Preliminary material in preparation for the first iteration of the informal note

Transcription

1 Preliminary material in preparatin fr the first iteratin f the infrmal nte APA agenda item 7: Mdalities and prcedures fr the effective peratin f the cmmittee t facilitate implementatin and prmte cmpliance referred t in Article 15.2 f the Paris Agreement Versin (09 Nvember 2017, at 15:00) These draft elements have been prepared by the c-facilitatrs f the negtiatins n this agenda item under their wn respnsibility, n the basis f the deliberatins by Parties at this sessin and the views they have submitted. These elements are preliminary and shuld nt be cnsidered as final in any way; they are ffered as a basis fr wrk and d nt prejudge further wrk r prevent Parties frm expressing their views at any time. It is recgnized that the utcme f deliberatins n this item will frm part f the verall utcme under the Paris Agreement Wrk Prgramme. 1 I. Intrductin / mandate / purpse Article 15, paragraph 1, f the Paris Agreement established a mechanism t facilitate implementatin and prmte cmpliance with the prvisins f the Agreement. In accrdance with Article 15, paragraph 2, f the Agreement, this mechanism will cnsist f a cmmittee (hereinafter the Cmmittee ) that shall be expert-based and facilitative in nature and functin in a manner that is transparent, nn-adversarial and nn-punitive, paying particular attentin t the respective natinal capabilities and circumstances f Parties. Article 15, paragraph 3, f the Agreement specifies that the Cmmittee perate under the mdalities and prcedures t be adpted at CMA1 and is t reprt annually t the CMA. Paragraph 102 f decisin 1/CP.21 specifies that the Cmmittee is t have 12 members t be elected n the basis f equitable gegraphical representatin. The COP, thrugh paragraph 103 f the same decisin, requested the APA t develp mdalities and prcedures fr the effective peratin f the Cmmittee, with a view t the APA cmpleting its wrk n such mdalities and prcedures fr cnsideratin and adptin at CMA1. During the furth part f the first sessin f the Ad-hc Wrking Grup n the Paris Agreement (APA 1.4), held in Nvember 2017, Parties cntinued t discuss pssible mdalities and prcedures fr the effective peratin f the Cmmittee t facilitate implementatin and prmte cmpliance referred t in Article 15.2 f the Paris Agreement. II. Crss-cutting and verarching cnsideratins / relevant cntext / general elements Natinal capabilities and circumstances - The mdalities and prcedures fr the Cmmittee will need t peratinalize the language in Article 15 that the Cmmittee shall pay particular attentin t the natinal capabilities and circumstances f Parties (NCCs). Sme appraches t such peratinalizatin include the design f the mdalities and prcedures reflecting different treatment f develped and develping 1 Inputs that have been added based n the discussins in the infrmal cnsultatins and frm the submissins f Parties are highlighted. Narrative and cmmentary are displayed in italics. Page 1 f 10

2 Parties r inclusin f a specific mandate fr the Cmmittee t cnsider NCCs n a case-by-case basis at varius stages f the prcedure. Interlinkages with ther arrangements - There may be pssible interlinkages with ther arrangements and bdies under the Agreement and the Cnventin, including the transparency arrangements under Article 13, the supprt arrangements and the glbal stcktake. Further linkages t ther arrangements under the Paris Agreement may exist, such as the frum n respnse measures. Views n the apprpriateness f such interlinkages vary. If any ptential interlinkages are peratinalized thrugh a number f the elements under Sectin III belw, sme f the crss-cutting cnsideratins in this regard include: the need t avid duplicatin f effrt with respect t all arrangements; the need t ensure independence f the varius supprt arrangements and respective bdies; and the imprtance f the link t the supprt arrangements in the cntext f the facilitative rle f the Article 15 Cmmittee. Discretin - Cnsideratin may have t be given as t the degree f discretin that the Cmmittee shuld have in exercising its functins and the pssible parameters fr the use f discretin. [Any further crss-cutting / verarching cnsideratins...] III. Elements f relevant guidance 2 A. Underlying Principles (previusly Purpse and Nature) 1. Established under the Paris Agreement; Nthing in the design r peratins f the Art 15 Mechanism can change the cntent r legal character f the Paris Agreement (PA) s prvisins. 2. Identificatin and further elabratin f cre principles: Views: - (1) Art 15 Mechanism must reflect equity and the principle f cmmn but differentiated respnsibilities and respective capabilities (CBDR-RC) in line with the Cnventin The mdalities need t respect and be infrmed by the cre principles, including with regard t nature, scpe, functins, cmmencement, measures/utputs, and prcedures This includes differentiatin between develped and develping cuntries - (2) The PA already addresses CBDR-RC in the light f different natinal circumstances Differentiatin is already embedded in the PA prvisins, and is embedded in Article 15 in a particular way. Art 15 mechanism is applicable t all Parties B. Purpse and Nature (previusly Purpse and Nature) 1. Purpse - Facilitate implementatin and prmte cmpliance (Art 15.1) - Encurage, assist and enable Parties t implement prvisins and cmply with their bligatins 2 Headings and subheadings are withut prejudice t the eventual mdalities and prcedures, but a tl t cllect and rganize issues fr the purpses f this dcument. Page 2 f 10

