The purpose of this section is to examine the reporting of adaptation finance in the PA. The overall reporting system of the PA is reflected in Article 13, and this comprises of reporting and review.
The report thereafter informs the global stocktake provided in Article 14.
In terms of transparency framework arrangements under the PA, Article 13 provides that, “in order to build mutual trust and confidence and to promote effective implementation, an enhanced transparency framework for action and support, with built-in flexibility which takes into account Parties' different capacities and builds upon collective experience is hereby established”.154 The enhanced transparency framework under Article 13, recognizes differentiation in its transparency framework for developing country Parties, although this differentiation is based on the capacities of those Parties.155 The transparency framework continues to recognize its counterpart under the Convention when it states that, “it shall build on and enhance the transparency arrangements under the Convention, recognizing the special circumstances of the LDCs and SIDS, and be implemented in a facilitative, non-intrusive, non-punitive manner, respectful of national sovereignty, and avoid placing undue burden on Parties”.156 Article 13 states that, “the transparency arrangements under the Convention, including national communications, biennial reports and biennial update reports, international assessment and review and international consultation and analysis, shall form part of the experience drawn upon for the development of the modalities, procedures and guidelines”.157 In terms of transparency of support, Article 13 provides that “the purpose of the framework for transparency of support is to provide clarity on support provided and received by relevant individual Parties in the context of climate change actions under Articles 4, 7, 9, 10 and 11, and,
154PA Art. 13 para. 1.
155Ibid, para. 2.
156Ibid, para. 3.
157Ibid, para. 4.
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to the extent possible, to provide a full overview of aggregate financial support provided, to inform the global stocktake under Article 14”.158 Under Article 13, Parties shall regularly provide
“information necessary to track progress made in implementing and achieving its nationally determined contribution under Article 4”.159 The provision of Article 13 goes on and states that
“each Party should also provide information related to climate change impacts and adaptation under Article 7”.160
The provision in Article 13 specifically request that information must be given by Parties that provide support when it states that, “developed country Parties shall, and other Parties that provide support should, provide information on financial, technology transfer and capacity-building support provided to developing country Parties under Articles 9, 10 and 11”.161 On the other hand, the provision then requires recipient Parties to also make reports, and it states that, “developing country Parties should provide information on financial, technology transfer and capacity-building support needed and received under Articles 9, 10 and 11”.162
Article 13 also provides that “information submitted by each Party under paras. 7 and 9 of this Article shall undergo a technical expert review, in accordance with decision 1/CP.21. For those developing country Parties that need it in the light of their capacities, the review process shall include assistance in identifying capacity-building needs. In addition, each Party shall participate in a facilitative, multilateral consideration of progress with respect to efforts under Article 9, and its respective implementation and achievement of its nationally determined contribution”.163 Article 13 states that “the CMA shall, at its first session, build on experience from the arrangements related to transparency under the Convention, and elaborate on the provisions in this Article, adopt common modalities, procedures and guidelines, as appropriate, for the transparency of action and support”.164
158Ibid, para. 6.
159Ibid, para. 7 (b).
160Ibid, para. 8.
161Ibid, para. 9.
162Ibid, para. 10.
163Ibid, para. 11.
164Ibid, para. 13.
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The thesis finds that the purpose of Article 13, para. 1 is to provide a mechanism that will aid in achieving and implementing the aims of the PA by revealing in details what Parties are doing in terms of action and support. The transparency arrangement under the PA applies to all Parties, this is a departure from earlier agreements. The transparency framework under Article 13 operates in a different way compared to the transparency framework under the Convention which has different reporting obligation for developed and developing countries. Under Article 13, para. 1, the framework is applicable to all Parties in same manner. With regards to developing country Parties as it concerns the provision in para. 1, the provision in para. 2 introduces flexibility for those Parties that “need it in the light of their capacities”. The legal implication is that flexibility is not automatic for developing countries, it will only be available to those that need it. Furthermore, the special circumstances of LDCs and SIDS are noted in Article 13, para. 3 and decision 1/CP.21, para. 90, which states that LDCs and SIDS may satisfy the requirements in Article 13 at their discretion.
