Submission by Norway on APA agenda item 7 Modalities and procedures for the effective operation of the committee under the mechanism to facilitate implementation of and promote compliance with the provisions of the Paris Agreement (Article 15, paragraph 2) I. Introduction The Government of Norway is pleased to provide views on modalities and procedures for the effective operation of the committee under the mechanism to facilitate implementation of and promote compliance with the provisions of the Paris Agreement (Article 15, paragraph 2). The Paris Agreement established a mechanism to facilitate implementation of and promote compliance with its provisions (art.15). The mechanism shall consist of a committee which is expertbased, facilitative in nature and functions in a manner that is transparent, non-adversarial, nonpunitive and shall pay particular attention to the respective national capabilities and circumstances of Parties. The composition of the committee is detailed in paragraph 104 of Decision 1/CP.21. Norway considers the establishment of the mechanism with its committee an important element of the Paris Agreement. It provides a possibility for Parties to address challenges that they might face in implementing and complying with the provisions of the agreement and can help to find workable multilateral solutions. It is also a significant lever for the effectiveness of the agreement. Effectiveness depends on the extent to which it is being implemented by Parties including on Parties' compliance with their legally-binding obligations. Implementation and compliance are also indispensable requirements to enhance trust and confidence among Parties. The APA is mandated to develop the modalities and procedures for the effective operation of the committee, to be adopted by CMA1. II. General comments In order to establish modalities and procedures, it would be helpful to develop a common understanding of the terms compliance and implementation. Compliance occurs when the actual behavior conforms to prescribed behaviour. In international law, compliance relates to conformity of state behavior with legally-binding norms (rules) in international agreements or custom. In the context of the Paris Agreement, compliance refers to the fulfillment of Parties individual, legally-binding obligations, i.e. the mandatory elements set out in the Agreement. Obligations can be collective (that is, applying to all Parties) or individual (that is, applying to each Party individually). However, for collective obligations it is impossible to say whether a particular Party s action constitutes compliance. For individual obligations, on the other hand, such determination is possible. Compliance in article 15 aims at capturing Parties fulfillment of those legally-binding, individual obligations. The Paris Agreement has left Parties with few individual, legally-binding obligations, and those which are there are of procedural character. Individual obligations are those which can be identified by using the formulation each Party shall as, for example, contained in articles 4.2, 4.8, 4.9, 4.13 (i.e. communication, information, accounting for NDCs).These obligations are the back-bone of the Agreement and central to its effective functioning and to the successive up-scaling of efforts towards the level of ambition necessary to reaching the long-term temperature goals. The committee is tasked to promote compliance with these mandatory provisions of the agreement. 1
Implementation is a term which captures more broadly than compliance. It relates to the adoption of domestic rules or regulations that are meant to facilitate, but do not in themselves constitute, compliance with legally binding obligations, as well as to fulfilling those provisions of the Agreement which contain certain expectations but are not obligations. Implementation can be of systemic or individual nature. Individual implementation refers to those provisions of the Agreement which contain expectations that Parties take certain action, but do not amount to legally-binding obligations. Examples include the adoption of domestic measures with the aim of achieving the objective of NDCs (art. 4.2), the guiding principles of progression and highest possible ambition (art. 4.3), the adoption of the type of target (art. 4.4), actions to conserve and enhance sinks and reservoirs (art. 5.1), or strengthened cooperation on enhancing adaptation (art. 6.7). Systemic implementation relates to general provisions pertaining to the operationalization of the Agreement. Examples could include: the effective functioning of the enhanced transparency framework (art. 13) or the global stock-take (art. 14), or enhancing education, training, public awareness, public participation and access to information (art. 12). Facilitation of implementation and promotion of compliance may also raise general legal questions which could be addressed by the committee through advisory statements, if requested by a Party. The obligations and commitments under the Paris Agreement apply in the context of common but differentiated responsibilities and respective capabilities, in light of different national circumstances. The committee in its work, however, shall pay attention to national capabilities and circumstances. This can happen in various ways. The most important, however, would