Talking of flexibility to support transparency

An enhanced transparency framework is a central element to implementing the Paris Agreement. Article 13 provides for an enhanced transparency framework, including common modalities, procedures and guidelines (MPG) with built-in flexibility.  Flexibility is to built-in by drawing on collective experience and is to be provided to developing countries that need it in the light of their capacities.

Flexibility seems a simple, clear requirement, right? Well, it seems not. The discussion about flexibility has become surprisingly difficult. This is due, in my view, to two unhelpful narratives being told: One that seeks to pin down flexibility or assume it only comes in two parts. This informal note proposes a more helpful narrative – and that we move on to specifics.

Just briefly, the two narratives which seem to take us backwards. The one narrative seems worried that flexibility is the enemy of robustness. It frames a high standard and requires a justification (or explanation, or some softer word, but basically the same thing) from those who deviate from the gold standard. It turns capacity into criteria. It even suggests that experts might review flexibility. Basically, it does not trust that Parties will exercise flexibility, even once this has been written into section of the MPG. Hence the tellers of this narrative want agency to rest with others than Parties– experts, or in one extremist version, even the CMA. And deep-down, the tellers of this narrative really want one single system, which just happens to be the system they are implementing. That is just not what was agreed in Paris and,  in my view, this narrative is deeply mistaken. If it is imposed, it is likely to drive many to argue the two-part narrative.

Another narrative holds that flexibility means dividing transparency into two parts – one for developed and one for developing countries.  A bifurcated approach is not consistent with “common” MPG. And flexibility simply can mean three, four or many options, not just two. If one reads the Paris Agreement carefully, one finds that the enhanced transparency framework is characterized neither as ‘common’ nor ‘differentiated’. Article 13 is neither a bifurcated system, nor a single common framework. The only adjective qualifying “transparency framework” in Article 13 is “enhanced”. The word ‘common’ is applied to MPG, but not to the framework as a whole.[1]

So what might be a more helpful narrative on flexibility?

A plain reading of Art 13.1 and 13.2 that flexibility is a right and is clearly given in Article 13. Flexibility is “built-in”,  drawing on collective experience. That experience clearly includes elements that are common, as well as others that are differentiated. Flexibility is something that “shall be provided” to developing countries – indeed those that need it in the light of capacities, but without any requirement to justify. In Paris, we all agreed flexibility would be written into a common MPG.  That is the task at hand – and quite a bit of work needs to be done by Katowice.

Rather than argue about flexibility in general, the built-in flexibility narrative suggests focusing on specific provisions within the MPG. A clear and limited set of options for flexibility can be agreed in relation to elements of the MPG. There may be some elements not even requiring any options – national institutional arrangements being a case in point.

It is worth pointing out that within the current system, the developing country guidelines for reporting contain a lot of flexibility themselves, i.e. the flexibility in the system is not confined to having two sets of guidelines, but is built into developing country guidelines.

The Paris Agreement affirms flexibility, linked it to capacity and also the provision of capacity – both in 13.14 and importantly ‘on a continuous basis’ in 13.15. It is the enhanced human and institutional capacity that will make a difference to transparency in developing countries.  Article  13.11 states that the review team “shall” include assistance in identifying capacity-building needs, and 13.12 states that the review team “shall” identify” “areas of improvement”.  The construct here is that Parties identify their capacity-building needs, and the role of TER teams is to assist them in this regard. Once we have written flexibility into the MPG, flexibility should be defined by the Party.

The review teams may identify areas of improvement – again these are most helpfully in support of areas the Party itself has identified would benefit from improvement. We should speak of planned improvements by Parties – and have TER teams assist with those improvements, perhaps during an in-country visit or by identifying means of improvement. What is crucial in this narrative is that the Party is in charge, not the TER team. The Party should identify where it can make planned improvements, where  it needs capacity, and TERs should assist.

A narrative that recognizes different starting points, focuses on planned improvements by the Party, and supporting capacity on a continuous basis to implement such improvements – such a narrative is constructive for negotiations.