1. What is the eligibility of the EU to have a right to vote concurrently with one/more of its member states in a subsidiary body or institution under the UNFCCC, in particular the GCF and the GCF Standing Committee?
2. To what extent do Articles 18 and 22 UNFCCC apply to subsidiary bodies or institutions under the UNFCCC? To what extent does the GCF have the authority to create its own voting rules and how such rules operate?
The Query refers to the eligibility of the EU to have a right to vote concurrently with one/more of its member states in a subsidiary body or institution under the UNFCCC, ‘in particular the GCF and the GCF Standing Committee.’ It is assumed for present purposes that the references to ‘the GCF’ and ‘the GCF Standing Committee’ are actually concerned with the ‘GCF Board’ and the ‘Standing Committee’ established under paragraphs 102-103 and 112 of Decision 1/CP.16.
Relevant provisions of the UNFCCC:
Article 7: Conference of the Parties
1. A Conference of the Parties is hereby established.
2. The Conference of the Parties, as the supreme body of this Convention (…). To this end, it shall:
(h) Seek to mobilize financial resources in accordance with Article 4, paragraphs 3, 4 and 5, and Article 11;
(i) Establish such subsidiary bodies as are deemed necessary for the implementation of the Convention;
(j) Review reports submitted by its subsidiary bodies and provide guidance to them;
(k) Agree upon and adopt, by consensus, rules of procedure and financial rules for itself and for any subsidiary bodies;
3. The Conference of the Parties shall, at its first session, adopt its own rules of procedure as well as those of the subsidiary bodies established by the Convention, which shall include decision-making procedures for matters not already covered by decision- making procedures stipulated in the Convention. Such procedures may include specified majorities required for the adoption of particular decisions.
Article 11: Financial Mechanism
1. A mechanism for the provision of financial resources on a grant or concessional basis, including for the transfer of technology, is hereby defined. It shall function under the guidance of and be accountable to the Conference of the Parties, which shall decide on its policies, programme priorities and eligibility criteria related to this Convention. Its operation shall be entrusted to one or more existing international entities.
2. The financial mechanism shall have an equitable and balanced representation of all Parties within a transparent system of governance.
3. The Conference of the Parties and the entity or entities entrusted with the operation of the financial mechanism shall agree upon arrangements to give effect to the above paragraphs (…).
Article 18: Right to vote
1. Each Party to the Convention shall have one vote, except as provided for in paragraph 2 below.
2. Regional economic integration organizations, in matters within their competence, shall exercise their right to vote with a number of votes equal to the number of their member States that are Parties to the Convention. Such an organization shall not exercise its right to vote if any of its member States exercises its right, and vice versa.
Article 22: Ratification, acceptance, approval or accession
1. The Convention shall be subject to ratification, acceptance, approval or accession by States and by regional economic integration organizations. It shall be open for accession from the day after the date on which the Convention is closed for signature. Instruments of ratification, acceptance, approval or accession shall be deposited with the Depositary.
2. Any regional economic integration organization which becomes a Party to the Convention without any of its member States being a Party shall be bound by all the obligations under the Convention. In the case of such organizations, one or more of whose member States is a Party to the Convention, the organization and its member States shall decide on their respective responsibilities for the performance of their obligations under the Convention. In such cases, the organization and the member States shall not be entitled to exercise rights under the Convention concurrently.
3. In their instruments of ratification, acceptance, approval or accession, regional economic integration organizations shall declare the extent of their competence with respect to the matters governed by the Convention. These organizations shall also inform the Depositary, who shall in turn inform the Parties, of any substantial modification in the extent of their competence.
On the basis of the text of the UNFCCC it appears open to interpretation as to whether Articles 18 and 22 UNFCCC (which state inter alia that ‘Regional economic integration organizations’ (‘REIOs’) shall not exercise their right to vote if any of their member States exercise their right) apply to the functioning of subsidiary bodies established by the Conference of the Parties.
