ADP Text 11/6/15 Revision: Section K: Facilitating Implementation & Compliance.

As I said here; http://watchitdie.blogspot.co.uk/2015/11/adp-compliance-my-thoughts.html

Because nobody wishes to talk about the section dealing with implementation and compliance was not well developed enough for me to simply chose between a variety of options. Instead I had to set about writing my own version.

Almost two weeks later I have finally completed that task.

Unfortunately it is not quite as polished as I would like. Therefore even more then usual I am happy to hear contributions from the more talented and the more experienced

Section K: Facilitating Implementation & Compliance.

Paragraph 1: "In order to facilitate and promote implementation and to enforce compliance the governing body is to establish a subsidiary body for Implementation and Compliance."

This simply gives the governing body the authority to establish a subsidiary body.

Paragraph 2: "Recalling Article 10 of the convention the primary objective of the body will be to enable all parties to achieve the commitments laid out in their respective INDC's."

I envisage this new subsidiary body to essentially function as the existing Subsidiary Body for Implementation (SBI) only with some added features such as compliance powers to allow it to serve this new agreement. I view the recalling of Article 10 as sufficient for this purpose. 

Paragraph 3: "Nations are obligated to refer themselves to the body and invite it to assist them if they identify any problems with progress towards implementing their commitments. This is to be considered the primary referral mechanism."

What I'm trying to do is make sure that nations only have penalties imposed on them if they have acted in bad faith and refused all the assistance offered to them. However it would place a huge burden on the subsidiary body to monitor every nation's progress in detail. Therefore I think it is important to place an obligation on nations to self-report problems and seek assistance.

Paragraph 4: "Beyond the obligation to self-report the body will also independently monitor the progress in implementation and compliance within the following areas;

(a). The Total Emissions Reduction,

(b). The Scope of the Emissions Reduction,

(c). The Coverage of the Emissions Reduction,

(d). The Percentage of the Total Emissions Covered by the Emissions Reduction,

(e). The Metric Used to Calculate the Emissions Reduction, 

(f). The Methodology Used to Calculate the Emissions Reduction,

(g). Any Other Criteria Laid Out in Technical Annex (X) as Agreed by the Governing Body."

Although the primary obligation is on the party to self-report this allows the body to monitor progress. It goes beyond the delivery of the final target to increase transparency and stop parties using accounting tricks. 

However nations are only being examined on the criteria they chose to include on their INDC. Therefore if a nation states that it is using a different metric from the IPCC standard it cannot be punished for failing to use the IPCC standard. It can though be punished if it deviates from it's stated metric.

Paragraph 5: "The body will also be guided by the results of the peer review process and the periodic review of the Secretariat."

This simply allows the subsidiary body to use the results of those review processes to identify parties that may be in trouble.

Paragraph 6: "In the event that the body identifies cause for concern with the implementation of a nation's INDC it shall write to the party informing them of those concerns."

This simply establishes a procedure for the body to contact parties that may be in need of assistance.

Paragraph 7: "Upon receipt of the aforementioned letter a party may invite the body to assist it."

In order not to undermine national sovereignty nations must be free to refuse assistance from the body.

Paragraph 8: "In the event that a nation is struggling to implement its commitments and upon invitation the body has the power to;

(a). Assign experts from the technical mechanism(s) serving this agreement to advise and assist said nation,

(b). Instruct the financial mechanism(s) serving this agreement to prioritise funding to said nation to allow it to implement it's commitments,

(c). Facilitate private sector support for nations that request it."

This simply establishes that in order to help parties implement their plans the body can assign resources from the technical and financial mechanisms along with the private sector for nations that are happy to work with the private sector.

 

Paragraph 9: "If at the end of a commitment cycle a party has failed to implement their INDC they are to be referred to an adjudication panel."

Although this is where things get unpopular if a party fails to comply with a commitment it has set for itself despite all the assistance made available there needs to be consequences otherwise this agreement becomes completely meaningless.

Paragraph 10: "Upon referral the party concerned is invited to make representations to explain its failure to implement it's INDC."

Obviously before a party is punished it has to be given an opportunity to explain itself.

Paragraph 11: "The adjudication panel is to established according to rules that are guided by the common practices of the United Nations and set by the subsidiary body and approved by the governing body.

It is to be made up of;

·                     Two members of the African group of nations,

·                     Two members of the Asian group of nations,

·                     One member of the Eastern European group of nations,

·                     One member of the Latin American & Caribbean group of nations,

·                     One member of the European states & others group of nations." 

This simply establishes the composition of the adjudication panel in accordance with common UN practice. In the interests of fairness I have given the African group 2 seats because it represents roughly 1/3rd of all nations on earth. I have also given 2 seats to the Asian group because it represents a similar number of nations and is home to roughly 1/3rd of the World's population.