lie in the identification of measures to facilitate implementation and to promote compliance. Depending on the identified causes for non-implementation and/or non-compliance, the committee, in consultation with the Party concerned, could recommend certain measures and assistance in order to address those causes. Such assistance could take the form of technical or capacity-building initiatives. It could also assist in bringing parties together in bilateral or multilateral settings that can assist implementation. III. Modalities and Procedures Given the absence of guidance on how the procedures of the committee are to be initiated and conducted and what the outcomes should be, Norway considers the APA mandate to develop modalities and procedures crucial for ensuring the operationalization of the implementation and compliance mechanism. The modalities and procedures should, at the least, cover the following issues: 1. Scope and nature of work 2. Initiation of procedures 3. Modalities for procedures (including outcomes) 4. Decision-making 5. Reporting. 1. Scope and Nature of work The committee s scope of competence is comprehensive by capturing implementation of the provisions across the entire scope of the agreement, addressing, inter alia, mitigation, adaptation, finance, transparency, capacity building, stock-take, loss and damage, including compliance where legally-binding individual obligations exist. Individually mandatory provisions constitute a sub-category 2
of the provisions of the Agreement. The committee could also be tasked to issue advisory statements on general questions of implementation or compliance. While the scope is broad, it is important to recall that the nature of the work of the committee is limited to being facilitative, promoting, non-adversarial and non-punitive. Any kind of sanctions or enforcement actions are therefore outside the scope of the committee s work. 2. Initiation of procedures ( Triggers ) In order to address the broad and comprehensive scope of the committee s mandate, it could initiate its work in several ways, depending on the function to be carried out. Facilitation of implementation should be voluntary for the Party concerned, while promotion of compliance should not (only) depend on voluntary initiation by the Party concerned. Accordingly, the work of the committee to facilitate implementation could be triggered by written submissions from Parties themselves or from the Secretariat together with the Party concerned. For promoting compliance, the initiation of procedures should be possible also independently of the concerned Party s consent. In order to promote compliance, the committee should be able to independently start procedures by itself ( self-trigger ) or by a request by the CMA. The following triggers could apply: Specific Submissions by Parties or the UNFCCC Secretariat (with respect to Parties implementation and compliance) Self-trigger (with respect to compliance) Request by CMA (with respect to compliance). a) Implementation and compliance Procedures to facilitate implementation could be initiated by: Written submissions from any Party or a group of Parties that, despite its best efforts, is or will be unable to fully implement the provisions of the Agreement. Written submissions by any Party or a group of Parties, with respect to another Party s progress made in implementation, in particular in implementing and achieving its NDC. A Party or group of Parties intending to make such submission shall inform the Party whose implementation is in question. Written submission by the UNFCCC Secretariat on behalf of or together with a Party or a group of Parties with regard to that Party s/those Parties implementation. With respect to compliance, in addition to the triggers above, proceedings could be initiated by: Written submission or request by the UNFCCC Secretariat with regard to a Party s or a group of Parties compliance. In order to initiate a non-compliance procedure, the Secretariat could send a request to the committee, independent of the Party or Parties concerned. The committee itself. Based on the information available through the information channels under the Paris Agreement, the committee itself could initiate proceedings with regard to a Party's compliance. Such a trigger could be the most effective in ensuring an impartial or 3
functioning compliance system. The various information channels will need to be decided upon. Request from the CMA. In some cases it might be necessary to retain the competence of the CMA to ask for initiation of procedures against a Party with the aim of assessing whether that Party is in non-compliance and what the reasons for its performance challenges are. For the request of the CMA in this matter, the Party concerned shall not have a vote. b) Advisory statement Any Party may make a request to the committee to issue an advisory statement on general, legal questions of implementation or compliance. 