SUBMISSION BY NORWAY ON APA AGENDA ITEM 7

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1 SUBMISSION BY NORWAY ON APA AGENDA ITEM 7 The Government of Norway is pleased to submit its views on Modalities and procedures for the effective operation of the committee to facilitate implementation and promote compliance referred to in Article 15, paragraph 2, of the Paris Agreement. In doing so, we would like to recall our submission to the APA on the compliance and implementation committee, dated 3 November 2016, available at: Norway%20submission%20compliance.pdf Norway considers the committee to facilitate implementation and promote compliance referred to in Article 15 ( Art. 15 committee ) an important building block of the Paris Agreement. Implementation and compliance transform Parties plans into action. In facilitating and promoting such actions, the committee serves to enhance the legitimacy, effectiveness and durability of the Agreement. It provides the space and possibility for Parties to address challenges that they might face in implementing and complying with the provisions of the Agreement and can assist in finding workable multilateral solutions. If carefully designed, the operation of the committee can become a significant lever for the agreement s effectiveness. Effectiveness depends on the extent to which Parties implement their commitments and comply with their legally-binding obligations. Implementation and compliance are also indispensable requirements to enhance trust, credibility and confidence among Parties and between Parties and their constituencies, stakeholders and citizens. We will in the following consider the three issues set out in the APA conclusions contained in UN Doc. FCCC/APA/2016/L.4, paragraph 18. I. SPECIFICATION OF THE MODALITIES AND PROCEDURES REQUIRED FOR THE EFFECTIVE OPERATION OF THE COMMITTEE REFERRED TO IN ARTICLE 15, PARAGRAPH 2, OF THE PARIS AGREEMENT 1. PURPOSE AND NATURE OF THE COMMITTEE In order to specify the modalities for the operation of the committee, it is important to recall its purpose and nature as set out in article 15 of the Paris Agreement. 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 expert-based, facilitative in nature and functions in a manner that is transparent, non-adversarial, non- punitive and shall pay particular attention to the respective national capabilities and circumstances of Parties. 1

2 The committee is tasked to facilitate implementation of the provisions of the agreement. In our view, implementation captures the translation or transformation of the provisions of the Paris Agreement into national, regional and/or cooperative action; i.e. into policies, measures, institutions, rules, regulations, laws etc. Implementation is a process which captures elements across the whole Agreement, which set out expectations that certain activities are being carried out by Parties either following from the Agreement itself or from nationally determined contributions as communicated by Parties. The committee is further tasked to promote compliance with the mandatory provisions of the agreement. In the translation of provisions into action, compliance is more narrow in its approach than implementation. Compliance refers to a sub-category of provisions in the Agreement to those that are of mandatory, legally-binding character. Compliance occurs when parties behaviour is in conformity with binding norms ( obligations ) in international agreements or custom. In the context of the Paris Agreement, compliance refers to the fulfilment 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). Compliance in article 15 aims at capturing Parties fulfilment of legally-binding, individual obligations. 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. The Paris Agreement contains very few such individual, legally-binding obligations. Individual obligations are those which can be identified by using the formulation each Party shall as, for example, contained in articles 4.8, 4.9, 4.13, 13.7 and 13.9 (i.e. communication, information, accounting for NDCs, reporting). These obligations are a backbone of the Agreement and central to its functioning. They are also crucial to the successive up-scaling of efforts towards the level of ambition necessary to reaching the long-term temperature goals. Facilitation of implementation and promotion of compliance may also raise general legal questions which could be addressed by the committee through advisory statements, if so requested by a Party. 2. STRUCTURE AND COMPOSITION The mechanism established in article 15 of the Paris Agreement shall consist of a committee. The composition of the committee is detailed in paragraph 103 of Decision 1/CP.21. However, the mechanism s structure may be broader than the committee. In our view, article 15.2 of the Agreement is not exhaustive. While the mechanism shall at least consist of a committee; art does not limit the structure of the mechanism to only the committee. There may be other structural elements the mechanism needs to encompass. For example, there might be a need for panels or lists of experts upon which the committee can draw its expertise in carrying out its functions. 3. SCOPE AND FUNCTIONS OF THE COMMITTEE S WORK The committee s competence is comprehensive by capturing implementation of the provisions across the 2

