3. Chapter 3: Background of Paris Agreement Article
3.5 Legal Analysis of Articles 6.8 and 6.9
3.5.2 A Closer Analysis
Article 6.8 begins by recognising the importance of having “integrated, holistic and balanced non-market approaches” available for Party countries, the purpose of which is specified as assisting the implementation of NDCs, “in the context of sustainable development and poverty eradication, in a coordinated and effective manner”. In accordance with the 1987 World Commission on Environment and Development definition,375 sustainable development is defined by the IPCC as “development that meets the needs of the present
372 Vienna Convention on the Law of Treaties (adopted 22 May 1969, in force 27 January 1980) (1969) UNTS vol. 1155, p. 331.
373 Asian Development Bank 2018, Decoding Article 6 of the Paris Agreement, p. 49.
374 Ibid.
375 World Commission on Environment and Development 1987, para [27].
and future generations”.376 Defining sustainable development may be an important step to ensuring it is implemented under Article 6.8. As demonstrated by the experience with the CDM, without a definition, it becomes more difficult to enforce and monitor.377 The term
“in the context of sustainable development and poverty eradication”, thus indicates that any activities implemented under Article 6.8 should seek to address equal access to resources both on intergenerational level and between individuals and nations and to contribute to the eradication of poverty. Article 6.8 then provides a non-exhaustive list of the actions which could be used to achieve this; “mitigation, adaptation, finance, technology transfer and capacity building, as appropriate”. This demonstrates that the NMA tools which may be employed under Article 6.8 are not limited. The language of Article 6.8 is reminiscent of Bolivia’s submissions on non-market mechanisms, particularly a 2015 submission which likewise called for “holistic and integrated approaches to sustainable development”.378 Of note, the phrase “in harmony with nature” in Bolivia’s submission, has been dropped in Article 6.8. While there is no legal definition of this phrase, the term may have been contentious due to its association with the movement for the Rights of Nature.379
With regard to the aims, Article 6.8(a) differs to the market mechanism provisions in Article 6, as its states an aim to promote both mitigation and adaptation ambition, in comparison to only mitigation.380 Article 6.8(b), however, mirrors other Article 6 provisions with its reference to promoting both private and public involvement in NDC implementation.381 Thus, Article 6.8 is not intended to be aimed only at government authorities. Article 6.8(c) brings a focus on cooperative approaches, namely the aim of NMAs to “enable opportunities for coordination”. The subparagraph further states that this is intended to facilitate coordination across both policy instruments and “relevant institutional arrangements”. This broad wording suggests that NMAs could incorporate institutional coalitions, in addition to more traditional cooperative policies. Reviewing the scant literature on the impact of Article 6.8(c), it is generally agreed that some form of cooperation should be used when developing
376 Roy et al. 2018, p. 450.
377 Wara 2008, p. 1773.
378 Plurinational State of Bolivia 2015, Proposed Changes of the Plurinational State of Bolivia to the non-paper.
379 See i.e. A/RES/74/224.
380 Nishimura 2018, p. 52; Howard 2017, p. 184.
381 Asian Development Bank 2018, Decoding Article 6 of the Paris Agreement, Decoding Article 6 of the Paris Agreement, p. 48.
or linking NMAs under Article 6.8.382 This position has precedent in the negotiations, with a workshop on NMAs within the context of the FVA held in October 2013, concluding that
“activities and initiatives which were entirely domestic in nature should not be eligible for consideration under the work programme on non-market-based approaches”.383 While details remain unclear, it is apparent that Article 6.8 is aimed at mitigation and adaptation, private and public sector engagement and some form of coordination. The use of the term
“and” between the subsections of Article 6.8 indicates that all three should be among the aims of an NMA implemented under this provision, while the use of the term “shall”
indicates that this is an obligation. However, the term “shall aim” suggests that while there must be intention to achieve all three aims, it is not mandated in the outcome. It must be noted that the opposite interpretation is also possible and has been taken by the Swedish Energy Agency who, when reviewing how to operationalise Article 6, noted that
“cooperation under Article 6 must result in emissions reductions beyond the unconditional NDC target”.384 Such contrasting interpretations are likely to be common until further guidance is provided.