Going by the provision contained in Article 13, para. 3, the transparency framework will fashion its transparency arrangements in line with the arrangement under the Convention, and also develop an advanced transparency arrangement, this is also in accordance with decision 1/CP.21, para. 92 (a). The transparency framework pays attention to LDCs and SIDS because of their “special circumstance”, therefore they are allowed to give information at their discretion, this is also reflected in decision 1/CP.21 para. 90. The provision in Article 13, para. 4 continues to recognize the arrangements under the Convention, and directs that those arrangements will form the basis of the MPGs in para. 13. The provision in Article 13, paras. 3 and 4 provides that the new framework should model on the existing UNFCCC transparency framework. Parties will continue to report on their efforts biennially, while the technical expert reviews and multilateral party-to-party reviews will continue to exist under the new framework.
The provision contained in Article 13, para. 6, i.e. the transparency of support provided and received, which shows that not only developed country Parties will report information on support provided, developing country Parties will also report on support received. Here also is another area where the PA has evolved from the previous agreements. While the reports generated under the transparency of support will inform the global stocktake. In terms of frequency of reporting, the
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provision in Article 13, para. 7 only states that Parties shall report on a regular basis. However, decision 1/CP. 21, para. 90, states that the information requested in Article 13, paras. 7, 8, 9 and 10 will be reported biennially.
The provision contained in Article 13, para. 9, is a mandatory obligation for developed country Parties which require them to report information on financial support provided to developing country Parties. Under this provision, other Parties are not legally required to report this information even if they provide financial support to developing country Parties. With regards to developing country Parties, Article 13, para. 10 requires them to report information on support needed and received but this is not legally required, therefore, failure to do so has no legal implication. This is a new obligation for developing country Parties, hence a departure from the previous agreements.
The provision of Article 13, para. 11 of PA, requests that information submitted under para 7 and 9 of this Article shall be subject to a TER. Furthermore, Parties shall participate in a FMCP on support provided. In recognition of the limited resources and institutional arrangements available to developing country Parties with regards to their transparency obligations, Article 13, paras. 14 and 15 introduces assistance through the “Capacity-building Initiative for Transparency”. This is also in line with decision 1/CP.21, paras. 84 and 85. The legal tone in Article 13, paras. 14 and 15 carries a mandatory obligation. Also here the thesis finds a departure from previous agreements.
The thesis highlights connections between Articles 9 and 13. The link in Article 9, para. 5 to Article 13 is not direct, but it does exist. The provision in Article 13, para. 11, which states that parties should “participate in a facilitative, multilateral consideration of progress with respect to efforts under Article 9” shows the link in Article 9, para. 5 to Article 13. Article 9, para. 7 is clearly linked to Article 13. The provision to give ex post information under Article 9, para. 7 makes reference to the transparency framework under Article 13, para. 9. A study of Article 13, para. 9, which requests that “developed country Parties shall provide information on financial support provided”
shows an obligation to provide ex post information, as provided under Article 9, para. 7. The information to be provided by developed country Parties shall be in accordance with guidelines adopted by CMA as stated in Article 13, para. 13. Furthermore, information provided under Article 9, para. 7 is also subject to technical expert review under Article 13, para. 11.
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At COP 24 in 2018, the adopted Paris Rulebook includes detailed MPGs to implement the transparency framework. Transparency becomes an important element in the PA, as it will assist Parties in the implementation of the PA. Furthermore, it also shows light on what Parties are doing as regards obligations and commitments under the PA, thereby promoting trust and confidence amongst Parties.165 The enhanced transparency framework is composed of reporting and review.166 The review is composed of TER and the FMCP, for a better explanation of the review process, some scholars asserts that, “the expert reviewers can identify areas of improvement for the Party under review and examine the consistency of the reported information with multilateral guidelines.
The FMCP focuses on the implementation and achievement of NDCs as well as the obligations related to providing climate finance”.167
During research on COP decisions in terms of transparency of action and support, the thesis finds that the COP decides “to establish a Capacity-building Initiative for Transparency in order to build institutional and technical capacity, both pre- and post-2020; this initiative will support developing country Parties, upon request, in meeting enhanced transparency requirements as defined in Article 13 of the PA in a timely manner”.168 The COP decides that the goal of the Capacity-building Initiative for Transparency is “to strengthen national institutions for transparency-related activities in line with national priorities; to provide relevant tools, training and assistance for meeting the provisions stipulated in Article 13 of the PA; and to assist in the improvement of transparency over time”.169 The CMA decides in accordance with Article 13, paras. 14 and 15 of the PA that developed country Parties shall provide “support to developing country Parties for the implementation of Article 13 of the PA and for the building of transparency-related capacity of developing country Parties on a continuous basis”.170
In accordance with Article 13, para. 2, of the PA, the COP decides that “developing country Parties shall be provided flexibility in the implementation of the provisions of that Article, including in
165van Asselt et al. ECBI 2019, p. 1.
