CCLR 3|2022 161

Toward an Intergovernmental Transparency

Arrangement for Fossil Fuel Production
Harro van Asselt and Ellycia Harrould-Kolieb*

To achieve the Paris Agreement’s temperature goals, a managed decline of fossil fuel pro-
duction is necessary. Heeding this message, there are growing calls for an international
governance framework to facilitate cooperation on winding down fossil fuel production.
Promoting transparency is of major importance for international cooperation on wind-
ing down fossil fuel production effectively and equitably. Specifically, to align fossil fuel
production with climate change goals, a better understanding of global trends in current
and planned production is required. However, at present such information is incomplete,
inconsistent, and scattered across a range of transparency initiatives, and much of this
information is reported or collected largely on a voluntary basis. This article therefore
explores how an intergovernmental transparency arrangement could be designed, draw-
ing on examples of intergovernmental transparency arrangements in various areas of in-
ternational law and governance. The article concludes that an intergovernmental trans-
parency arrangement for fossil fuel production should: (1) allow for differentiation, but
subject to minimum requirements; (2) provide capacity-building support for developing
countries; (3) combine technical and peer review; (4) ensure that follow-up activities are
linked to the outcome of the review process; and (5) provide for non-state actor partici-
pation.

I. Introduction house gas emissions, accounting for 86% of carbon

dioxide emissions in the past 10 years.2 To achieve
With the 2015 Paris Agreement, the international the 2°C goal, research suggests that one-third of
community agreed that preventing the most danger- present estimates of oil reserves, half of gas reserves,
ous impacts of climate change requires limiting the and more than 80% of coal reserves need to remain
global average temperature increase to well below untouched.3 Achieving the 1.5°C goal would make
2°C above pre-industrial levels and that efforts should 58% of oil, 59% of gas, and 89% of coal reserves ‘un-
be pursued to keep warming below 1.5°C.1 Achieving extractable’ by 2050.4 While the International Ener-
these goals requires a focus on fossil fuels—coal, oil, gy Agency has stated that to achieve its Net‐Zero
and gas—as the single largest contributor to green- Emissions by 2050 Scenario ‘[t]here is no need for in-

DOI: 10.21552/cclr/2022/3/4 1 Paris Agreement (adopted 12 December 2015, entered into force
4 November 2016) UN Doc FCCC/CP/2015/10/Add.1, Annex, art
* Harro van Asselt, Professor of Climate Law and Policy, University
2(1)(a).
of Eastern Finland Law School; Visiting Researcher, Copernicus
Institute of Sustainable Development, Utrecht University; and 2 Josep G Canadell et al, ‘Global Carbon and other Biogeochemi-
Affiliated Researcher, Stockholm Environment Institute. Ellycia cal Cycles and Feedbacks’ in Valérie Masson-Delmotte et al (eds),
Harrould-Kolieb, Postdoctoral Researcher, University of Eastern Climate Change 2021: The Physical Science Basis. Contribution of
Finland Law School; Visiting Researcher, Copernicus Institute of Working Group I to the Sixth Assessment Report of the Intergov-
Sustainable Development, Utrecht University; Affiliated Researcher, ernmental Panel on Climate Change (Intergovernmental Panel on
Melbourne Climate Futures, University of Melbourne. The authors Climate Change (IPCC) 2021).
are grateful to Rebecca Byrnes, Fergus Green, Romain Weikmans,
3 Christoph McGlade and Paul Ekins, ‘The Geographical Distribu-
and two anonymous reviewers for helpful comments on an earlier
tion of Fossil Fuels Unused when Limiting Global Warming to
draft. For correspondence: <harro.vanasselt@uef.fi>. The authors
2°C’ (2015) 517 Nature 187.
acknowledge financial support from the Third World Network and
the Fossil Fuel Non-Proliferation Treaty Initiative, as well as funding 4 Dan Welsby et al, ‘Unextractable Fossil Fuels in a 1.5 °C World’
by the Academy of Finland (TRANSCLIM, decision 333126). (2021) 597 Nature 230.
 162 CCLR 3|2022

vestment in new fossil fuel supply’,5 governments Non-Proliferation Treaty (FF-NPT).12 The campaign
continue to support and invest in fossil fuel projects. behind the FF-NPT has gained traction, with non-gov-
At the current rate, this will result in more than dou- ernmental organisations (NGOs), subnational au-
ble the production consistent with the 1.5°C goal.6 thorities, and academics supporting the development
Acknowledging the linkages between fossil fuel of a dedicated intergovernmental instrument to ad-
production and climate change, a growing number dress fossil fuel production.13
of countries have begun to take measures to restrict With the mounting interest for the design of in-
fossil fuel supply, including moratoria, extraction ternational institutions to govern fossil fuel supply,
fees, and reforms of fossil fuel producer subsidies.7 it is important to consider how a fossil fuel treaty
While such supply-side measures can offer an impor- could be structured, how it could work, and what
tant complement to traditional, demand-oriented cli- kinds of provisions it could include.14 Responding to
mate policies,8 their effectiveness would be strength- this need, this article explores options for an inter-
ened by international cooperation.9 International in- governmental transparency arrangement that could
stitutions can support national efforts by setting over- either be part of an FF-NPT, or that could operate as
all goals and defining guiding principles, putting in a standalone mechanism while such a treaty is being
place mechanisms to strengthen transparency and developed and negotiated.
accountability, offering capacity-building, financial, In developing an intergovernmental transparency
and technological support, and allowing for learning mechanism for fossil fuel production there is no need
across countries.10 to start from a blank slate. Transparency arrange-
In the run-up to the Glasgow Climate Conference ments feature in a wide range of multilateral regimes,
in November 2021, the first steps towards interna- including on human rights, trade, and nuclear
www.lexxion.eu

tional cooperation were taken in the form of the weapons, and monitoring, reporting, and review are
launch of the Beyond Oil and Gas Alliance, an initia- an important feature of most contemporary multilat-
Powered by TCPDF (www.tcpdf.org)
tive by the governments of Costa Rica and Denmark eral environmental agreements.15 This article there-
that seeks to align oil and gas production with the fore explores what lessons can be learned from these
Paris Agreement temperature goal.11 Intergovern- experiences for the design of an intergovernmental
mental efforts such as these could form a stepping transparency arrangement for fossil fuel production,
stone towards a more comprehensive Fossil Fuel focusing on five crosscutting elements: (1) differen-

5 International Energy Agency (IEA), ‘Net Zero by 2050 A Roadmap 9 Georgia Piggot et al, ‘Curbing Fossil Fuel Supply to Achieve
for the Global Energy Sector’ (IEA 2021) 21 <https://www.iea.org/ Climate Goals’ (2020) 20 Climate Policy 881; Geir B Asheim et
reports/net-zero-by-2050> accessed 24 August 2022. al, ‘The Case for a Supply-Side Climate Treaty’ (2019) 365
Science 325.
6 Stockholm Environment Institute (SEI) et al, ‘The Production Gap
Report 2021’ (2021) 15 <https://productiongap.org/2021report/> 10 Tim Rayner, ‘Keeping It in the Ground? Assessing Global Gover-
accessed 24 August 2022. To be clear, this article focuses on nance for Fossil-Fuel Supply Reduction’ (2021) 8 Earth System
addressing fossil fuel production rather than consumption. The Governance 100061.
latter is directly addressed through many climate change mitiga-
tion policies, from carbon pricing to fuel efficiency standards. The 11 See <https://beyondoilandgasalliance.com/> accessed 24 August
climate impacts of fossil fuel production can be estimated 2022.
through so-called ‘extraction-based accounting’ methods, which
attribute the greenhouse gas emissions released from the burning 12 See Peter Newell and Andrew Simms, ‘Towards a Fossil Fuel Non-
of fossil fuels to the location of extraction. See ibid v; and Steven J Proliferation Treaty’ (2020) 20 Climate Policy 1043; Harro van
Davis, Glen P Peters and Ken Caldeira, ‘The Supply Chain of CO2 Asselt and Peter Newell, ‘Pathways to an International Agreement
Emissions’ (2011) 108 Proceedings of the National Academy of to Leave Fossil Fuels in the Ground’ (2022 fc) Global Environ-
Sciences of the United States of America 18554. mental Politics.
7 Peter Erickson et al, ‘Why Fossil Fuel Producer Subsidies Matter’ 13 See <https://fossilfueltreaty.org/endorsements> accessed 24 Au-
(2020) 578 Nature E1; Michael Lazarus and Harro van Asselt, gust 2022.
‘Fossil Fuel Supply and Climate Policy: Exploring the Road Less
Taken’ (2018) 150 Climatic Change 1; Angela V Carter and 14 See Harro van Asselt, ‘Governing Fossil Fuel Production in the
Janetta McKenzie, ‘Amplifying “Keep It in the Ground” First- Age of Climate Disruption: Towards an International Law of
Movers: Toward a Comparative Framework’ (2020) 33 Society & ‘Leaving It in the Ground’ (2021) 9 Earth System Governance
Natural Resources 1339; Nicolas Gaulin and Philippe Le Billon, 100118.
‘Climate Change and Fossil Fuel Production Cuts: Assessing
15 Kal Raustiala, ‘Reporting and Review Institutions in 10 Multilater-
Global Supply-Side Constraints and Policy Implications’ (2020)
al Environmental Agreements’ (United Nations Environment
20 Climate Policy 888.
Programme 2001); Tom Sparks and Anne Peters, ‘Transparency
8 Fergus Green and Richard Denniss, ‘Cutting with Both Arms of Procedures’ in Lavanya Rajamani and Jacqueline Peel (eds), The
the Scissors: The Economic and Political Case for Restrictive Oxford Handbook of International Environmental Law (2nd edn,
Supply-Side Climate Policies’ (2018) 150 Climatic Change 73. OUP 2021) 904, 906–912.
CCLR 3|2022 163