3 - Prevent situatins f nn-implementatin r nn-cmpliance - Thereby: Enhance effectiveness and durability f the Agreement Enhance credibility, cnfidence, cnsistency and effectiveness f actins, and trust amng Parties Cmplement ther prcesses and mechanisms under the PA 2. Nature - Functining in a facilitative, transparent, nn-adversarial, nn-punitive manner (Art 15.2) - Expert-based and facilitative (Art 15.2) - Paying particular attentin t the respective natinal capabilities and circumstances f Parties (Art 15.2) - Transparent (see belw: Prcedural matters) (Art 15.2) - Nn-punitive (Art 15.2), i.e.: N enfrcement N penalties r sanctins - Nn-adversarial, (Art 15.2), i.e.: - Cnsultative Nt a mechanism t settle disputes Respecting natinal svereignty C. Institutinal Arrangements (previusly Structure and cmpsitin) 1. Structure: a single cmmittee f 12 members 2. Cmpsitin and Membership: - Expert-based (Art 15.1) - Membership as agreed and specified in Decisin 1/CP.21 para.102: 3 (i) Due regard t the members expertise and equitable gegraphic representatin (ii) taking int accunt the gal f gender balance; - Mandate f 3 years - Cmmittee members serve in their persnal capacity - Alternate members - Prmte smth transitin fllwing changes in membership (staggering f terms) 3. Electin: - Members t be elected by CMA (decisin 1/CP.21 para 102) - Resignatin and replacement - Timing f first electin 3 12 members with recgnized cmpetence in relevant scientific, technical, sciecnmic r legal fields t be elected by the CMA n the basis f equitable gegraphical representatin, with tw members each frm the five reginal grups f the United Natins and ne member each frm the small island develping States and the least develped cuntries, while taking int accunt the gal f gender balance. Page 3 f 10

4 4. Cnflict f interest - Members t abstain frm participatin in deliberatins and decisin-making with respect t their wn Party 5. Bureau - Cnsisting f a Chair, Vice-Chair and 3 Cmmittee members (representatin frm 5 UN reginal grups); Chair and Vice Chair elected frm amngst Cmmittee members with peridical rtatin n a gegraphical basis; rules fr replacement f Chair and Vice Chair. 6. Frequency f meetings D. Cnduct f meetings (previusly Prcedural Matters) 1. Transparency f prceedings - Presumptin f penness f meetings and dcuments - Cmmittee t deliberate and adpt decisins in a clsed sessin 2. Main decisin-making rules - Decisins Views: (1) by cnsensus nly (2) by cnsensus r a 2/3 majrity members present and vting as a last resrt (3) by cnsensus r at least 3/4 majrity members present and vting as a last resrt - Qurum (3/4 f the members) - Prcedures fr intersessinal (electrnic) decisin-making t enhance efficiency and reduce cst - Any decisins t be supprted by reasning - Rules f prcedure (culd be develped by the Cmmittee fr cnsideratin by the CMA) E. Scpe (previusly Scpe and Functins) Views - (1) Cmprehensive scpe (all prvisins): In principle, all prvisins f the Agreement, withut restricting scpe frm the utset Cvering mandatry prvisins and nn-mandatry prvisins - (2) Scpe in light f functin: Facilitatin f implementatin fr all prvisins and prmtin f cmpliance fr legally binding prvisins (3.1) nly individual (3.2) als cllective - (3) Obligatins under Articles 4, 7, 9, 10, 11 and 13 Cmmn r cllective bligatins (bligatins shared amng certain Parties) shuld nt be per se excluded E.g. under Art 9 (several shall prvisins) But cllective aspiratins (Art 2.1) r cllective assessment (Art 14), are nt subject t the Art 15 Page 4 f 10