166Ibid, p. 15.
167Ibid, p. 17.
168Decision 1/CP. 21 para. 84.
169Ibid, para. 85.
170Decision 18/CMA.1 Annex para. 9.
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the scope, frequency and level of detail of reporting, and in the scope of review, and that the scope of review could provide for in-country reviews to be optional, while such flexibilities shall be reflected in the development of modalities, procedures and guidelines”.171 Concerning the information to be submitted under Article 13, paras. 7, 8 , 9 and 10, of the PA, the COP decides that “all Parties, except for the LDCs and SIDS, shall submit the information, as appropriate, no less frequently than on a biennial basis, and that the LDCs and SIDS may submit this information at their discretion”.172 In terms of the MPGs provided for in Article 13, para. 13 of the PA, the COP “requests the AWG on the PA to develop recommendations for modalities, procedures and guidelines, and to define the year of their first and subsequent review and update, as appropriate, at regular intervals, for consideration by the COP, at its twenty-fourth session, with a view to forwarding them to the CMA for consideration and adoption at its first session”.173
In terms of transparency, Decision 1/CP.21 paras. 90, 91, 97 and 98 all make reference to replacement of the MRV in the Convention with the transparency system under Article 13. The COP decision in para 98 uses the phrase, “shall build upon and eventually supersede”. The term
“build upon”, indicates that the decision recognize the importance of MRV, and expects the transparency system under Article 13 to learn from it. Furthermore, “eventually supersede”
suggests that the transparency system under Article 13 will later replace MRV. In other words, the transparency system under Article 13 should be an advance model of the MRV.
In terms of matters relating to MPGs for the transparency of action and support referred to in Article 13, of the PA, the COP reaffirms that, “consistently with decision 1/CP.21, para. 98, for Parties to the PA, following the submission of the final biennial reports and biennial update reports, the modalities, procedures and guidelines contained in the annex to decision 18/CMA.1 will supersede the measurement, reporting and verification system established by decision 1/CP.16, paras. 40–47 and 60–64, and decision 2/CP.17, paras. 12–62”.174 The COP further decides that
“for Parties to the PA, the biennial transparency reports, technical expert review and facilitative,
171Ibid, para. 89.
172Ibid, para. 90.
173Ibid, para. 91.
174Decision 1/CP. 24 para. 39.
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multilateral consideration of progress prepared and conducted in accordance with the modalities, procedures and guidelines referred to above shall replace the biennial reports, biennial update reports, international assessment and review, and international consultation and analysis referred to in decision 2/CP.17”.175
The modalities, procedures and guidelines (MPGs) for the transparency framework for action and support referred to in Article 13 of the PA and decision 1/CP 21 para. 91 was adopted by the CMA pursuant to Article 13, para. 13, of the PA.176 The CMA in furtherance to developing the MPGs, requests the SBSTA to develop, for consideration and adoption by the CMA at its third session,
“common reporting tables for the electronic reporting of the information referred to in chapter II, and common tabular formats for the electronic reporting of the information referred to in chapters III, V and VI, of the annex, taking into account the existing common tabular formats and common reporting formats; outlines of the biennial transparency report, national inventory document and technical expert review report, pursuant to the MPGs contained in the annex; a training programme for technical experts participating in the technical expert review”.177
In relation to Article 13, para. 6 of the PA, the purpose of the framework for transparency of support is to “provide clarity on support provided and received by relevant individual Parties to inform the global stocktake under Article 14”.178 Furthermore, the CMA decides on the guiding principles of the MPGs, which it states as follows, “building on and enhancing the transparency arrangements under the Convention, recognizing the special circumstances of the LDCs and SIDS, and implementing the transparency framework in a facilitative, non-intrusive, non-punitive manner, respecting national sovereignty and avoiding placing undue burden on Parties; the importance of facilitating improved reporting and transparency over time; providing flexibility to those developing country Parties that need it in the light of their capacities; promoting transparency, accuracy, completeness, consistency and comparability; avoiding duplication of work and undue burden on Parties and the secretariat; ensuring that Parties maintain at least the
175Ibid, para. 41.