tiation; (2) capacity-building support; (3) modalities national commitments and therefore induce states to
of review; (4) follow-up; and (5) stakeholder involve- strengthen their performance.16 These claims may be
ment. used to support a variety of governance goals, includ-
The article is structured as follows. Section II iden- ing the technocratisation, democratisation, marketi-
tifies the rationales for an intergovernmental trans- sation, or privatisation of governance architectures.17
parency arrangement on fossil fuel production. Sec- Thus, it is important to recognise that transparency
tions III to VII discuss the five elements of trans- is a tool used to meet larger governance goals, not an
parency arrangements, outlining available options end in and of itself. Moreover, there remain questions
drawing from experiences in other international about the ability of transparency arrangements to en-
regimes. Section VIII discusses the options for either gender accountability or whether they merely act to
hosting a standalone transparency arrangement or reflect existing conflicts around accountability18
embedding it in existing international institutions. Having said that, promoting transparency is of ma-
Section IX concludes with recommendations for the jor importance for international cooperation on fos-
design and implementation of an intergovernmental sil fuel production. Specifically, to align fossil fuel
transparency mechanism for fossil fuel production. production with climate change goals, a better under-
standing of global trends in current and planned pro-
duction is required. In a chapter dedicated to the role
II. Rationales for an Intergovernmental of transparency, the Production Gap Report notes that
Transparency Arrangement for Fossil ‘[t]he public disclosure of verifiable and comparable
Fuel Production information by governments and corporations is key
to addressing the fossil fuel production gap’, as ‘[s]uch
The creation of intergovernmental transparency information can reveal the extent to which govern-
arrangements is underpinned by a variety of claims, ments are supporting fossil fuel production, and pro-
including improving sustainability and state perfor- vide insights into how countries can wind down pro-
mance and the holding of disclosers to account. In duction in light of the Paris Agreement’s goals’.19
particular, it is suggested that information disclosure There are a wide range of international initiatives
by states, and the vetting of this information, can shed that seek to collect and publish data relevant to fos-
light on the performance of states against their inter- sil fuel production. The goals of these initiatives in-
clude reducing price volatility and creating market
stability (e.g., the Joint Organisations Data Initiative,
16 Myele Rouxel, ‘The Paris Rulebook’s Rules on Transparency: A which publishes oil and gas statistics20), removing
Compliance Pull?’ (2020) 14 Carbon & Climate Law Review 18. market distortions and inefficiencies (e.g., efforts to
17 Aarti Gupta and Michael Mason, ‘Disclosing or Obscuring? The
Politics of Transparency in Global Climate Governance’ (2016) 18
collect data on fossil fuel subsidies by organisations
Current Opinion in Environmental Sustainability 82. such as the Organisation for Economic Co-operation
18 Aarti Gupta and Harro van Asselt, ‘Transparency in Multilateral and Development (OECD) and the International En-
Climate Politics: Furthering (or Distracting from) Accountability?’
(2019) 13 Regulation & Governance 18. ergy Agency21), and strengthening the governance of
19 SEI et al (n 6) 55. extractive industries (e.g., the Extractive Industries
20 See <https://www.jodidata.org/> accessed 24 August 2022. Transparency Initiative22). While none of these ini-
21 See Organisation for Economic Co-operation and Development tiatives focus on the link to fossil fuel production and
(OECD), ‘OECD Work on Fossil Fuel Subsidies’ <https://www climate change, recent non-state initiatives have
.oecd.org/fossil-fuels/> accessed 24 August 2022; and IEA, ‘Fossil
Fuel Subsidies Database’ <https://www.iea.org/data-and-statistics/ emerged that seek to disclose relevant information.
data-product/fossil-fuel-subsidies-database> accessed 24 August
2022.
One example is the Task Force for Climate-Related
22 See <https://eiti.org/> accessed 24 August 2022. Financial Disclosures, established by the G20’s Finan-
23 See Task Force on Climate-Related Financial Disclosures, ‘Final cial Stability Board, which has adopted recommen-
Report: Recommendations of the Task Force on Climate-related dations for the disclosure of climate-related financial
Financial Disclosures’ (2017) <https://assets.bbhub.io/company/
sites/60/2020/10/FINAL-2017-TCFD-Report-11052018.pdf> ac- risk by companies, which may include transition
cessed 24 August 2022. The Task Force’s work is part of a broader risks related to continued fossil fuel production.23 An-
trend towards disclosure of physical, liability, and transition risks
by companies and financial institutions. Increasingly, govern- other example is the Energy Policy Tracker, through
ments are considering mandating such disclosure: Paul Griffin
and Amy Myers Jaffe, ‘Challenges for a Climate Risk Disclosure
which five NGOs and a university keep track of pub-
Mandate’ (2021) 7 Nature Energy 2. lic finance for energy production and consumption,
164 CCLR 3|2022

including for fossil fuels.24 Other relevant informa- tion on fossil fuel production remains incomplete,
tion is compiled by the Global Energy Monitor, a not- inconsistent, and scattered across a range of trans-
for-profit organisation that has created numerous parency initiatives, and much of this information is
trackers related to fossil fuel infrastructure (e.g., coal reported or collected largely on a voluntary basis.34
mines, coal-fired power plants, gas pipelines and ter- The types of information that could be made more
minals).25 Together with the Carbon Tracker Initia- transparent include data on the fossil fuels that are
tive, the Global Energy Monitor in 2021 also launched produced in a country in any given year, plans and
the Global Registry for Fossil Fuels, which compiles policies for future production, oil and gas fields and
data from public and private sources on fossil fuel re- coal mines that are under production or in develop-
serves, resources, and production, with the specific ment (including their historical production and pro-
aim of managing the global carbon budget.26 jected future production levels), fossil fuel infrastruc-
In addition to these initiatives focused on fossil fu- ture including pipelines and refineries, and other in-
el production, important strides have been made to formation facilitating an assessment of the align-
strengthen the transparency arrangements of the in- ment of fossil fuel production and climate goals,
ternational climate regime established by the United amounts of government support for the production
Nations Framework Convention on Climate Change of fossil fuels (e.g., fossil fuel production subsidies),
(UNFCCC). Particularly, the Paris Agreement envisages and information related to governments’ plans for a
an important role for transparency with the creation fair and equitable transition away from fossil fuels.35
of an ‘Enhanced Transparency Framework’ (ETF).27
Through the ETF, parties are instructed to regularly
submit information on their greenhouse gas emissions 24 See <https://www.energypolicytracker.org/> accessed 24 August
2022.
and removals, as well as information necessary to track
25 See <https://globalenergymonitor.org/> accessed 24 August 2022.
progress with the implementation and achievement
26 See Global Registry of Fossil Fuels <https://fossilfuelregistry.org/>
of their Nationally Determined Contributions (NDCs). accessed 24 August 2022.
Moreover, parties need to convey relevant information 27 Paris Agreement (n 1) art 13. For a detailed commentary, see
Harro van Asselt and Kati Kulovesi, ‘Article 13: Enhance Trans-
on financial, technology transfer, and capacity-build- parency Framework for Action and Support’ in Geert Van Calster
ing support.28 To this end, they are required to submit and Leonie Reins (eds), The Paris Agreement on Climate Change:
A Commentary (Edward Elgar 2021) 302.
biennial transparency reports, which are subject to a
28 ibid art 13(7), (9) and (10).
review by both technical experts and other parties.29
29 ibid art 13(11)-(12).
Although the ETF applies to all parties, it provides for
30 ibid art 13(2). See further Christina Voigt and Felipe Ferreira,
flexibility for those ‘developing country Parties that ‘Differentiation in the Paris Agreement’ (2016) 6 Climate Law 58;
need it in the light of their capacities’.30 In the modal- and Harald Winkler, Brian Mantlana and Thapelo Letete, ‘Trans-
parency of Action and Support in the Paris Agreement’ (2017) 7
ities, procedures and guidelines on the ETF, which Climate Policy 853.
were adopted at the first Conference of the Parties serv- 31 UNFCCC ‘Decision 18/CMA.1, Modalities, Procedures and
Guidelines for the Transparency Framework for Action and Sup-
ing as Meeting of the Parties to the Paris Agreement port Referred to in Article 13 of the Paris Agreement’ UN Doc
in Katowice, Poland in December 2018, parties elabo- FCCC/PA/CMA/2018/3/Add.2 (19 March 2019) Annex.
rated on what information needs to be reported exact- 32 The examples of indicators listed in Decision 18/CMA.1 include
one that may be of relevance, namely the ‘share of non-fossil
ly.31 To the extent countries include fossil fuel produc- fuel in primary energy consumption’ (ibid Annex, para 66).
tion-related information in their NDCs, the ETF can However, this indicator does not necessarily convey any informa-
tion about fossil fuel production in a country.
provide an opportunity for strengthening transparen- 33 Natalie Jones et al, ‘Database: Fossil Fuel Production Commit-
cy in this area. This is because parties can select their ments under the UNFCCC’ (Stockholm Environment Institute
2022) <https://www.sei.org/publications/ndcs-lt-leds-dataset-fossil
own indicators to track progress towards their NDCs, -fuel-plan/> accessed 24 August 2022.
which, in principle, could include fossil fuel produc- 34 SEI et al (n 6) 63.
tion-related indicators (e.g., historical production lev- 35 See further ibid 56–57. A further, more specific call for informa-
els or size of fossil fuel reserves).32 With only few coun- tion disclosure related to fossil fuel finance was made by the
Special Rapporteur on the promotion and protection of human
tries including relevant information related to fossil rights in the context of climate change, Ian Fry, who called on the
fuel production in their NDCs,33 however, this poten- UN General Assembly to `establish an internationally legally
binding fossil fuel financial disclosure mechanism, to require
tial of the ETF remains under-utilised. Governments, businesses and financial institutions to disclose
Notwithstanding the growing number of initia- their investments in the fossil fuel and carbon intensive indus-
tries'. UNGA `Promotion and Protection of Human Rights in the
tives promoting transparency, the available informa- Context of Climate Change' UN Doc A/77/226 (22 July 2022).
CCLR 3|2022 165