5 Nt pssible t assess cmpliance f an individual Party with a cmmn r cllective bligatin - (4) Legally binding prvisins n individual bligatins f Parties As the start/as a minimum Shuld be priritized (nting small size f Cmmittee) May be bradened if/as gaps are being identified - (5): Differentiatin f scpe in line with the differentiatins in the PA prvisins (e.g. Art 9.1, 9.3 and thers) - (6) One f the abve (1-5) as well as relevant prvisins f decisins by the CMA (e.g. mdalities, prcedures and guidelines (MPGs)) Prvisins relating t dmestic actin, cntributins made by Parties in their NDCs: Nt apprpriate under Art 15 due t the natinally-determined character f NDCs and svereignty ver their cntent NCC t be taken int accunt with respect t scpe. Scpe may depend n hw the prcedure was initiated. F. Functins (previusly Scpe and Functins) Facilitate implementatin and prmte cmpliance (Art 15.1): Views - (1) Tw distinct functins: With differences based n scpe, triggers, and/r measures; (1.1) As a dual functin; distinct but cmplementary; nt mutually exclusive; (1.2) Tw distinct rles, reflecting differentiated apprach thrughut PA and natinal circumstances; - (2) Cntinuum within the spectrum f functins: With the difference being determined by what is the apprpriate measure/utput in each case; Overall fcus n facilitatin and prmtin, in line with the facilitative nature; NCC t be taken int accunt with respect t functins. G. Initiatin f cnsideratin (previusly Cmmencement f Cmmittee activity (triggers/referral/initiatin)) 1. Self-referral nly: Cmmittee activity may be initiated by the Party cncerned Only self-referral is cnsistent with facilitative nature; Other referrals wuld risk the Cmmittee becming pliticized, adversarial, intrusive and redundant; Only self-referral as a start, further types f referral t be cnsidered depending n elabratin f ther elements under the PA; Self-referral alne is insufficient; shwn by experience f ther mechanisms; Other referrals by a neutral third party pssible under certain cnditins and clear guidance; Page 5 f 10

6 Pssibility f vluntary Party s self-referral based n utputs frm the transparency framewrk under Art 13 4 [Pssible elements reflecting any linkages t transparency arrangements (culd be further explred)] 2. Self-referral and ther means f initiatin may include (views belw are nt necessarily mutually exclusive): Views: - (1) By anther Party/grup f Parties: Any Party shuld be able t submit with regard t anther Party; Pssible under certain cnditins and safeguards; If fllws cnsultatin and with cnsent f Party cncerned; Culd be adversarial, t plitical, pen t misuse. - (2) By way f an autmatic/bjective initiatin Fr legally-binding individual bligatins, fr clearly identifiable binary issues (yes/n) E.g. whether Party submitted a NDC (recrded in registry) r a reprt required under Art 13 PA [Pssible elements reflecting any linkages t transparency (culd be further explred)] Bdy t initiate t be decided; e.g. culd be Cmmittee, r Secretariat, r expert review team - (3) By the Cmmittee itself: - (4) By the CMA: Fr all issues (with mre details specified in mdalities, e.g.) Ensuring neutral, transparent, nn-adversarial, nn-punitive nature, and/r with cnsent f the Party cncerned As a preventive apprach, t help a Party befre getting in a situatin f nncmpliance Fr systemic issues On the basis f infrmatin: Gathered and prvided by the Secretariat Frm transparency arrangements f Art 13 [Pssible elements reflecting any linkages t transparency (culd be further explred)] Prvided by ther bdies, mechanisms and arrangements under PA Fr systemic issues CMA t retain cmpetence t request an activity by the Cmmittee In such a decisin by the CMA the Party shuld recuse itself - (5) Differentiated apprach: Fr develped cuntries als ther referrals pssible (e.g. autmatic/bjective trigger); fr develping cuntries self-referral nly. 3. Admissibility: E.q. fr self-referral, Party cncerned t prvide infrmatin n effrts made t use ther arrangements and mechanism; NCC t be taken int accunt with respect t the initiatin f Cmmittee activities 4 The symbl indicates areas where the mdalities and prcedures fr the peratin f the Art 15 Cmmittee may have linkages t ther areas f the PA that sme Parties cnsidered culd be further explred. The respective area f interlinkages is either identified in the relevant sub-bullet r may need t be further explred. Page 6 f 10