The role of Article 6.9 is to establish a framework to promote NMAs. The proposed work programme within the Draft Text adds three additional eligibility criteria to each NMA under the framework, namely that it be “identified by participating Parties”, involves at least two participating Parties and that no associated mitigation outcomes are transferred.385 This offers support to the view that solely domestic approaches would fall outside the ambit of Article 6.8. There is still considerable vagueness around the nature of the cooperation because of the last-minute insertion into the cooperative approaches section, a section which has been described as being developed predominately to facilitate MBMs.386 In addition, most case examples and best practices shared by country Parties during negotiations were domestic approaches and information in relation to collaborative approaches was scarce.387
382 Howard 2017, p. 178; Ari and Sari 2020, p. 244.
383 FCCC/SBSTA/2013/INF.12, p. 6.
384 South Pole 2020, n.p.
385 CMA 2019, p. 4.
386 Howard 2017, p. 179.
387 See e.g, FCCC/TP/2014/10, p. 4.
Mehling notes that the various iterations of the draft have incorporated many different options for approaches under Article 6.8, which are highly diverse and, in some cases, irreconcilable.388 Accordingly, agreeing on focus areas for the work programme has the potential to substantially narrow down the nature of the NMAs which may be implemented under Article 6.8. The draft work programme outlines potential focus areas for the development of NMAs.389 One potential focus is “social ecological resilience”,390 an approach which arguably embodies the definition of integrated and holistic, through its recognition of humanity’s position within the biosphere.391 Another focus is sustainable forest management to achieve mitigation and adaptation outcomes,392 which was mentioned numerous times in Party submissions on NMAs. Also listed are “reduction of emissions by sources and enhancement of removals”, “energy-efficiency schemes” and a broad category of mitigation activities, incorporating transfers of finance and technology.393 In addition, the draft work programme mentions specific mechanisms which may be facilitated under Article 6.8. Article 7(a)(ii) of the draft work programme, for example, mentions the Adaptation Benefit Mechanism.394 Developed by the African Development Bank, it is a results-based NMA to enhance funding to adaptation projects.395 The draft work programme generally aligns with some stakeholder expectations; for example, in 2018 the Asian Development Bank listed inter alia reform of fossil fuel subsidies, renewable energy, ecolabelling and training and education as potential areas of focus.396 The draft work programme also notes an intention to identify existing NMAs which may fall under Article 6.8, presumably to enable coordination and sharing of information and best practices.397
Regarding governance of Articles 6.8 and 6.9, the Draft Text notes that the SBSTA’s focus on the work programme will address the institutional arrangements and implementation
388 Mehling 2018, p. 1.
389 CMA 2019, p. 5.
390 Ibid, p. 2.
391 see e.g., Folke et al. 2016.
392 CMA 2019, p. 2.
393 Ibid.
394 CMA 2019, p. 2; African Development Bank Group 2017, p. 1-2.
395 African Development Bank Group 2017, p. 1-2.
396 Asian Development Bank 2018, Decoding Article 6 of the Paris Agreement, p. 50–51.
397 CMA 2019, p. 5.
schedule and timeline for the framework for NMAs.398 In a previous workshop, there was disagreement on whether to establish a new institutional framework or incorporate into an existing structure.399 The Asian Development Bank suggests that SBSTA could, for example, establish a task force to govern NMAs or add it as an ongoing agenda item in regular meetings. 400 Similarly, it also names the Committee for the Future as a potential forum for the governance and examination processes required.401 Submissions are still being requested in relation to governance matters such as membership and procedural rules, and the requested return date is 30 March 2025, indicating a long time until finalisation and functionality.402
3.6 Elements of Non-Market Approaches