An intergovernmental fossil fuel transparency that other countries are also acting to curtail fossil
mechanism offers one means through which such fuel production, and could thus offer a foundation
information can be collected and made public. Such for international commitments on limiting produc-
an arrangement can provide baseline information tion in line with climate goals.38
on fossil fuel production that could be used to deter- Through regular reporting and review, it is hoped
mine the gap between fossil fuel production and cli- that states and other actors, including corporations,
mate goals by assessing the embedded greenhouse can be better held to account for their actions. Trans-
gas emissions of future extraction against the emis- parency can help to identify states that are shirking
sions pathways likely to limit warming to 1.5°C. This their responsibilities or significantly diverging from
information could also be used in climate risk as- their climate commitments. Various measures can
sessments and decision-making about future fossil thus be deployed to help states better align their fos-
fuel production and investment, by both govern- sil fuel production plans with climate goals. These
mental and non-governmental actors.36 Important- can include the sharing of best practices and experi-
ly, global transparency on fossil fuel production ences, reassurance that other states are also acting in
could facilitate a just transition away from fossil fu- good faith, and the socialisation of the idea that fos-
els, both in terms of enabling an assessment of the sil fuel production needs to be drawn down. Enforce-
fair allocation of the remaining fossil fuel budget in ment mechanisms can also be utilised, including
a way that is consistent with the 1.5°C goal, and sup- naming and shaming, various forms of sanctions,
porting national governments to effectively plan for and domestic pressure.
the wind down of fossil fuel production in their ter- Having established the main rationales for an in-
ritories. A transparency mechanism on fossil fuels tergovernmental transparency arrangement for fos-
could also feed into reporting processes under the sil fuel production, the following sections explore
climate regime, including the Paris Agreement’s five crosscutting elements that can be considered im-
five-yearly global stocktake,37 to ensure the ongoing portant for most multilateral transparency arrange-
production of fossil fuels is adequately reflected in ments. For each of these elements, we explain some
evaluating the global trajectory towards meeting the of the key choices to be made in the design of an in-
1.5°C goal. tergovernmental transparency arrangement for fos-
An intergovernmental transparency mechanism sil fuel production, and explain what choices have
could further provide an important vehicle for the been made in the context of other international
sharing of best practices between countries regard- regimes.
ing fossil fuel phase-out policies and the collection
of data in settings where it is difficult for third par-
ties to do so. It would provide a means for enhanc- III. Differentiation
ing governmental buy-in, by providing reassurance
An intergovernmental transparency arrangement
should generally encourage transparency across the
board, with all countries reporting information and,
36 For instance, information could inform governmental decision- where appropriate, undergoing review. Not all coun-
making on new fossil fuel projects. The need for such information tries are in the same position, however. Some
is underscored by a recent consultation in the United Kingdom,
where the Department for Business, Energy and Industrial Strategy countries—particularly in the Global South—may
(BEIS) asked for input on how to design a checkpoint to ensure
the compatibility of fossil fuel licensing with climate change
lack the capacity to report or participate in a review,
goals. See BEIS, ‘Designing a Climate Compatibility Checkpoint or they may face challenges in collecting the relevant
for Future Oil and Gas Licensing in the UK Continental Shelf’
(December 2021) <https://assets.publishing.service.gov.uk/ data (which in some cases may be held by privately
government/uploads/system/uploads/attachment_data/file/ owned companies). Acknowledging the different na-
1042291/oil-gas-licensing-checkpoint.pdf> accessed 24 August
2022. tional circumstances prevailing in countries, many
37 Paris Agreement (n 1) art 14. international agreements provide for differential,
38 Rebecca Byrnes, ‘A Global Registry of Fossil Fuels: White Paper’ more advantageous, treatment for some countries.39
(Fossil Fuel Non-Proliferation Treaty 2020). Here, we identify some of the existing practices, and
39 See generally Lavanya Rajamani, Differential Treatment in Interna-
tional Environmental Law (OUP 2006). In the context of interna-
indicate what this means in terms of options for a
tional climate change law, see Voigt and Ferreira (n 30). fossil fuel transparency arrangement.
166 CCLR 3|2022

1. Voluntary Reporting countries may report in lesser detail for several ele-
ments. However, even in these instances, the report-
For reporting, the most extreme form of differentia- ing requirements still require parties to report basic
tion would be to allow countries to submit reports on information. For instance, while developing coun-
an entirely voluntary basis, taking into account nation- tries may opt not to report information on all green-
al circumstances and priorities. This is the case for the house gases, they still need to report data for ‘at least
Voluntary National Reviews submitted to the High- three gases (CO2, CH4 and N2O) as well as any of the
Level Political Forum on how countries are imple- additional four gases (HFCs, PFCs, SF6 and NF3) that
menting the 2030 Agenda for Sustainable Develop- are included in the Party’s NDC …, or have been pre-
ment and the Sustainable Development Goals. Agen- viously reported’.44 For the reporting of other types
da 2030 encourages—not requires—countries to ‘con- of information where developing countries can avail
duct regular and inclusive reviews of progress at the of flexibilities, they are still ‘encouraged’ to provide
national and sub-national levels, which are country- the information.45
led and country-driven’.40 Even though these reviews Following the example of the international climate
are submitted on a voluntary basis, some level of har- regime, substantive reporting requirements on fos-
monisation has been pursued through the develop- sil fuel production could thus distinguish between
ment of—again, voluntary—reporting guidelines.41 different tiers of reporting guidance, for instance re-
While the voluntary nature of these reports and the lated to ‘must have’ (Tier 1), ‘should have’ (Tier 2),
associated guidelines may grant countries with vary- and ‘nice to have’ (Tier 3) information. Reporting
ing capacities the necessary flexibility, a clear draw- guidance would spell out the minimum information
back is that information can be difficult to compare, subject to mandatory reporting.46 This could include
and that the submission of information is often un- information that is usually readily available in coun-
predictable. For a fossil fuel transparency arrange- tries, such as information on the physical infrastruc-
ment, minimum reporting requirements could help ture for fossil fuel production,47 as well as other in-
address these concerns. formation that is essential for understanding overall
trends in fossil fuel production, for instance informa-
tion on fossil fuel reserves, licenced resources, and
2. Differentiation in Substantive historical production levels.48 In addition, guidance
Reporting Requirements could be provided on types of information that may

For many international agreements, including mul-

tilateral environmental agreements, the main report- 40 UNGA ‘Transforming Our World: The 2030 Agenda for Sustain-
able Development’ UN Doc A/RES/70/1 (21 October 2015) para
ing requirements apply to all parties. Nevertheless, 79.
as experiences within the international climate 41 UN, ‘Voluntary Common Reporting Guidelines for Voluntary
regime show, the substantive reporting requirements National Reviews at the High-level Political Forum on Sustainable
Development (HLPF)’ <https://sustainabledevelopment.un.org/
can be differentiated. For example, acknowledging content/documents/27171SG_Guidelines_2021.final.pdf> ac-
that not all relevant data for the purposes of green- cessed 24 August 2022.

house gas inventory reporting under the United Na- 42 IPCC, ‘2019 Refinement to the 2006 IPCC Guidelines for Nation-
al Greenhouse Gas Inventories’ (IPCC 2019).
tions Framework Convention on Climate Change
43 Paris Agreement (n 1) art 13(1)-(2).
(UNFCCC) is available everywhere, guidelines by the 44 Decision 18/CMA.1 (n 31) para 48.
Intergovernmental Panel on Climate Change distin- 45 This is the case for the reporting of information on quality assur-
guish between different tiers of information, corre- ance/quality control in the context of national inventory reports,
estimates of expected and achieved emission reductions of par-
sponding to increasing levels of methodological com- ties’ actions, policies and measures and projections of green-
plexity.42 Based on data availability, parties can house gas emissions and removals; ibid Annex, paras 34, 35, 85,
92.
choose the appropriate tier for reporting their infor-
46 In relevant reporting guidance, different auxiliary verbs could be
mation. used for Tier 1 (‘shall’), Tier 2 (‘should’), and Tier 3 (‘may’).
The Paris Agreement differentiates between par- 47 Fergus Green and Declan Kuch, ‘Counting Carbon or Counting
ties through a system of ‘built-in flexibility’ for ‘those Coal? Anchoring Climate Governance in Fossil Fuel-based Ac-
countability Frameworks’ (2022 fc) Global Environmental Poli-
developing country Parties that need it in the light of tics.
their capacities’.43 Under this system, developing 48 Byrnes (n 38).
CCLR 3|2022 167

be more difficult to collect for some countries, which tries. For these reasons, it may be appropriate to dif-
could be reported on a voluntary basis. Tier distinc- ferentiate between parties in terms of the frequency
tions could concern either the types of information of reporting and/or of review. Specifically, some
(e.g., information on historical levels of production, countries could be required to report more regularly
production plans and projections, and fossil fuel re- than others (e.g., annually or biannually), or under-
serves) or the level of granularity (e.g., national-level go review more frequently than others.
or basin-level information on fossil fuel production). Examples can again be found in the context of the
Over time, with an improving information base, international climate regime. For instance, under the
countries should move up between tiers, with previ- Paris Agreement (continuing a practice initiated un-
ously reported information providing an upward- der the UNFCCC), Least Developed Countries (LDCs)
shifting baseline. To encourage countries to be as and Small Island Developing States (SIDS) can pro-
transparent as possible further safeguards could be vide relevant information ‘at their discretion’, where-
put in place. For example, the Paris Agreement re- as other countries are required to submit biennial
quires parties that want to make use of the flexibili- transparency reports.50 While some countries may
ties to ‘clearly indicate the provision to which flexi- accordingly be granted leeway in terms of reporting
bility is applied, concisely clarify capacity con- and/or review under a fossil fuel transparency
straints, … and provide self-determined estimated arrangement, it could be agreed that, subject to ca-
time frames for improvements in relation to those pacity-building and financial support (see below), the
capacity constraints’.49 frequency of reporting and review is gradually in-
Arguably, some countries—i.e., countries not pro- creased over time.
ducing fossil fuels at all—could be altogether exempt- In the context of international trade governance,
ed from reporting requirements. However, basic re- the frequency of Trade Policy Reviews under the
porting requirements may still be appropriate, as Trade Policy Review Mechanism of the World Trade
some countries may begin producing fossil fuels af- Organization (WTO) is tied to a country’s share in
ter joining, for instance if they discover new offshore world trade.51 Similarly, the frequency of reviews un-
oil and gas wells. Moreover, even if countries do not der an intergovernmental transparency arrangement
produce fossil fuels themselves, they may still finan- for fossil fuel production could be tied to a country’s
cially support them, again suggesting that minimum share in global fossil fuel production, possibly com-
reporting requirements for all countries would be bined with criteria linked to a country’s income lev-
beneficial. els.