7 H. Surces f infrmatin 1. Drawing n additinal expertise 2. Safeguards fr cnfidential infrmatin 3. Pssible surces f infrmatin I. Prcess Infrmatin prvided by the Party cncerned Registries under the Paris Agreement Infrmatin frm the transparency framewrk, e.g. frm the technical expert teams [Pssible elements reflecting any linkages t transparency (culd be further explred)] Infrmatin frm the supprt arrangements [Pssible elements reflecting any linkages t supprt arrangements (culd be further explred)] [Placehlder fr any elements f the Cmmittee s prcess fr cnsidering an issue (culd be elabrated)] - Participatin f the Party cncerned (can be peratinalized thrugh the elements f the prcess) Participatin in all stages f the prcess, including: At the time f initiatin Identificatin f causes, challenges and cnstraints In identificatin f measures, cnclusins r recmmendatins Develpment f actin plans Cnsideratin f natinal capabilities and circumstances Prir t any decisin Frms Cnsultatin at different stages Dialgue with Party f facilitative nature Written inputs Representatin at meetings, including right t make representatins and pprtunity t respnd Natural justice and due prcess Right t fair hearing and recurse NCC t be taken int accunt with respect t treatment f the Party cncerned - Natinal capabilities and circumstances f Parties (NCC) (can be peratinalized thrugh the elements f the prcess): T be taken int accunt in prcedural and substantive matters, including with regard t the treatment and participatin f the Party cncerned. - Areas and types f flexibilities that can be affrded t Parties might include (can be peratinalized thrugh the elements f the prcess): Cnsultatins/prcess, e.g. timelines fr the Party cncerned t respnd r prvide infrmatin Assistance prvided t a Party during the prcess befre the Cmmittee; Page 7 f 10

8 Measures and utputs, e.g. by cnsidering the Party s NCC when determining the measures and utputs, including supprt - Substantive standards f actin. e.g. by applying a lwer burden in standard f actin. Need t balance prprtinality, predictability and flexibility. - Prcess may depend n hw the prcedure was initiated. J. Measures and utputs 1. General cnsideratins: - Nature and principles f the mechanism t infrm any measures and utputs - Cmmittee, when identifying apprpriate measures/utputs, t take int accunt: Natinal capabilities and circumstances (NCC) Causes, degree, nature and frequency f nn-cmpliance Lack f capacity versus lack f will Taking int accunt capacities and technlgy needs f develping cuntries Relatinship between measures/utputs and the respective functins: Views: - (1) Measures and utputs depending n the functins f facilitating implementatin (e.g. advice and recmmendatins) and prmting cmpliance (e.g. cmpliance plan, statement f cncern, findings f nn-cmpliance) - (2) Measures and utputs as incremental steps alng a cntinuum, while keeping in mind the facilitative and nn-punitive nature Depending n the scpe (e.g. a narrw scpe culd mean a wider range f measures) Range f measures may depend n hw the prcedure was initiated. 2. Range f measures (views, nt necessarily mutually exclusive): - Sharing f infrmatin, experience and lessns learned; - Identificatin f challenges faced by the Party cncerned; - Actin plan/implementatin plan/cmpliance plan Initiatin/request fr elabratin f implementatin/cmpliance plan Views: (1) Whether nly upn request by the Party cncerned (2) Whether als by the Cmmittee (2.1) With cnsent f the Party cncerned (2.1) Withut need fr cnsent in case f nn-cmpliance Overall purpse f the plan Facilitative A radmap t bring the Party cncerned t imprved implementatin/ int cmpliance Pssible elements f the plan: Descriptin f implementatin challenges/causes f nn-cmpliance Page 8 f 10