On the one hand, it could be argued that both provisions are phrased in general terms and therefore ought to apply to the implementation of the UNFCCC in all its forms. On the other hand, one might argue that, with the majority of the preceding provisions dealing with the role of the COP, the impact of Articles 18 and 22 UNFCCC is limited to the functioning of the COP, as well as perhaps the functioning of the two subsidiary bodies established directly by the UNFCCC (i.e., the Subsidiary Body for Scientific and Technological Advice (Art. 9 UNFCCC) and the Subsidiary Body for Implementation (Art. 10 UNFCCC)). It is observed in this context that Article 7(2)(h)-(k) authorize the COP to establish such subsidiary bodies as are deemed necessary for the implementation of the Convention AND to ‘agree upon and adopt, by consensus, rules of procedure and financial rules for itself and for any subsidiary bodies’ (possibly in deviation of Article 18 UNFCCC?).
The 1996 draft Rules of Procedure (FCCC/CP/1996/2) – which arguably constitute a subsidiary means of interpretation – nonetheless seem to support the former interpretation. Rule 2(8) defines ‘subsidiary bodies’ as ‘those bodies established by Articles 9 and 10 of the Convention, as well as any body, including committees and working groups, established pursuant to Article 7(2)(i) of the Convention’. Rule 27 asserts that the rules of procedure ‘shall apply mutatis mutandis to the proceedings of the subsidiary bodies’. While Rule 27(3) asserts the possibility of establishing subsidiary bodies that are not open-ended, Rule 41 explicitly restates the content of Article 18 UNFCCC.
In light of the foregoing, it appears that Articles 18 and 22 UNFCCC, read in conjunction with Rules 27 and 41 of the Rules of Procedure, provide ammunition to those who would plead that the EU does not have the right to vote concurrently with one/more of its member states in a subsidiary body established under the UNFCCC.
At the same time, should the EU as a member of a subsidiary body in fact vote concurrently with one or more Member States, without other members objecting to the legality of this conduct, it could be argued that such practice would lead to a shift in the interpretation of the relevant treaty rules (or, put differently, to the creation of a form of ‘coutume institutionnelle’). By way of illustration, it is noted that in spite of the text of Article 27(3) UN Charter, which requires that UN Security Council resolutions are adopted with the concurring votes of all five permanent members, practice has grown to accept that an abstention of one or more permanent members does not bar the adoption of such resolution (this ‘coutume institutionnelle’ was recognized by the International Court of Justice in the past). In short: much will depend on the reactions of the different States Parties to the UNFCCC and/or the different members of the subsidiary body itself.
The Standing Committee and the GCF Board:
As far as the Standing Committee and the GCF Board are concerned, the question first arises as to whether they should be regarded as ‘subsidiary bodies’ in the sense of Article 7(2) UNFCCC/Rule 2 of the provisional rules of procedure.
As for the Standing Committee, the answer seems to be that – even if not explicitly labelled as such – it is in fact a ‘subsidiary body’ (see in the same sense the LRI Advice on ‘Subsidiary bodies and finance’). Ergo, as a matter of principle, it may be argued that its functioning should be subject to Article 18 UNFCCC, ruling out the simultaneous exercise of voting rights by the EU and one or more of its Member States.
In relation to the GCF Board, it may be noted that the GCF is an operating entity of the financial mechanism of the Convention, in the sense of the UNFCCC. Its role and link with the COP appears to be different from that of regular ‘subsidiary bodies’. The GCF is governed by the Governing Instrument for the Green Climate Fund as well as by the arrangements to be concluded with the COP. Against this background, it could be argued that the functioning of the GCF Board is subject to the provisions of Article 11(3) UNFCCC (which refers e.g. to equitable and balanced representation), but not to Articles 18/22 UNFCCC. At the same time, paragraph 4 of Decision 3/CP.17 does note that the GCF ‘will be guided by the principles and provisions of the Convention’. This might again be taken as an argument in support of the application of Article 18 UNFCCC.
In the end, a clear-cut legal answer is hard to provide. Much will depend on the attitude of the COP and on whether or not Members will oppose the concurrent exercise of voting rights by the EU and one or more Member States.