3. Differentiation in Frequency of 4. Differentiation in Modalities of Review

Reporting and Review
Depending on which modalities of review are cho-
Regular reporting and review allow for the continu- sen (see below), it may be possible to apply them in
ous monitoring of progress towards a treaty’s goals, a differentiated fashion. For instance, more resource-
and can help to improve data availability over time. intensive forms of technical reviews—such as in-
However, preparing national reports can be resource- country visits or inspections by review teams—may
intensive, and put an undue burden on some coun- be limited to only certain parties. Under the UNFC-
CC, for example, less resource-intensive ‘centralised’
reviews were chosen for developed countries with
very low emissions levels, such as Cyprus, Liechten-
49 Decision 18/CMA.1 (n 31) Annex, para 6.
stein, and Malta.52 Under the Paris Agreement, de-
50 ibid para 4 and Annex, para 11.
veloping countries can choose to similarly undergo
51 WTO, ‘Trade Policy Reviews: Ensuring Transparency’ <https://
www.wto.org/english/thewto_e/whatis_e/tif_e/agrm11_e.htm> ac- centralised reviews rather than in-country reviews.53
cessed 24 August 2022. To ensure that all countries at least once in a while
52 Yamide Dagnet et al, ‘Designing the Enhanced Transparency undergo a more thorough review, provisions can be
Framework, Part 2: Review under the Paris Agreement’ (World
Resources Institute 2017) 11. included to alternate between less and more resource-
53 Decision 18/CMA.1 (n 31) Annex, para 159. intensive reviews.
168 CCLR 3|2022

Another way to differentiate in terms of the modal- training and support on the use of the online report-
ities would be to provide for group reviews for some ing tools, and the review of draft reports with the
types of countries. For instance, under the WTO’s provision of comments and recommendations.56
Trade Policy Review Mechanism, Botswana, Eswati- Capacity-building support can also focus on the
ni, Lesotho, Namibia, and South Africa are reviewed review process. In the context of human rights, the
as the Southern African Customs Union rather than Universal Periodic Review (UPR) under the United
individually. Likewise, under the Paris Agreement’s Nations (UN) Human Rights Council has established
ETF, LDCs and SIDS can choose to undergo a cen- specific funds to support LDCs and SIDS in partici-
tralised review as a group.54 pating in the (Geneva-based) review: one to allow
An important open question—which goes beyond countries to participate in the review, and another to
the scope of this article—is which countries should facilitate the implementation of recommendations
be granted differential treatment. Differentiation in emanating from the review.57 The funds are depen-
an intergovernmental transparency arrangement dent on contributions on a voluntary basis. While
could be tied to equity principles related to fossil fu- states are the primary contributors, contributions can
el production (e.g., capacity or dependence on fossil also be made by international organisations, private
fuels),55 and/or consist of listing specific groups of organisations, and even individuals.58
countries (e.g., LDCs and SIDS) that would be treat- Capacity-building support can also cover the en-
ed differently. tire process of reporting and review. For instance, the
Capacity-Building Initiative for Transparency, oper-
ated by the Global Environment Facility, funds a
IV. Capacity-building Support range of capacity-building projects to support the re-
porting of information under the Paris Agreement’s
Closely related to the previous element, the lack of ETF.59 By the end of 2021, the initiative supported 74
capacity and/or information availability also points
to the importance of providing technical and finan-
cial support to build capacity to allow countries in 54 ibid Annex, para 157.
the Global South to effectively participate in report- 55 As suggested by Greg Muttitt and Sivan Kartha, ‘Equity, Climate
Justice and Fossil Fuel Extraction: Principles for a Managed Phase
ing and review, and to implement any recommenda- Out’ (2020) 20 Climate Policy 1024. See also Steve Pye et al, ‘An
tions emerging from the transparency arrangement. Equitable Redistribution of Unburnable Carbon’ (2020) 11 Nature
Communications 3968; ‘A Fair Shares Phase Out: A Civil Society
Providing support to overcome capacity challenges Equity Review on an Equitable Global Phase Out of Fossil Fuels’
is a common feature of intergovernmental trans- (November 2021) <https://www.equityreview.org/2021> accessed
24 August 2022.
parency arrangements in international environmen- 56 CBD ‘National Reporting Under the Convention’ UN Doc
tal governance as well as other areas of governance. CBD/SBI/3/11/Add.1 (4 November 2020).
This support could be focused specifically on help- 57 United Nations Human Rights Council (HRC), ‘The Voluntary
Fund for Participation in the Universal Periodic Review’ <https://
ing countries to develop the necessary transparency- www.ohchr.org/EN/HRBodies/UPR/Pages/TrustFundParticipation
related institutional capacity to prepare (better) re- .aspx> accessed 24 August 2022; and HRC, ‘The Voluntary Fund
for Financial and Technical Assistance in the Implementation of
ports. For instance, under the Convention on Biolog- the Universal Periodic Review’ <https://www.ohchr.org/en/hr
ical Diversity (CBD), support is offered for report -bodies/upr/trust-fund-implementation> accessed 24 August
2022. The funds were established pursuant to HRC ‘Resolution
preparation, including funding from the Global En- 6/17, Establishment of Funds for the Universal Periodic Review
vironment Facility, global and regional workshops Mechanism of the Human Rights Council’ UN Doc
A/HRC/RES/6/17 (28 September 2007), and strengthened by HRC
run by the CBD Secretariat and other partners, in- ‘Resolution 16/21, Review of the Work and Functioning of the
Human Rights Council’ UN Doc A/HRC/RES/16/21 (12 April
cluding the United Nations Environment Pro- 2011). The Trust Fund for Participation can also support members
gramme (UNEP) and the United Nations Develop- in preparing national reports.
ment Programme, offering scientific, technical, and 58 However, only in one instance—a contribution by the Organisa-
tion internationale de la Francophonie—has a contribution been
technological advice, support offered to other subre- made by an entity other than a state. United Nations Office of the
gional and national workshops, including those to fa- High Commissioner for Human Rights, ‘Voluntary Fund for
Participation in the Universal Periodic Review’ (July 2021)
cilitate domestic consultation processes and report <https://www.ohchr.org/Documents/HRBodies/UPR/July2021
preparation, the organisation of side-events on report _VoluntaryFundParticipation_UPR.pdf> accessed 24 August
2022.
preparation at major meetings, the development of 59 UNFCCC ‘Decision 1/CP.21, Adoption of the Paris Agreement’
technical support materials and webinars, including UN Doc FCCC/CP/2015/10/Add.1 (29 January 2016) para 84.
CCLR 3|2022 169

projects across 72 countries for the amount of US$ ensure its legitimacy. Under a review process, the in-
120.5 million.60 formation reported by individual countries is exam-
As with the differentiation of reporting and review ined and discussed. This process can take various
requirements, capacity-building efforts could target forms and fulfil different purposes, including assess-
specific (groups of) countries based on equity prin- ing levels of compliance, sharing lessons learnt and
ciples, or generally focus on those countries with the best practices, and identifying areas for further inter-
lowest capacities (e.g., LDCs and SIDS). However, ca- national cooperation or capacity-building. Three
pacity-building efforts should be developed with broad types of review can be distinguished in exist-
care, and ensure a balance between the need to im- ing intergovernmental transparency arrangements:
prove information availability and respecting coun- (1) the verification of information by technical ex-
tries’ national priorities in embarking for a just tran- perts; (2) a political process of peer review among
sition away from fossil fuels.61 governments; and (3) a global-level review in which
In addition to capacity-building support to coun- country-level data are aggregated to understand how
tries in reporting and undergoing review, capacity collective efforts are progressing. Whereas the for-
development may also be needed to facilitate the re- mer two can be characterised as ‘implementation re-
view process itself. This may include developing a view’, the latter may extend to an ‘effectiveness re-
community of (technical) experts—and providing view’.63
them with relevant training—to undertake the re- A review by independent technical experts can of-
views, and providing support for a secretariat to or- fer a detailed check of reported country data along a
ganise a review process. In this regard, the role of the set of objective criteria (e.g., accuracy, completeness,
UNFCCC’s Consultative Group of Experts can be not- consistency) without having to engage in a discus-
ed. This group’s mandate not only covers technical sion on the subjective, political dimension of the re-
assistance to developing countries, but also includes ported information. Such reviews can serve to build
the training of technical experts to participate in the the confidence that the reported information is trust-
review of national reports.62 worthy. Peer reviews can also help build mutual trust,
as well as enhance learning across countries. Such re-
views provide an opportunity for states to ask each
V. Modalities of Review other the more politically oriented questions that ex-
pert reviewers may not be well-positioned or permit-
An intergovernmental transparency arrangement ted to ask. These two forms of review can be deployed
should include a review of reported information to independently or in combination within a given
transparency arrangement focused on individual
parties. A global-level review allows for both a tech-
60 Global Environment Facility, ‘The Capacity-Building Initiative for
nical assessment and understanding in relation to
Transparency (CBIT)’ (2021) <https://www.thegef.org/sites/default/ gaps and future needs, but also the creation and main-
files/2021-10/gef_capacity_building_initiative_transparency_cbit
_2021_10.pdf> accessed 24 August 2022. tenance of political impetus and momentum. For this
61 As Konrad and colleagues have shown in the climate change to be achieved, it is important that country reports
context, capacity-building efforts are not politically neutral, with be prepared in a standardised format, as the data is
such efforts focusing primarily on strengthening greenhouse gas
inventories rather than responding to other (national) priorities. then easier to compare and aggregate.
See Susanne Konrad, Max van Deursen and Aarti Gupta, ‘Capaci-
ty Building for Climate Transparency: Neutral ‘Means of Imple-
mentation’ or Generating Political Effects?’ (2022) 22 Climate
Policy 557. 1. Technical Review
62 UNFCCC ‘Decision 19/CP.19, Work of the Consultative Group of
Experts on National Communications from Parties not Included in
Annex I to the Convention’ UN Doc FCCC/CP/2013/10/Add.2/Rev.1 In the context of other international regimes, techni-
(25 September 2014) Annex, para 2(i). The group will also serve the
Paris Agreement. See Decision 18/CMA.1 (n 31) para 15; and cal reviews are often carried out by bureaucracies,
UNFCCC ‘Decision 11/CP.24, Review of the Terms of Reference of such as the Secretariat of the Convention on Biolog-
the Consultative Group of Experts on National Communications
from Parties not Included in Annex I to the Convention’ UN Doc ical Diversity for the Nagoya Protocol on Access and
FCCC/CP/2018/10/Add.1 (19 March 2019). Benefit-Sharing, or the WTO Secretariat for the Trade
63 For an explanation of these categories, see Daniel Bodansky, The
Art and Craft of International Environmental Law (Harvard Univer-
Policy Review Mechanism. Alternatively, indepen-
sity Press 2010) 242. dent experts can be drawn upon to conduct the re-
170 CCLR 3|2022