9 Descriptin f measures the Party intends t take t imprve implementatin/achieve cmpliance Timelines Fllw-up arrangements (including infrmatin t Cmmittee abut prgress) Develpment f the plan With Cmmittee s assistance, if requested by the Party cncerned In a way that is respectful f the natinally determined nature f the NDCs - Recmmendatins and suggestins (t the Party cncerned) - Infrmatin and advice E.g. fr nn-binding elements - Facilitating access t finance, technlgy and capacity-building supprt [Pssible elements reflecting any linkages t supprt arrangements (culd be further explred)] - Early warning: Infrmatin n accessing supprt, e.g. types f supprt available prmte cmpliance Safeguards t avid creating perverse incentive t be cnsidered Pssible requirements t exhaust effrts under ther arrangements Access t/refer t/send technical experts t assist Party cncerned Recmmendatins/referral t relevant bdies related t supprt; fcus n gaps in the prvisin f technlgy, finance and capacity-building Can be useful t preempt situatins f nn-cmpliance Wuld be nt be cnsistent with facilitative, nn-punitive nature - Statements f cncern / Cautinary statements: Can be useful t preempt situatins f nn-cmpliance Wuld be nt be cnsistent with facilitative, nn-punitive nature - Declaratins/Findings/Cmmunicatins in relatin t cmpliance: Cnclusin that a Party has nt cmplied with a prvisin is nt punitive Including identificatin f causes f nn-cmpliance and frequency f nncmpliance May be issued if nn-cmpliance cntinues after expiry f timeline specified in the plan Wuld nt be cnsistent with facilitative and nn-punitive nature - Any measures related with Article 6 PA [Pssible elements reflecting any linkages t Article 6 (culd be further explred)] K. Fllw-up by the Cmmittee [Placehlder fr any elements (culd be elabrated)] L. Identificatin f systemic Issues - At the request f CMA - Based n systemic challenges identified in the curse f the Cmmittee s wrk - T be reflected in the reprts t CMA Page 9 f 10

10 - Culd serve as backgrund infrmatin fr Glbal Stcktake [Pssible elements reflecting any linkages t the GST (culd be further explred)] - Culd infrm and/r be infrmed by supprt arrangements [Pssible elements reflecting any linkages t supprt arrangements (culd be further explred)] Issuing advisry pinins n interpretatin f prvisins wuld nt be apprpriate in light f the nnjudicial nature M. Relatinship with the Cnference f the Parties serving as the meeting f the Parties t the Paris Agreement - Cmmittee under the guidance f CMA - Reprts annually t CMA (Art 15.3) - Cntent f reprting (views nt necessarily mutually exclusive): Views: (1) Reprts n its wrk (2) Reprting n findings/measures in individual cases: (2.1) Reprts n all t CMA (2.2) Infrms CMA nly if requested by the Party cncerned (3) A summary f its activities and actins taken (4) Reprts t flag systemic issues - Recmmendatins t the CMA (views nt necessarily mutually exclusive): (1) If Cmmittee cnsiders the measures implicate imprtant issues under the PA r the authrity f ther PA bdies (2) In case f nn-cmpliance f Party cncerned: t prvide technical assistance; capacity-building (3) In cases f repeated nn-cmpliance (4) In cases f systemic issues regarding implementatin and cmpliance (5) On vercming systemic barriers t implementatin and cmpliance (6) Only at the request f the Party cncerned; and the CMA is nt required t take any decisin - CMA t take nte f Cmmittee s findings in individual cases N. Review f the mdalities and prcedures - Built-in review based n the experience with the Article 15 Cmmittee and ther relevant arrangements - Peridic review f the mdalities and prcedures by CMA O. Secretariat - Secretariat supprt Page 10 f 10