Paragraph 12: "In the interests of fairness no nation may adjudicate on itself. Therefore alternate panel members will also be elected to act in cases of conflict of interest."

This is standard and self-explanatory clause however it still needs stating.

Paragraph 13: "In the event of Force Majeure conditions such as war or extreme natural event the panel may take no further action."

In the event a nation's failure to implement has been brought about by a large-scale event beyond it's control it is unfair to punish them further. This clause prevents that from happening. Although I'm mentioned war and extreme natural events as possible examples I have deliberately left the definition vague. It is best decided on a case-by-case basis guided by precedent.

Paragraph 14: "In making it's decision the panel must consider;

(a). The parties individual circumstances in line with the principle of Common But Differentiated Responsibility (CBDR),

(b). Any failures by third parties that where unforeseeable after due diligence but fall short of Force Majeure,

(c). The parties level of co-operation with the subsidiary body and good faith shown throughout the commitment period."

This establishes that the adjudication panel must consider mitigating factors. 

So for example if a party with a low capability has missed it's target because a third party supplier who was endorsed by the Technology mechanism sold them faulty equipment - I'm thinking Volkswagen - but it has worked tirelessly with the subsidiary body to avoid missing their target they will be punished much less harshly then a nation that has simply ignored all warnings and offers of assistance.

Paragraph 15: "For minor failures of implementation the panel may issue of formal letter of censure to the party detailing the reasons for it's failure in order to assist the party in setting more achievable commitments in future."

Again the objective of this section is to help nations meet their targets rather then punishing them for missing them. So if a nation has simply set itself a too ambitious target it is better to help them build capacity then reduce their capacity by fining them.

Paragraph 16: "No nation may receive more then three letters of censure for failures to implement a Total Emission Reduction or for infractions in the same area."

Obviously though we can't have parties repeating the same mistake over and over again. Therefore based on 8 commitment cycles I think it's fair to limit letters for the most serious failure - missing a target - to two. For less serious failures - such as not keeping a accurate inventory - it is better to allow for three opportunities to build capacity in that specific area. 

Paragraph 17: "In cases of more serious failures of implementation or repeated failures of implementation the panel may impose a financial penalty on the party that is;

(a). Is in accordance with a sliding scale of penalties that has been set by the subsidiary body and approved by the COP,

(b). Is approximate to any financial gain accured by the failure of implementation."

If a failure is of the nature of a party simply refusing to implement it's commitment or repeatedly failing to improve after letters of warning there needs to be the capacity to impose fines. 

I think this wording leaves the body itself a lot of freedom to draw up and alter the level of those fines as appropriate separate from the agreement itself. However those rules will have to be agreed by the COP.

To avoid just complete disregard for commitments I've also included language that links the scale of those fines to the financial gain a party has made by ignoring it's obligations.

Paragraph 18: "Decisions of the panel are to be guided by the precedent set by previous decisions."

This simply establishes the principle of precedent allow the adjudication panel to learn as it grows while preventing political abuse of the system.

Paragraph 19: "Decisions of the panel are to be reached by a majority of five of its seven members"

This prevents one hold out nation stopping one of it's allies being punished by still requires agreement from the representatives of three of the groups

Paragraph 20: "If a party feels that the penalty imposed on it by the panel is unfair they can appeal to the governing body which can refer the matter to the COP. If a two thirds majority of the COP vote to reject a decision by the panel it is overturned and the matter is referred back to the panel."

Obviously there needs to be an appeal process but to prevent abuse it needs to be a strict one. Here a party must first convince the governing body that it has been treated unfairly and then 2/3rds of the COP. The criteria of fairness are laid out in the rest of this section including the principle of precedent.

Paragraph 21: "The proceeds of any financial penalties are to be used to further climate change action through the financial mechanisms of the agreement [ A special fund is hereby created to be used by the subsidiary body to facilitate implementation ]"

This is any area that I would have liked more time on. Rather then having the subsidiary body bossing the other financial mechanisms about and nations stalling implementation to jump the funding queue it would be better if the body had it's own account funded through fines to facilitate implementation. However given the time constraints I've not been able to even begin to think about how that would function.

Even without the bracketed text though I think that this wording allows for such a fund to be set up in the future.

Paragraph 22: "Penalties imposed by the panel remain in force even if a nation withdraws from the agreement."

This removes the incentive for a nation that has been fined to simply withdraw from the agreement.

Paragraph 23: "New institutional arrangements or strengthened institutional arrangements may be needed to serve this agreement."

The standard clause that allows from new arrangements - such as that special fund - to be established if they are required.

18:20 on 27/11/15 (UK date).