view, such as those included in the UNFCCC’s roster itoring Centre, which informs the Secretariat when
of experts. The technical expert review under the reports do not match, or information is missing.
Paris Agreement examines parties’ national green- The Nuclear Non-Proliferation Treaty (Nuclear
house gas inventories, as well as information related NPT) offers a third example of a verification mecha-
to climate impacts and adaptation, and financial, nism, in which the signatories to the treaty tasked
technological, and capacity-building support. Re- the International Atomic Energy Agency with the
viewers are further tasked with ‘consideration of the role of monitoring nuclear facilities and ensuring
Party’s support provided, as relevant, and its imple- weapon programs were not being established.69 Con-
mentation and achievement of its [NDC]’.64 The re- fidence in the agreement is often attributed to this
view is also expected to identify areas in which par- monitoring by the IAEA.70 The IAEA conducts these
ties can improve and any capacity-building needs of inspections and monitoring via on-site inspections,
developing country parties. The information provid- video monitoring and accounting of the in- and out-
ed by parties is to be reviewed for its transparency, bound amounts of nuclear materials to particular fa-
accuracy, completeness, consistency, and comparabil- cilities. The terms of each signatory’s surveillance are
ity. These reviews are to be ‘facilitative, non-intrusive, documented within a Comprehensive Safeguard
non-punitive’, and respectful of national sovereign- Agreement with the IAEA. There is also the option
ty.65 Review teams are expected to avoid making po- of agreeing to an ‘Additional Protocol’, which can be
litical judgements and placing undue burden on par- voluntarily included in a country’s Safeguard Agree-
ties and are not to review the appropriateness of ND- ment and expands the IAEA’s ability to detect unde-
Cs, progress indicators used, the adequacy of domes- clared nuclear materials and activities. This step has
tic actions taken, or support provided. In terms of de- been widely accepted, with 138 Additional Protocols
veloping country parties, experts are also not permit- currently in force and another 14 signed and waiting
ted to review a determination to apply flexibility or to be brought into force.71
levels of capacity to meet NDCs.66 It is stressed that The Paris Agreement, CITES, and Nuclear NPT of-
these reviews be non-political and facilitative. fer three examples of ways in which expert review is
In contrast to the UNFCCC process, the CITES Sec- conducted under varying international regimes. Un-
retariat is largely tasked with the role of the review der the Paris Agreement, experts verify information
and verification of reported information.67 The veri- provided by parties, but are limited in the scope of
fication mechanisms under CITES have evolved over their review. They are tasked with verification of in-
time through a series of mostly soft law resolutions formation and assessment of how countries are track-
and decisions. The Secretariat conducts verification ing in complying with their self-determined goals
missions to assess implementation progress and ver- and are allowed to provide advice on how to better
ify reported information. The Secretariat also con- report on the implementation and achievement of
ducts a review of implementation through the Na-
tional Legislation Project, which involves a review of
implementation reports (previously known as the bi- 64 Paris Agreement (n 1) art 13(12).
ennial reports) on the legislative, regulatory, and ad- 65 Decision 18/CMA.1 (n 31) Annex, para 148.
ministrative measures taken to enforce CITES provi- 66 ibid Annex, para 149.
sions.68 Through this review the Secretariat cate- 67 Convention on International Trade in Endangered Species of Wild
gorises parties by their level of implementation and Fauna and Flora (adopted 3 March 1973, entered into force 1
July 1975) 993 UNTS 243 (CITES) art XII
identifies those that require attention. The Secretari- 68 CITES, ‘National Legislation Project’ <https://cites.org/eng/
at also provides parties with feedback on ways to im- legislation/National_Legislation_Project> accessed 24 August
2022.
prove their implementation. Reviews of the trade in
69 Treaty on the Non-Proliferation of Nuclear Weapons (adopted 1
listed species are conducted under the Review of Sig- July 1968, entered into force 5 March 1970) 729 UNTS 161, art
nificant Trade, in which data from annual reports III.

that are compiled into the CITES trade database are 70 Ruth Greenspan Bell et al, ‘Building International Climate Coop-
eration: Lessons from the Weapons and Trade Regimes for
examined. This allows for the comparison and veri- Achieving International Climate Goals’ (World Resources Institute
fication of reports, including corresponding reports 2012) 76–77.
71 International Atomic Energy Agency, ‘Additional Protocol’
from trade partners. This review is conducted under <https://www.iaea.org/topics/additional-protocol> accessed 24
the auspices of the UNEP-World Conservation Mon- August 2022.
CCLR 3|2022 171

these goals. However, there is no judgement allowed country review. Even when a review is done remotely,
in terms of whether these self-determined goals are it can take up to 83 days.72 These resource
adequate and need to be stronger. This is in contrast implications—for the reviewers, a possible treaty sec-
with the CITES process, in which the Secretariat iden- retariat, and the country under review—need to be con-
tifies breaches, non-compliance and the adequacy of sidered prior to putting it into effect. Nevertheless, the
implementation, all of which can result in suspen- process of technical review can ensure that vital infor-
sion of trade privileges in CITES-listed species. Un- mation is trustworthy, as well as build confidence both
der the Nuclear NPT, a separate, international agency in the system, and compliance by other participants.
is responsible for monitoring and verification, whose
scope has expanded (with country assent) to even in-
clude inspection of undeclared facilities. 2. Peer Review
These processes differ, in part, due to the overall
design of the institutions in which they are embed- Several international review processes involve state-
ded. For example, the ETF works within the Paris to-state interactions, or peer reviews. These process-
Agreement’s governance architecture, under which es often provide opportunities for states to ask each
each country develops its own climate action plan. other questions in a public forum. This has been the
While parties are bound to submit reports, they are case in international regimes as diverse as human
not bound to meet their own NDCs. By contrast, rights (the UPR), trade (the Trade Policy Review
CITES and the Nuclear NPT have articulated clear Mechanism), and climate change (the ‘facilitative
global goals and standards, and the review process is sharing of views’ and ‘multilateral assessment’ un-
verifying party adherence and implementation. der the UNFCCC, and the upcoming ‘facilitative, mul-
Technical review can trigger enforcement procedures tilateral consideration of progress’ under the Paris
under both mechanisms when countries are found Agreement).
to be non-compliant. If a transparency arrangement A facilitative approach to peer review will gener-
is embedded in a fossil fuel treaty (see Section VIII) ally be apolitical and avoid recommendations or re-
that contains concrete fossil fuel phase-out targets quirements for behavioural change. The aim of a fa-
and timetables, it may be more appropriate to follow cilitative process is to develop capacity and build
the CITES and Nuclear NPT approach. If the trans- peer-to-peer learning, and its strength lies in wide ac-
parency arrangement is disconnected from broader ceptance and buy-in and the building of confidence
substantive obligations to wind down fossil fuel pro- and mutual trust. An example of this type of process
duction, however, it may be more appropriate to de- can be found in the peer review process under the
velop an approach informed by the Paris Agreement Paris Agreement, which is designed to be implement-
in which countries report on how they are meeting ed in a facilitative, non-intrusive, non-punitive man-
their own goals. ner. States are instructed to avoid querying the ade-
A drawback of technical review, whether conduct- quacy of state commitments with respect to achiev-
ed by independent experts or the Secretariat, is that it ing global climate goals, to avoid politicising the
can be highly resource-intensive. For instance, by one process.73 While a facilitative process can potential-
estimate, in the context of technical expert review un- ly be transformative in its ability to socialise states
der the UNFCCC for national greenhouse gas invento- to emergent norms and thereby improve state behav-
ries, the average amount of time for carrying out one iour and social accountability, it also runs the risk of
party’s review is 153 working days if it involves an in- becoming a ritualistic behaviour that avoids true an-
swerability.74 In addition, such processes risk dele-
gating the important task of holding states to account
72 Tinus Pulles, ‘Did the UNFCCC Review Process Improve the to non-state actors. The design should ensure ac-
National GHG Inventory Submissions?’ (GHG Management countability is embedded within the process, possi-
Institute, 28 October 2016) <https://ghginstitute.org/2016/10/28/
did-the-unfccc-review-process-improve-the-national-ghg bly through the formal inclusion of civil society ac-
-inventory-submissions/> accessed 24 August 2022. tors within the process (see Section VII).
73 Decision 18/CMA.1 (n 31) Annex, para 149. The goal-oriented approach to peer review is more
74 Aarti Gupta et al, ‘Performing Accountability: Face-to-Face
Account giving in Multilateral Climate Transparency Processes’
overtly focused on holding states accountable and en-
(2021) 21 Climate Policy 616. suring short-term behaviour change than the facilita-
172 CCLR 3|2022