3 whole Agreement, including compliance where legally-binding individual obligations exist. Individually mandatory provisions constitute a sub-category of this full range of provisions. The committee could also be tasked to issue advisory statements on general questions of implementation or compliance. It is important to recall that the nature of the work of the committee is limited to being facilitative and promoting, as well as non-adversarial and non-punitive. Any kind of sanctions or enforcement actions are therefore outside the scope of the committee s mandate. Rather, the facilitative nature of the committee s work implies that it should attempt to provide help to Parties that face challenges with implementing the provisions of the agreement or in the achievement of the objectives of their respective NDCs, with adaptation communications or in their activities for support. To promote compliance, the committee is tasked to seek to advance or encourage Parties to act in conformity with their obligations. The aim should be to prevent non-compliance and, where this is not possible, to work with the Party concerned in addressing compliance difficulties that the Party might face. Importantly, in our view, the committee s work should be considered a possibility for Parties to help identify the difficulties they might face in implementation and/or compliance and to address them. Moreover, the committee in its work shall pay attention to different national capabilities and circumstances. This means that in the committee s operational modalities and procedures account should be taken of these differences. This can be done in various ways. The most important, however, would be the identification of specific 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 specific, individually suitable measures and assistance in order to address those causes. Such assistance could take the form of technical or capacity-building initiatives. It could also be assisting in bringing Parties together in bilateral or multilateral settings that promote implementation. 4. GENERAL PROCESS ASPECTS 4.1 FACILITATION OF IMPLEMENTATION In facilitating implementation, the committee could function as a voluntary forum for parties to turn to in order to discuss and address issues and challenges with respect to the implementation of the provisions of the Agreement. It could provide a necessary and suitable procedure for a Party, and possibly others, to alert the committee to challenges it is facing in implementing the provisions of the Agreement and/or its NDC. This could pertain to difficulties, for example, with respect to fulfilling the reporting requirements (MPGs) under article 13 or to accounting guidance for NDCs in accordance article 4.13, with pursuing appropriate and effective domestic measures in order to achieve the objective of its NDC in accordance with article 4.2. or with adaptation communication, engaging in adaptation planning and implementation processes (article 7.9) or with challenges in mobilising climate finance (article 9.3) The Party concerned might be facing technical, expertise or capacity challenges that it could voluntarily seek to address through this procedure. This procedure could also link to the outcome report from the expert review team and the facilitative, multilateral consideration of progress under art and 13.12, on the request of Party concerned or with its approval. The committee should consider the submission or request made with respect to implementation 3

4 challenges with a view to determining the matter of concern and to 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 solution. As part of this process, the committee may provide a Party, after consultation and coordination with that Party, non-binding recommendations and/or information with regard to: Strengthening domestic capacities, expertise, institutions or regulations, Possibilities for accessing financial and technical support, including capacity-building and technology transfer, Access to information on best practices, guidance or best available technologies, Joint or cooperative approaches to address the concern. For addressing implementation challenges, the committee could link up to the work of the Capacity-Building Initiative, the Technology Framework, or the Adaptation Committee, depending on the implementation issue at stake. In order not to duplicate efforts under other processes, a Party would need to show that it has exhausted all means of getting support (e.g. technical, capacity). It would not be advisable, however, to link this procedure to financial assistance. The expectation of financial support to be had where progress in implementation is lacking, could potentially provide a negative incentive that would stop or postpone the implementation of the provisions of the Agreement. The advice, non-binding recommendation and/or information should be provided only to the Party concerned. 4.2 PROMOTION OF COMPLIANCE When promoting compliance, the committee should seek clarification and understanding of the causes of non-compliance - what are the challenges that Parties are facing - and work with the Party concerned to rectify the problem. The task of the committee in promoting compliance should be carried out according to clear guidance in order to ensure predictability and legitimacy of the process. This function of the committee could either be: (i) (ii) a continuum of the work on facilitation implementation, in the case where implementation issues pertained to provisions of the agreement that contain individual, legally-binding obligations and where these issues prevail after facilitation, or a new, separate process, in case it was not preceded by an implementation procedure of the respective Party. In its operation to promote compliance, the committee should ask for a clarification from the Party concerned; and 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 take the necessary action. These challenges can be identified here. 4

5 Under both of these approaches, 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 voluntary compliance action plan. A compliance action plan gives the Party or Parties concerned a compass to guide its road back to compliance. Such compliance action plan gives the possibility to explain what the Party intends to do in order to return to compliance with its obligations. The plan should focus on: an analysis of the causes of non-compliance; a description of measures the Party intends to take to restore compliance, a timeline for implementing these measures, and follow-up arrangements for progress reporting to the Committee. After the timeline has expired and in case non-compliance still prevails, the committee could issue a declaration of non-compliance. This procedure should be coupled with public hearings, written statements and possibility for appeal and review of such non-compliance declaration (by the CMA). If, after undertaking the procedures to promote compliance 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 capacity-building; or Issuing a cautionary statement and providing advice regarding future compliance. As mentioned above, the committee s procedure should not be linked to financial assistance. If non-compliance prevails, a further measure that could be considered is a statement by the committee of ineligibility of the Party concerned to participate in the mechanism established under art The Party whose compliance is at stake 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. 4.3 ADVISORY STATEMENT If a Party has requested an advisory statement on a legal question of implementation or compliance, the 5

