Supporting NAMAs through the Green Climate
Fund: Governance capacities and challenges
Mathias Friman, Prabhat Upadhyaya and Björn-Ola Linnér
16-01-14, Stockholm
International Environmental Law
• Effectiveness depends on: Formal status, level of legitimacy
– Traditionally hard or soft divide.
• Judged on
– Obligation (bindingness); Precision (unambiguous definition);
Delegation (authorization given to third party)
• Shifting from Binary to a continuum approach
– The formal character of law matters less
– For ex: Kyoto Protocol flexible mechanisms regulated by means of
decisions than the treaty text itself
• Green Climate Fund (GCF):
– Defined through soft law, yet set up for specific tasks
Governance and Capacities
• Governance: The organization of collective action
– Performative capacity (Arts and Goverde 2006): Actual performance
– Indicative capacity: The potential in effectively governing
• “Whether ... we can expect a ‘capacity to govern’”? (La Rovere et al. 2002,
p. 3)
• Governance capacity depends on
– Formal laws
– Mandate granted to the institutions
– But also on soft law
Governance challenges
• No sovereignty with global community; Dispute settlement
procedures weak
• Governance challenge for GCF with relation to NAMAs:
– Need to establish legitimacy
– Manage varied expectations on supporting Nationally Appropriate
Mitigation Actions (NAMAs)
– Can’t be expected to function in order to affect individual state behavior
• Legitimacy among states
– Crucial for internationally defined legal obligations
– Depends on procedurally just manner
Governance Challenges
• GCF Board
– Expected to respect sovereign rights of countries
– Need common criteria for selecting NAMAs
• Obligation and precision functions
– Joint obligation to long term finance exists; precision missing
– NAMA proposals voluntarily in nature
– Need to ensure the precision of obligations
• Legality of Board decisions difficult to enforce,
• GCF’s legitimacy crucial
GCF’s Governance capacities
• Deals with delegation of decision making powers to GCF and
their precision
• GCF defined through a COP decision (Soft Law):
– States obligations’ non-enforceable; High flexibility
• An operating entity to the Convention’s Financial Mechanism
(Art 11, UNFCCC) (Hard Law)
• Legal status of GCF unclear; Free floating
– Legal personalities and privileges granted through GCF’s Governing
Instrument
GCF’s Governance capacities
• GCF meets characteristics of an Independent
Intergovernmental Organization (IGO):
– Founded on International agreement
– Organ with a will of its own
– Established under international law
• Granted full responsibility of funding decisions
– Own independent Secretariat; own budget
– Decision on using COP as arbitrator of last resort pending
• Indicative Governance Capacity, delegation of powers to GCF
and Independence from COP: High
GCF relation to COP
• Functions under guidance of and conforms to COP
– Arrangements can only be changed by consent of both the COP and
the GCF
– Theoretical constraint
• More than just an organ of COP; an example of “inclusive
minilateralism” Eckersley (2012)
– GCF Board has greater say on funding decisions
– GCF Board decisions need not be acceptable to all COP parties: high
flexibility
Conclusions
• GCF granted high governance capacity and independence
• Challenge of designing GCF to balance varied expectations for
NAMA support remains
• A strong shell, but threat of being empty remains