tive approach. Moreover, while the facilitative ap- such norms without resorting to coercion, which is
proach can be very effective in helping states improve important for securing the widest possible participa-
their behaviour, this is only true when there is polit- tion in a transparency arrangement. Peer review can
ical will to do so.75 If the desire to change is lacking, also facilitate learning between countries when best
a more goal-oriented follow-up approach is likely to practices, experiences, and challenges are shared.82
be more effective, through for example the applica- Such a review process may be useful in the context
tion of political pressure. The UPR under the Human of fossil fuel production even in the absence of a bind-
Rights Council employs this type of approach, allow- ing fossil fuel treaty, as it could help build support for
ing questions, comments, and recommendations a global norm to wind down fossil fuel production.
from any UN member state and even civil society. The In the context of the G20’s 2009 non-binding com-
state under review has an opportunity to respond, mitment to phase out fossil fuel subsidies,83 several
choosing to either accept or note recommendations, G20 countries—starting with the United States and
which are then included in the final report of the re- China, later followed by other G20 members—have
view.76 While such question-and-answer sessions risk undergone voluntary peer reviews of each other’s
becoming a mere formality,77 or may become overt- subsidies and intended reforms in pairs. The peer re-
ly political, it has been argued that it is precisely be- view panels are commonly chaired by the OECD and
cause of this politicisation that states are likely to ac- involve officials from other G20 countries as well as
cept some of the recommendations proffered by oth- other experts. Following a ‘self-review’ by the G20
er states and it therefore plays a powerful role in member under review, the panels discuss subsidies
changing state behaviour.78 It is the mobilisation of and reform options with the member, and in their
constructive criticism, account-holding, and encour- peer review report offer concrete suggestions for
agement from peers that has been described as hold- which subsidies should be considered for reform.84
ing transformative potential in this context.79
The UPR is a process under which the human
75 Valentina Carraro, ‘Promoting Compliance with Human Rights:
rights records of Member States are assessed. Coun- The Performance of the United Nations’ Universal Periodic
tries are required to report on the steps they have tak- Review and Treaty Bodies’ (2019) 63 International Studies Quar-
terly 1079.
en to protect human rights, and, in the process, the
76 HRC ‘Modalities and Practices for the Universal Periodic Review
best human rights practices are shared. State reviews Process’ UN Doc 8/PRST/1 (2008).
are conducted by the UPR Working Group, which is 77 See Jan Karlas and Michal Parízek, ‘The Process Performance of
made up of the 47 members of the Human Rights the WTO Trade Policy Review Mechanism: Peer-Reviewing
Reconsidered’ (2019) 10 Global Policy 376; Gupta et al (n 74).
Council and assisted by a ‘troika’, a group of three
78 Rochelle Terman and Erik Voeten, ‘The Relational Politics of
states who serve as rapporteurs. The troikas are se- Shame: Evidence from the Universal Periodic Review’ (2018) 13
The Review of International Organizations 1.
lected by the drawing of lots. The review takes the
79 Ana María Ulloa, Kurt Jax and Sylvia I Karlsson-Vinkhuyzen,
format of an interactive dialogue between the state ‘Enhancing Implementation of the Convention on Biological
under review and UN member state, and any state Diversity: A Novel Peer-Review Mechanism Aims to Promote
Accountability and Mutual Learning’ (2018) 217 Biological
can ask questions, make recommendations, or offer Conservation 371.
comments during this time. Following the discussion, 80 United Nations Human Rights Council, ‘Basic Facts about the
the troika, in conjunction with the state under review, UPR’ <https://www.ohchr.org/en/hr-bodies/upr/basic-facts> ac-
cessed 24 August 2022.
prepares an ‘outcome report’, which gives a summa-
81 Ryan Goodman and Derek Jinks, ‘How to Influence States:
ry of the discussion, including questions, comments Socialization and International Human Rights Law’ (2004) 54
Duke Law Journal 621; Damian Etone, ‘Theoretical Challenges to
and recommendations and the responses provided by Understanding the Potential Impact of the Universal Periodic
the state under review. The outcome report then goes Review Mechanism: Revisiting Theoretical Approaches to State
Human Rights Compliance’ (2019) 18 Journal of Human Rights
through an adoption process, in which the reviewed 36.
state has the opportunity to make comments on the 82 Carraro (n 75).
recommendations and to either accept or note them. 83 ‘G20 Leaders Statement: The Pittsburgh Summit’ (24–25 Septem-
During this process other states can express their ber 2009) para 24 <http://www.g20.utoronto.ca/2009/
2009communique0925.html> accessed 24 August 2022.
opinion on the outcome of the review.80 The UPR
84 OECD and IEA, ‘Update on Recent Progress in Reform of Ineffi-
shows that the peer review process can help build cient Fossil-Fuel Subsidies that Encourage Wasteful Consumption
2021’ (OECD and IEA 2021) <https://www.oecd.org/fossil-fuels/
peer pressure and foster a process of socialisation to publicationsandfurtherreading/OECD-IEA-G20-Fossil-Fuel
prevailing norms.81 This can promote adherence to -Subsidies-Reform-Update-2021.pdf> accessed 24 August 2022.
CCLR 3|2022 173

This pairing practice offers a useful example for peer latter is the High-Level Expert Group on the Net-Ze-
review under a fossil fuel production transparency ro Emissions Commitments of Non-State Entities,
arrangement, given the politically sensitive nature of which was convened by UN Secretary-General An-
fossil fuel production. Encouraging two similar pro- tónio Guterres with a view to developing improved
ducers to undergo review simultaneously could help standards for net-zero pledges.88 If such an option is
remove concerns, and set an example for other pro- pursued, it would be important to clearly define the
ducers to follow, with a view to achieving the broad- terms of reference of the expert group (e.g., to avoid
est possible coverage. any conflict of interest and ensure independence),
and to ensure that the expert group can carry out its
mandate over a longer period of time (rather than de-
3. Global-level Review livering on a short-term mandate).89
The information collected in a global-level fossil
A global-level review takes place under the Stock- fuel production review could also feed into the five-
holm Convention on Persistent Organic Pollutants yearly global stocktake under the Paris Agreement.90
(POPs), in which the effectiveness of the Convention The global stocktake is designed to assess the imple-
at protecting humans and the environment from mentation of the Paris Agreement and evaluate col-
POPs is evaluated.85 To assess the Convention’s effec- lective progress toward achieving the long-term goals
tiveness the review takes into consideration informa- of the treaty.
tion provided in national reports, the global monitor-
ing plan and non-compliance procedures. To identi-
fy changes in the concentrations and the global and VI. Follow-up
regional transport of POPs over time, the global mon-
itoring plan establishes a standardised framework The aim of follow-up is to ensure that the findings
for data collection to ensure that it is comparable. of the review process are acted upon. The types of
A similar global-level review of fossil fuel produc- follow-up will depend on the obligations that parties
tion could regularly assess national reports, and in- have. If there are procedural requirements to report,
corporate the information collected by the Produc- follow-up may come in the form of finding ways for
tion Gap Report86 and the Global Registry of Fossil reporting to become more effective, thorough and ac-
Fuels.87 While such a global-level review could be curate. Alternatively, if substantive obligations exist,
government-led, an alternative model may be to es- follow-up may be in the form of filling gaps in im-
tablish a high-level expert group or commission to plementation. For either type of activity follow-up
lead the review. Such a high-level group could be com- can occur through capacity-building, resource mobil-
missioned or mandated by the UN General Assem- isation, or other forms of implementation support,
bly or the UN Secretary-General. An example of the or through expectations of state behaviour change
resulting from recommendations or enforcement
procedures.
85 Stockholm Convention on Persistent Organic Pollutants (adopted State needs, in terms of capacity-building and op-
22 May 2001, entered into force 17 May 2004) 2256 UNTS 119, portunities for cooperation, can be identified either
art 16.
during or after the review process through open di-
86 SEI et al (n 6).
87 Global Registry of Fossil Fuels (n 26); see also Byrnes (n 38).
alogues between states. This may also involve non-
88 UN, ‘High-Level Expert Group on the Net-Zero Emissions Com-
state actors and expert reviewers. Formalised link-
mitments of Non-State Entities’ <https://www.un.org/en/ ages between the review process and forms of sup-
climatechange/high-level-expert-group> accessed 24 August
2022. port can assist in ensuring that states are provided
89 For comparison, the mandate of the High-Level Expert Group on with the assistance they need to implement the out-
the Net-Zero Emissions Commitments of Non-State Entities is for comes of review. Linking the review process with ca-
12 months. See UN, ‘Appendix 2: Terms of Reference for the
High-Level Expert Group on the Net-Zero Emissions Commitments pacity-building can promote compliance by both of-
of Non-State Entities’ <https://www.un.org/sites/un2.un.org/files/ fering an incentive for better compliance and the re-
expert_group_terms_of_reference.pdf> accessed 24 August 2022.
90 Paris Agreement (n 1) art 14.
moval of barriers to compliance.91 Under CITES, the
91 Raustiala (n 15). See also Ronald B Mitchell, ‘Compliance Theory’
Compliance Assistance Programme has been estab-
in Rajamani and Peel (n 15) 887. lished to provide targeted support to counties with
174 CCLR 3|2022