176Decision 18/CMA.1 para. 1.
177Ibid, para. 12.
178Ibid, Annex, para. 2.
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frequency and quality of reporting in accordance with their respective obligations under the Convention; ensuring that double counting is avoided; ensuring environmental integrity”.179 The CMA decides that the MPGs shall have “flexibility for those developing country Parties that need it in the light of their capacities”, which is in accordance with Article 13, para. 2 of the PA.180 The flexibility available to developing county Parties by these MPGs includes “the scope, frequency and level of detail of reporting, and in the scope of the review, as referred to decision 1/CP.21, paragraph 89”.181 The application for this flexibility is to be self-determined by a developing county Party that needs it in light of its capacity, and such Party shall “clearly indicate the provision to which flexibility is applied, concisely clarify capacity constraints, noting that some constraints may be relevant to several provisions, and provide self-determined estimated time frames for improvements in relation to those capacity constraints. When a developing country Party applies flexibility provided for in these MPGs, the technical expert review teams shall not review the Party’s determination to apply such flexibility or whether the Party possesses the capacity to implement that specific provision without flexibility”.182
Under transparency, the contention was whether “a more comprehensive review leading to the publication of a report highlighting areas for improvement and even compliance, and to be discussed by the CMA, or to introduced a rigid distinction between the review of information from developed countries, ‘robust technical review process’ with conclusions on compliance’ and from developing countries, a more diluted review process taking into account the level of support received by the relevant developing country”.183 Disputes were on reporting rules whether all parties should conform to a single rule with flexibility for developing countries that need it on the basis of their capacities; differentiation as in the KP; or with a more defined differentiation between developed and developing countries. Eventually at COP 24, it was agreed that parties will conform to a single set of rules with flexibility for parties that need it, while the MPGs states that the application of flexibility will be self-determined by those countries that need it. Developing
179Ibid, para. 3.
180Ibid, para. 4.
181Ibid, para. 5.
182Ibid, para. 6.
183Vinuales C-EENRG working papers 2015, p. 10.
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countries will give information on which flexibility is applied, identify capacity inability and provide estimated timeframe to deal with such capacity inability. This application of flexibility cannot be reviewed by TER. While LDCs and SIDs can apply the transparency rule at their discretion. MPGs state that flexibility will only apply in areas such as, the scope; frequency and level of detailed reporting; and whether it will be in-country or centralised TER.184
The thesis finds that decision 1/CP.24, para. 39 legally permits the MPGs to supersede reporting of BRs and BURs, it will also supersede IAR and ICA processes for PA Parties. Consequently, the BRs and BURs will be superseded by reporting of the BTR for Parties under the PA. The review process of the BR will be superseded by the TER for Parties under the PA. The facilitative multilateral consideration of progress for Parties under the PA will supersede multilateral assessment and facilitative sharing of views under the Convention for PA Parties.
The CMA in its decision, states that “developed country Parties shall provide information pursuant to Article 13, para. 9, in accordance with the MPGs contained in chapter V. The decision then goes on, and states that other Parties that provide support should provide such information and, in doing so, are encouraged to use the MPGs contained in chapter V”.185 While developing country Parties also have a part to play in the reporting system, the CMA decides that “developing country Parties should provide information on financial, technology transfer and capacity-building support needed and received under Articles 9, 10 and 11 of the PA, in accordance with the MPGs contained in chapter VI.186 However, the CMA decides that “the LDCs and SIDS may submit the information at their discretion”.187
In terms of information on financial support provided and mobilized under Article 9 of the PA, the CMA decides that “developed country Parties shall provide information pursuant to Article 13, para. 9, of the PA in accordance with the MPGs. While other Parties that provide support should provide such information and, in doing so, are encouraged to use the MPGs”.188 In addition, the
184Sharma et al. ECBI 2019 p. 11.
185Decision 18/CMA.1 Annex para. 10 (d).
186Ibid, para. 10 (e).
187Ibid, para. 11.
188Ibid, para. 118.