Legal Response International » Interpretation of “decides to establish” and analogous language

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What is the difference between “shall be established” and “is hereby established”?

Summary

In general, the phrase “shall be established” has been used in UN resolutions where the establishment or realisation of an entity or other thing depends upon further actions being undertaken. By contrast, the phrase “is hereby established” refers to a present action and suggests that the Parties to the resolution have the authority to establish an entity or other thing without further actions being undertaken. The phrase “shall be established” is therefore not generally used to mean “is established”.

In practice, even when the phrase “is hereby established” is used, sometimes the entity or other thing being established may not be effective, implemented or operational until certain conditions are met or further actions are undertaken following its “establishment”. In these situations, the phrase “is hereby established” can have the same practical meaning as the phrase “shall be established.”

Advice

The verb at the start of a paragraph of decision text indicates the COP’s intentions in respect of the subject matter of the paragraph. This intention may or may not lead to action by the Parties, a UNFCCC body or a non-UNFCCC body. Whether the decision ‘obligates’ anyone to take any specific action will depend on the actual verb used (i.e. ‘decides’, ‘request’, ‘urges’ etc).

There are no official UN guidelines which set out the precise meanings of lead-in phrases (based on verbs) which are contained in pre-ambulatory and operative paragraphs of UN resolutions or decisions. Under international law, the meaning given to words shall be their ordinary meaning, unless the Parties themselves agree otherwise (Articles 31(1) and (4) of the 1969 Vienna Convention on the Law of Treaties).

1. Meaning of “shall”

1.1 “Shall” is a mandatory term as opposed to a permissive term such as “may”, or a hortatory term such as “should”. Accordingly, “shall” is generally used where a Party seeks legally binding obligations.

1.2 The Oxford English Dictionary defines “shall” to mean, among other things, ‘indicating what is appointed or settled to take place’. Accordingly, by its ordinary meaning, “shall” indicates a future action.

2. “is hereby established” vs. “shall be established”

2.1 The meaning of the phrases “is hereby established” and “shall be established” depends on the context in which these phrases are used.

2.2 Generally, the phrase “is hereby established” has been used in UN resolutions when the Parties to the resolution have the authority to establish an entity (or fund etc), and where the nature of whatever is being established is one which does not require further actions to be undertaken in order for it to be established. For example, in the UNFCCC , the language used to establish the Conference of the Parties (COP) was “is hereby established”. In this case, the creation of the COP was not dependent on other events occurring.

2.3 In contrast, “shall be established” has been used in UN resolutions when the establishment or realisation of an entity or other thing depends upon further actions being undertaken. For example, the Parties to Decision 10/CP.7 decided that an Adaptation Fund “shall be established” . The Decision also provided other actions that needed to occur in order for the Adaptation Fund to be implemented or become operational. For example, Parties needed to contribute to the Fund and an entity to manage the Fund needed to be created.

2.4 From a practical perspective, although “is hereby established” refers to a present action, the thing being established may not be effective, implemented or operational until certain conditions are met or further actions are undertaken following its “establishment”.

2.5 For example, in a resolution adopted by the General Assembly, dated 17 August 1994 section 3 of that resolution provided that a Finance Committee “is hereby established”. Following this statement, the resolution provides, among other things, that the election of members “shall” occur. Similarly, although Article 1 of the Rome Statute of the International Criminal Court (ICC) states that the ICC “is hereby established”, the Statute also outlines other actions which must occur for the ICC to be operational – for example, that “the seat of the Court shall be established at the Hague in the Netherlands” .

2.6 Accordingly, although an entity (or other thing) may be established immediately through the use of the words “is hereby established”, on a practical level the entity (or other thing) may not be realised or implemented until further actions are undertaken.

2.7 Therefore, in our view, in many cases using the phrase “is hereby established” may have the same practical result as using the phrase “shall be established”. This is because the use of “is hereby established” does not necessarily imply that no further actions are required in order to effect the establishment of the entity (or other thing).