member States (LDC Group, 2017).
SIDS and developing countries have significant capability and circumstance constraints and therefore require additional flexibility and support.
Full transparency is required throughout all procedures to ensure trust in the Committee and accountability. All relevant meetings and documentation should be made publically available.
Key decision-making rules should be voted on by consensus only. This is in the interest of SIDS as it guarantees that no decision is made against the will of an individual party or minority group and ensures a commitment is made towards finding a solution that is supported by all (Brunnée and Toope, 2010).
INITIATION OF PROCEDURES
A range of triggers should be included in the Mechanism to avoid inactivity.
A 3rd Party Trigger should be considered, particularly with regards to Convention bodies (LMDC, 2017:6) but also public and private actors such as businesses and NGOs. I recognise that for this to be possible an extensive range of safeguards and well-grounded modalities must be put in place to ensure that this range of triggers is not used in a malicious, adversarial manner and minimise potential concerns of politicisation (AOSIS, 2017a).
MEASURES AND OUTPUTS
My output recommendations build on the incremental process put forward by AOSIS (AOSIS, 2017b).
With regards to the implementation of non-mandatory provisions, I recommend that Process 1 (below) should be followed.
With regards to the compliance of mandatory provisions, I recommend that Process 1 (below) and subsequently Process 2 (below) should be followed.
PROCESS 1 – Implementation and Compliance Steps
PROCESS 2 – Compliance Steps
N.B. Not all steps are suitable for every circumstance (AOSIS, 2017b).
The Committee should make referrals to non-state actors for recommendations when appropriate. Non-state actors have significant direct and indirect influence on climate change governance (Bäckstrand, Kuyper, Linnér & Lövbrand, 2017). These indispensable non-state actors provide innovation, expertise in specific fields and country-specific knowledge. They could also support the review team by either:
a. Becoming a member of the expert review team;
b. Providing inputs for the expert review team.
RELATIONSHIP WITH THE CMA
The Committee should with regards to systematic implementation issues or repeated situations of non-compliance.
The annual report to the CMA should include information on systematic implementation issues, situations of non-compliance and cases requiring assistance from appropriate bodies.
At COP23 attention was drawn towards the distributed ledger technology – ‘Block chain’ technology. Whilst still in its early stages, the potential of block chain technology to support implementation and compliance monitoring could be transformative and must be further explored (Aganaba-Jeanty, Annissimov and Fitzgerald, 2017).
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AOSIS. (2017a). Submission by the Republic of Maldives on behalf of the Alliance of Small Island States. 12th April 2017. [PDF]. Available at: http://www4.unfccc.int/Submissions/Lists/OSPSubmissionUpload/167_325_131367466767372283-AOSIS_Submission_APA%20Agenda%20item%207.pdf [Accessed: 20/01/18]
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LDC Group. (2017). Submission by the Federal Democratic Republic of Ethiopia on behalf of the Least Developed Countries Group (LDC Group). 28th September 2017. Available at: http://www4.unfccc.int/Submissions/Lists/OSPSubmissionUpload/786_360_131510546305164216-LDC%20Group%20submission%20on%20APA%20agenda%20item%207.pdf [Accessed: 20/01/18]
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