ongoing compliance issues. These matters may be ronmental concerns. This can include capacity-build-
identified through the reviews of national reports.92 ing, conducting research, documentation, awareness
Similarly, the UPR has a Voluntary Fund for Finan- raising, and holding corporations and governments
cial and Technical Assistance, which is designed to accountable. Their involvement in transparency
assist countries in implementing the recommenda- arrangements can ensure a more rigorous and repre-
tions that come out of their review. sentative process. Non-state actors can also highlight
In cases where non-compliance does not result gaps in information, best practices, and options for
from under-capacity, enforcement procedures may future action.96 Notwithstanding their potential con-
need to be triggered. This may be due to a continued tributions, some existing transparency arrange-
lack of reporting, non-participation in review, or fail- ments allow for only indirect involvement of non-
ure to implement findings of a review process. Un- state actors, while others specify a more formalised
der the UPR, for example, the reviewed state has the role.
responsibility to implement recommendations from The CBD, for instance, expects that stakeholders,
the outcome report and is expected to provide infor- including indigenous peoples, local communities,
mation on how they have done so in the subsequent business, civil society, and NGOs are to be involved
review. Technical assistance and capacity-building in the preparation of national reports. Similarly, the
support may be provided if needed and in cases of UPR provides for participation for ‘other stakehold-
non-cooperation the Human Rights Council has the ers’, including civil society and national human rights
capacity to impose response measures. Similarly, oth- institutions. These actors can submit written infor-
er intergovernmental transparency arrangements in- mation to be considered during the review process,
clude follow up procedures that can feed into com- known as ‘shadow reports’. They can also gain accred-
pliance or enforcement mechanisms, including un- itation to observe the UPR Working Group and can
der the Nuclear NPT, in which findings of non-com- attend and make oral contributions to the Human
pliance by the IAEA can result in the country under Rights Council sessions where the outcomes of state
review being referred to the UN Security Council, reviews are considered. Moreover, all information
which can impose penalties to incentivise a return to generated by the UPR, including which recommen-
compliance.93 Under CITES, parties that are identi- dations were accepted by states after review, can be
fied as failing to report for three consecutive years, accessed easily by civil society. This is one factor
without justification, can have their trading rights which has led to the perception amongst civil soci-
suspended, these rights can also be suspended for ety members that they have greater influence with-
other acts of non-compliance.94 The use of trade sanc- in the UPR than other similar regimes.97
tions as an enforcement mechanism under CITES has CITES is another regime in which NGOs play an
generally met with success. However, the application important role and have done so since its inception.
of these sanctions almost exclusively on developing The International Union for Conservation of Nature
countries has been questioned as being inequitable.95 (IUCN) was involved in the founding of CITES and
A third avenue for linking the review with tangi- the initial actions of the Secretariat. This close rela-
ble outcomes is by providing openness in terms of
the review process and/or the findings of review. This
can allow for non-state stakeholders to engage with
92 ‘CITES Resolution Conf. 14.3, CITES Compliance Procedures’
the process more fully, both through providing assis- (2007) Annex.
tance to states in implementation and through their 93 Statute of the International Atomic Energy Agency (adopted 26
October 1956, entered into force 29 July 1957) 276 UNTS 3, art
role in holding states accountable for their interna- XII(C).
tional commitments. Further examples of this are 94 ‘CITES Resolution Conf 11.17, (Rev. CoP18), National Reports’
provided in the next section. (2000/2007) para 15. See also CITES Compliance Procedures (n
93). These measures are based on CITES (n 67) art XIII(3).
95 Peter H Sand, ‘Enforcing CITES: The Rise and Fall of Trade Sanc-
tions’ (2013) 22 Review of European Community and Internation-
VII. Stakeholder Involvement al Environmental Law 251.
96 Harro van Asselt, ‘The Role of Non-State Actors in Reviewing
Ambition, Implementation, and Compliance under the Paris
Civil society plays an important role in the protec- Agreement’ (2016) 6 Climate Law 91.
tion of the environment and the promotion of envi- 97 Carraro (n 75).
CCLR 3|2022 175

tionship was formalised by a provision in the Con- be combined with other, more centralised methods
vention which allows for non- and intergovernmen- of review.101
tal organisations to assist the Secretariat.98 This close The important role that civil society actors fre-
relationship has evolved over time to include receiv- quently play in monitoring state compliance and their
ing information from NGOs on compliance, as well work in helping to overcome barriers could similarly
as NGOs reviewing and commenting on party pro- be formalised in a fossil fuel transparency arrange-
posals to amend the CITES appendices. The IUCN ment, for example through consultation with expert
and the Trade Records Analysis for Flora and Fauna reviewers, and the submission of comments and shad-
in International Commerce (TRAFFIC) are also di- ow reports. This can also be achieved, although to a
rectly tasked with reviewing the status and trade of lesser extent, by ensuring openness and accessibility
significant species and reviewing and categorising of the process to the general public and non-state ac-
national legislation under the national legislation tors, including making reports and other documents
project. publicly available and webcasting meetings. For this
Under the regularised review process of the Inter- to be most successful, information should be provid-
national Labour Organization (ILO), the Committee ed in systematised and accessible formats so as to be
of Experts on the Application of Conventions and easily understandable and useful to non-state actors
Recommendations has developed a methodology for who may not have full technical capacities to utilise
eliciting information from civil society, which in- the information made available. In the context of fos-
volves posing a series of questions to gather informa- sil fuel production, NGOs and businesses hold impor-
tion from workers’ and employers’ organisations. An- tant information that governments may not have ac-
other formalised role that NGOs play within the ILO cess to. There should therefore be an opportunity to
consists of the triggering of the second form of re- bring such information into the intergovernmental
view, the ad hoc review process, that reviews claims transparency process. This could be achieved through
of whether member states have failed to observe their a formalised relationship with the Global Registry of
obligations.99 Similarly, under the Aarhus Conven- Fossil Fuels.102 The registry is designed to provide
tion on Access to Information, Public Participation transparency over the production of fossil fuels and
in Decision-Making and Access to Justice in Environ- associated emissions, and could provide a means for
mental Matters, members of the public can file com- verifying national reports. Formal integration into an
plaints (‘communications) with the Convention’s intergovernmental transparency arrangement would
Compliance Committee.100 also likely further incentivise governments to engage
These ‘fire alarm’-type procedures can allow NGOs with the registry, ensuring more open flows of infor-
and/or individuals to lodge complaints about party mation and more robust accounting, further feeding
performance. Fire alarm-style mechanisms can be a back to enhanced verification of reports.
comprehensive method of identifying non-compli- Another area for consideration is the involvement
ance as there tends to be a broader group of actors of fossil fuel companies and their regulation. While
with eyes on the data than in a centralised review engaging in constructive dialogue with fossil fuel
process. This process can also have an important le- companies may be an important part of planning and
gitimising and democratising impact by directly em- implementing the transition away from fossil fuels,
powering civil society to play a role in the regime. allowing for their wholescale participation in a trans-
However, given that this method depends upon the parency mechanism risks its hijacking by vested in-
interest and capacity of civil society, it may need to terests and corporate capture, especially with regard
to the release of information relating to untapped re-
serves and markets, as well as their stonewalling ac-
98 CITES (n 67) art XII. tion by other non-state actors or NGOs. While not di-
99 ILO, ‘ILO Complaints Procedure’ <https://www.ilo.org/wcmsp5/ rectly transparency-related, the World Health Orga-
groups/public/---ed_norm/---normes/documents/image/wcms nization (WHO) Framework Convention on Tobacco
_088451.pdf> accessed 24 August 2022.
Control directly recognises the role that the tobacco
100 UN Economic Commission for Europe ‘Decision I/7, Review of
Compliance) UN Doc ECE/MP.PP/2/Add.8 (2 April 2004) para 18. industry has played in subverting the role of govern-
101 Raustiala (n 15). ments and the WHO in implementing tobacco relat-
102 See Global Registry of Fossil Fuels (n 26). ed health policies and that there is ‘a fundamental
176 CCLR 3|2022

and irreconcilable conflict between the tobacco in- from states for a secretariat carrying out a wide range
dustry’s interests and public health policy inter- of functions rather than a secretariat only concerned
ests’.103 Given the similar role that fossil fuel compa- with managing a reporting and review process).107
nies have played in undermining the science of cli- Having said that, even if an intergovernmental
mate change,104 it is worth considering whether a transparency arrangement is first developed as a
similar stipulation to protect government policy standalone initiative, it could provide a basis for the
around winding down fossil fuel production is need- development of a fossil fuel treaty, or be integrated
ed. A framework similar to that of the WHO’s Frame- in the latter over time.108 Indeed, it has been shown
work for Engagement with Non-State Actors 105 could that ‘if key countries can be persuaded to join a
hence be included within an intergovernmental fos- regime—even if it is not yet universal and particular-
sil fuel transparency arrangement, with the develop- ly if that regime has detailed verification provisions,
ment of rules of engagement and an open registry of an effective implementing organization, and stake-
non-state actor participation. A component of this holder buy-in—the negotiation of a formal multina-
registry could be the inclusion of commitments of tional treaty can establish international norms that,
non-state actors, such as fossil fuel companies, and over time, can gain strength and become the only ac-
the disclosure of relevant information. Similar lists ceptable form of behavior’.109 As such, agreement on
of voluntary commitments are collected in reposito- a standalone transparency arrangement could even
ries, such as the UNFCCC’s Global Climate Action foster the development of a fossil fuel treaty.
portal and the Biodiversity Convention’s registry of If the transparency arrangement is embedded in
non-state actor biodiversity commitments. a broader treaty, any reporting and review obligations
would generally be linked to the primary substantive
obligations under such a treaty. For instance, report-
VIII. A Standalone or Embedded ing and review of greenhouse gas emissions under
Transparency Arrangement? the Kyoto Protocol, or on the production and con-
sumption levels of ozone-depleting substances under
An intergovernmental transparency arrangement on
fossil fuel production could in principle be developed
as a standalone initiative. This would mean that the 103 World Health Organization (WHO), ‘Guidelines for Implementa-
obligation to report (and undergo review) is the core tion of Article 5.3 of the WHO Framework Convention on Tobac-
co Control’ (2013) <https://fctc.who.int/publications/m/item/
commitment for states signing up to it.106 Such an guidelines-for-implementation-of-article-5.3> accessed 24 August
approach may have several advantages. First, com- 2022.