6 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. TRIGGERS An important aspect of the committee s work is how to initiate ( trigger ) the procedures for facilitation and compliance. 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. Implementation concerns issues that are not of legally binding nature and should therefore be considered with greater discretion and deference. Facilitation of implementation should therefore be voluntary for the Party concerned, while promotion of compliance should not (only) depend on voluntary engagement by the Party concerned. Accordingly, the work of the committee when facilitating implementation could be triggered by written submissions from Parties themselves or from the Secretariat together with the Party concerned. However, after initial procedures, further work should be dependent on the concerned Party s consent. For promoting compliance, both the initiation of procedures and further work should be possible also without [explicit] consent of the concerned Party. In promoting compliance, the committee should in addition to requests from Parties be able to independently start procedures by itself ( self-trigger ) or by a request by the CMA. The following triggers could apply: Specific Submissions or requests by Parties Suggestions by the UNFCCC Secretariat [together with the Party concerned] (with respect to Parties implementation and compliance) Committee itself (self-trigger) (with respect to compliance) Request by CMA (with respect to compliance). 5.1 TRIGGERS FOR FACILITATION OF IMPLEMENTATION AND COMPLIANCE Procedures to facilitate implementation could be initiated by: (i) (ii) (iii) written submissions/requests 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 the Agreement. ( Party-trigger ), 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 ( Party-to-Party trigger with respect to implementation), the secretariat, in consultation with the Party concerned, could make a submission based on the outcome report of the technical expert review according to Articles and ( Secretariat-trigger ). The information provided under Article 13.7 (on the national inventory 6

7 report and progress information) shall undergo a technical expert review of a party s support provided and, as relevant, its implementation and achievement of its NDC. The modalities and procedures of the review still need to be decided. The review process shall include assistance in capacity-building needs for those developing countries that need it in light of their capacities (Article 13.11) and shall identify areas of improvement for parties. While the technical expert review can identify implementation gaps and capacity building needs, it may not be able to provide recommendations or advice to parties of how to overcome those identified challenges. It is here, where the review process under Article 13 could link up to implementation facilitation under Article 15. Parties that, as a result of the technical expert review, have identified capacity building needs (or other areas of improvement) could voluntarily by themselves or upon invitation (by the secretariat) have their needs addressed by recommendations of the committee. The Secretariat could, thus, make a suggestion to this end. 5.2 TRIGGERS FOR PROMOTION OF COMPLIANCE With respect to compliance, additional triggers could be set up: (iv) (v) (vi) (vii) As mentioned above, compliance procedures could be triggered by any party or a group of parties with respect to its/their own compliance as a continuum of the implementation facilitation, Another alternative could be written submissions from a party or a group of parties with respect to the compliance by other parties or group of parties ( Party-to Party trigger compliance ) Compliance procedures could also be triggered by the committee itself ( Committee-trigger ) The committee could initiate the promotion-of-compliance-procedure based on information contained in the various UNFCCC channels that capture the procedural obligations of Parties: the public registry (Article 4.12) as to the successive communication of NDCs and the respective information (Art. 4.8); biennial communications, including the national inventory report and the progress report on implementation in accordance with Article 13, paragraphs 7, 8, 9 and 10; biennial communications of developed country parties according to Articles 9.5 and 9.7; or any other reporting instrument or channel to be decided by the CMA. On the basis of these sources of information, the compliance committee could become active on its own initiative to consider compliance of parties with their respective obligations. Such a trigger could be the most effective in ensuring an impartial and functioning promotion of compliance. Based on the information available through the information channels under the UNFCCC, the committee could assess whether a party has complied with its obligations. As a supplement, the committee might also consider other information channels. Requests for initiation of promotion of compliance could also come from the CMA ( CMAtrigger ). 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 7

8 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. 5.3 ADVISORY STATEMENT Any Party may make a request to the committee to issue an advisory statement on general, legal questions of implementation or compliance. II. ELABORATION OF ELEMENTS THAT COULD BE ADDRESSED THROUGH SUCH MODALITIES AND PROCEDURES As outlined above, elements that could be addressed through modalities and procedures are: 1) Triggers/Initiation of procedures (see above) 2) Process aspects, including: i) Procedures, including Participation of the Party concerned (see above) ii) Measures and Outputs (see above) iii) 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. 3) Reporting to CMA 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. III. SHARING OF VIEWS ON HOW TO TAKE THE WORK FURTHER UNDER THIS AGENDA ITEM IN ORDER TO ENSURE THAT THE APA CAN FULFIL ITS MANDATE IN ACCORDANCE WITH DECISION 1/CP.21, PARAGRAPH 103 8

9 The Government of Norway welcomes the call for submission contained in the APA Conclusions from 14 November There is, however, a concern that the work on this item has not progressed in alignment with other APA agenda items. We see a need for the conceptual development and enhancement of the modalities and procedures for the effective operation of the Article 15 committee and therefore suggest a technical workshop on this item prior to COP23/CMA 1-2 in Bonn, November 2017, where we believe a concrete first textual proposal should be elaborated. As input into the discussions of the workshop, we would recommend the following: 1. A summary of Parties submissions on this item, prepared by the Secretariat, 2. Co-Facilitators reflection note of the discussion of this item at APA 1-3 (Bonn, May 2017), 3. A technical paper on options assessment for linkages with existing institutions, processes and mechanisms under the Paris Agreement, 4. Input from experts on the operation of implementation and compliance mechanisms in other international (environmental) agreements We would further suggest allocating sufficient negotiation time on this item during the upcoming APA sessions. ILLUSTRATION OF PROCEDURES AND TRIGGERS FOR THE COMMITTEE 9