3. Modalities for procedures Depending on the type of procedure, the modalities would differ: a) Facilitation of implementation For facilitating implementation the committee should provide a voluntary forum for Parties to discuss and address issues and challenges with respect to the implementation of the provisions of the Agreement. Such issues could, for example, be difficulties and challenges that Parties face in implementing and/or achieving their NDC through the pursuit of domestic measures. This procedure could link up to the outcome report from the technical expert review and/or the facilitative, multilateral consideration of progress under art. 13, paragraph 11. The committee should consider the submissions that trigger procedures with the aim to determine the matter of concern and assist in its resolution. The committee as a facilitative forum to address implementation challenges could be a meeting place to share information on the challenges experienced, lessons learned and for factoring bilateral or multilateral solutions to the challenges identified. As part of this process, the committee may, to the extent it considers it appropriate and with the consent of the Party concerned, provide a Party, after coordination with that Party, with suggestions, non-binding recommendations and/or information on, for example: Strengthening domestic capacities, institutions or regulations, How to access financial and technical support, including capacity-building and technology transfer, How to connect with other parties or other actors interested in considering cooperative approaches to address the concern. The suggestions, non-binding recommendation and/or information should only be provided to the Party concerned. b) Promotion of compliance The task of the committee to promote compliance should be carried out according to clear guidance. When promoting compliance, the committee should seek clarification and understanding of the causes of non-compliance, identify the challenges that the Party concerned is facing - and work with the Party concerned to rectify the problem. 4
In doing so, the committee can ask for a clarification from the Party concerned; and for an identification of the challenges faced. Most cases of non-compliance may be due to a lack of capacity. Parties may lack the technical ability, human resources or capacity to do so. These challenges can be identified here. The committee, in promoting compliance, could further ask or elaborate, as appropriate and in cooperation with the Party or Parties faced with compliance challenges, a compliance action plan. A compliance action plan gives the Party or Parties concerned the possibility to explain what it intends to do or what it lacks in resources in order to comply with its obligations. The compliance action plan should focus on: An analysis of the causes of non-compliance; A description of measures to be taken to restore compliance (including benchmarks, objectives and indicators of the plan), and An indicative timetable or timeline for implementing these measures. The plan should also contain any follow-up arrangements for progress reporting to the committee. After that timeline has expired and in case non-compliance still prevails, the committee could issue a declaration of non-compliance. If, after undertaking the compliance procedure and taking into account the cause, type, degree and frequency of compliance difficulties, as well as the capacity of the Parties whose compliance is in question, the committee considers it necessary to pursue further measures to address a Party s compliance difficulties, it may recommend to the CMA that it considers: Further support for the Party concerned in form of technical assistance and/or capacitybuilding; or Issuing a cautionary statement and providing advice regarding future compliance in order to help Parties to comply with the provisions of the Paris Agreement and to promote cooperation between Parties. The Party whose compliance is at issue should be invited to participate in the consideration of the committee. However, this Party should not take part in the elaboration and adoption of the conclusions or recommendations by the committee. The Party whose compliance is in question may present responses and/or comments at every step of the proceedings and be given opportunity to comment on the conclusions and recommendations formulated by the committee. Unless the committee and the Party whose compliance is in question agree otherwise, meetings dealing with specific submissions should not be open to the public or Parties other than the Party whose compliance is in question. This procedure could, however, be coupled with public hearings and written statements and the possibility for appeal to the CMA and review of a non-compliance declaration or statement. c) Advisory statement If a Party has requested an advisory statement on a legal question of implementation or compliance, the committee shall preliminarily assess the question and decide whether to give an authoritative statement. If the committee decides to render an advisory statement on that question, it should give such statement within 3 months after the request has been made.. 5
4. Decision-making The committee should make every effort to reach agreement on matters of its competence by consensus. Where this is not possible, any decision shall be taken by a two-third majority of the members present and voting or by 6 members, whichever is the greater. Nine members of the committee shall constitute a quorum. 5. Reporting The committee should report to the CMA at each session on the work it has carried out to fulfil its functions for the information and/or the consideration of the CMA. 6