pared to requiring states to signing up to substantive 104 Geoffrey Supran and Naomi Oreskes, ‘Assessing ExxonMobil's
Climate Change Communications (1977–2014)’ (2017) 12 Envi-
commitments (e.g., phasing out fossil fuels, provid- ronmental Research Letters 084019; Christophe Bonneuil, Pierre-
Louis Choquet and Benjamin Franta, ‘Early Warnings and Emerg-
ing financing for a just transition away from fossil ing Accountability: Total’s Responses to Global Warming,
fuels), the procedural obligation to furnish informa- 1971–2021’ (2021) 71 Global Environmental Change 102386.
tion and have that information reviewed entails few- 105 WHO, ‘Framework of Engagement with Non-State Actors’
WHA69.10 (28 May 2016) Annex I <https://apps.who.int/gb/
er compliance costs, and, as a consequence, may lead ebwha/pdf_files/wha69/a69_r10-en.pdf> accessed 24 August
to wider participation. Second, while a treaty process 2022.

is often driven by national governments, and may 106 Of course, procedural obligations can also be an important part
of a broader treaty. A case in point is the Paris Agreement, whose
leave less space for participation by non-state actors, primary obligation is a procedural obligation for each Party to
‘prepare, communicate and maintain successive nationally
a less formal standalone arrangement could more eas- determined contributions that it intends to achieve’. Paris Agree-
ily draw on the input by such actors (for instance, by ment (n 1) art 4(2).
building on information collected for the Global Reg- 107 An outstanding question pertains to who covers the costs of the
transparency arrangement. International organisations (including,
istry for Fossil Fuels). At the same time, depending for instance, the UNFCCC) are commonly dependent on (volun-
on the types of review included in the arrangement, tary) contributions from their members. This means that any
transparency arrangements would likely depend on contributions
a standalone arrangement may entail significant from its wealthier members. However, it is not inconceivable that
costs (e.g., for a secretariat, expert reviewers, and con- any financial mechanisms under a broader fossil fuel treaty would
be tailored to the problem it seeks to address (e.g., one could
vening intergovernmental meetings), which may be think of funding coming from a tax on fossil fuel exports).
more easily funded under the auspices of a treaty with 108 Newell and Simms (n 12).
a wider scope (e.g., it may be easier to attract funding 109 Greenspan Bell et al (n 71) 79.
CCLR 3|2022 177

the Montreal Protocol, is essential for verifying com- does not require parties to the Paris Agreement to
pliance with the core obligations under these treaties report information on fossil fuel production, al-
(achieving emissions targets, and phasing out ozone- though it may be that parties will choose to report
depleting substances, respectively). Likewise, trans- such information if they include mitigation actions
parency arrangements under a fossil fuel treaty related to fossil fuel production in their future NDCs.
would likely be closely linked to the main obligations The information generated through the intergovern-
taken on by parties to such a treaty (e.g., phasing out mental transparency arrangement could neverthe-
a certain amount of fossil fuel production by a given less find its way into the international climate regime
date, or restricting the export of fossil fuels). in several ways. First, parties to the Paris Agreement
The main substantive obligations as well as the can include the information collected in their NDCs
broader treaty architecture are likely to have impli- or in their long-term low-emissions development
cations for the design of a fossil fuel transparency strategies on a voluntary basis.110 Second, the format
mechanism. For instance, if a fossil fuel treaty is of the biennial transparency reports submitted un-
agreed to with the goal of reducing fossil fuel pro- der the ETF is sufficiently flexible to allow
duction by a certain amount by a given year, a tech- parties—again, on a voluntary basis—to share infor-
nical review process similar to that of the Nuclear mation on fossil fuel production levels and expect-
NPT may be useful, allowing for assessments of pro- ed growth, policies and public finance to support fos-
duction amounts per country per year. An agreement sil fuel production, as well as plans to wind down
based on trade restrictions of fossil fuels could ben- and transition away from fossil fuel production, all
efit from a review design similar to that of CITES, in of which could be compiled through a fossil fuel
which trade flows are closely monitored. In addition, transparency arrangement.111 Lastly, as discussed in
offering a voluntary means for broadening the scope Section V, information generated by the intergovern-
of the technical review teams, as with the Addition- mental transparency arrangement could also be syn-
al Protocol under the Nuclear NPT, provides a means thesised as technical input into the five-yearly glob-
for strengthening the review process without alien- al stocktake. That way, information about the
ating states that are perhaps not yet ready to sign up (in)consistency of fossil fuel production plans with
for such a sweeping review. the Paris Agreement could be considered by parties
An advantage of being embedded in a broader to the Paris Agreement—even if some of them do
treaty is that the financial and human resources re- not participate in the fossil fuel transparency
quired for maintaining an effective transparency arrangement
arrangement may be more easily provided for under
an international agreement—which can usually avail
of a dedicated secretariat—particularly if such an IX. Conclusions
agreement also establishes a financial mechanism.
Moreover, by being part of a broader treaty, there With the increasing acknowledgement of the need for
would also be a clear purpose for the transparency a managed decline of fossil fuel production to achieve
arrangement—i.e., the monitoring and verification the Paris Agreement’s long-term goals, it is timely to
of compliance with primary obligations under such consider how international cooperation can help to
a treaty. ensure that the transition is fair and equitable as well
A related question is how an intergovernmental as effective. Promoting transparency of fossil fuel pro-
transparency arrangement would interact with the duction is a necessary—if not sufficient—component
Paris Agreement. As discussed in Section II, the ETF of any form of international cooperation. The design
and implementation of an intergovernmental trans-
parency arrangement on fossil fuel production re-
110 As suggested by Cleo Verkuijl, Natalie Jones and Michael quires careful consideration, and its specifics will like-
Lazarus, ‘Untapped Ambition: Addressing Fossil Fuel Production ly depend on whether it would form part of a broad-
through NDCs and LEDS’ (Stockholm Environment Institute
2019). See also Jones et al (n 33) for an overview of the extent to er treaty, such as the FF-NPT, or whether it would be
which parties already include such information. pursued as a standalone arrangement.
111 See Georgia Piggot, Peter Erickson, Harro van Asselt and Michael
Lazarus, ‘Swimming Upstream: Addressing Fossil Fuel Supply
This article has sought to outline the main design
under the UNFCCC’ (2018) 18 Climate Policy 1189, 1194. options for such an arrangement. In doing so, we have
178 CCLR 3|2022

drawn on various examples of intergovernmental advantages of each type of review. This could involve
transparency arrangements in various areas of glob- an initial period of only a technical review of report-
al governance, including climate change, biodiversi- ed information on fossil fuel production, with a fo-
ty, human rights, trade, and nuclear weapons. Based cus on information gathering, reporting, and learn-
on this analysis, we have identified the following sug- ing. A second phase could include a global-level re-
gestions for the design of an intergovernmental trans- view, with gap analysis and examination of progress
parency arrangement for fossil fuel production. and needs, either led by governments or by a high-
First, a flexible approach to reporting and review level group of experts. The final phase could intro-
under an intergovernmental transparency arrange- duce goal-oriented peer review, in which states would
ment on fossil fuel production may be warranted for have an opportunity to ask questions, provide com-
some countries. However, a fully bottom-up ap- ments and make recommendations for improve-
proach to reporting and review could lead to key in- ment, that would need to be responded to by the state
formation being omitted, which would not only ham- under review.
per insights into progress made in individual coun- Fourth, while the review process itself can lead to
tries, but would also hamper an aggregate under- substantive outcomes, including self-assessment and
standing of trends in fossil fuel production and their peer-to-peer learning, creating other pathways for fol-
alignment with climate change goals, making it more low-up can ensure that a fossil fuel transparency
challenging to compare progress across countries. A arrangement would effectively support governments
bounded approach to differentiation could help rec- and other national stakeholders in the winding down
oncile these challenges, providing for some flexibili- of fossil fuel production. Three pathways for doing
ty subject to minimum requirements. Such mini- so include capacity-building, openness, and enforce-
mum requirements could relate to both the substan- ment. By providing capacity-building as a part of the
tive information to be reported (e.g., fossil fuel pro- follow-up process, states that have a general desire
duction levels, or financial support for fossil fuel pro- to fulfil the recommendations of the review process,
duction) and to the frequency of reporting and/or re- but are unable to due to lack of capacity, will be able
view. Differentiation could thus provide the neces- to do so. In many multilateral processes non-state ac-
sary flexibility to allow a wide range of governments tors play important roles in both helping states to
to participate, and minimum requirements would en- meet their obligations and in holding states account-
sure that a basic level of information is available for able to their commitments. Providing openness in
all countries. In this way, a balance can be struck be- the outcomes of the review process can assist these
tween inducing participation in a standalone inter- actors in being more heavily engaged. Lastly, states
governmental transparency arrangement on fossil that are unwilling to submit reports or participate in
fuels (or a broader fossil fuel treaty) on the one hand, review may need to be incentivised to do so. Design-
and ensuring that stakeholders can avail of relevant ing an enforcement mechanism with linkages to the
information on fossil fuel production on the other. review process can assist in achieving greater levels
Second, capacity-building for reporting is impor- of compliance.
tant given the general need to disclose information This brings us to our final point: as NGOs and busi-
on fossil fuel production. Capacity-building to sup- nesses hold important information that governments
port countries’ participation in a review process can may not have access to, there should be an opportu-
further allow those countries to learn and benefit nity for non-state actors to bring such information
from the information generated in such a review. into a fossil fuel transparency arrangement. Addi-
Lastly, support to implement recommendations can tionally, the important role that civil society actors
alleviate fears that a review process would lead to un- frequently play in monitoring state compliance and
due burdens for lower-income countries. Capacity- their work in helping to overcome barriers could be
building efforts for (low-income) developing coun- formalised through consultation with expert review-
tries should therefore be an integral part of a fossil ers, the submission of comments and shadow re-
fuel transparency arrangement. ports, and, to a lesser extent, by ensuring openness
Third, a staged process involving technical review, and accessibility of the process to the general public
peer review, and global-level review can combine the and non-state actors.