1. Supporting NAMAs through the Green Climate Fund: Governance capacities and challenges Mathias Friman, Prabhat Upadhyaya and Björn-Ola Linnér 16-01-14, Stockholm

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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