1. What is the procedural and legal difference of the word “requests” vis-à-vis “decides” and “urges”?
2. What is the difference between “shall be established” and “is hereby established”? Does the former necessarily imply future action, or can it mean “is established”? Are there specific examples of it being used to mean “is established”?
1. The use of the word “decides” is (along with “agrees”) the strongest of the verbs commonly used in UN negotiations and decisions. “Decides” usually indicates that the COP decision intends to create a mandatory obligation, although the precise legal effect will depend on the content of the rest of the provision as well as the Parties’ conduct and legal expectations.
The use of the words “urges” and “requests” both create discretionary obligations only. However, our view is that “urges” would usually be interpreted as the stronger recommendation than “recommends”. Therefore, of the three verbs, “recommends” would be considered the softest obligation and not a compromise between “decides” and “urges”.
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).
The use of the verb ‘decides’ in the Option 1 of paragraph 9 of the old text, in context, means that the Parties all ‘agree that’ or ‘directs’ that developed country Parties shall provide developing country Parties with new and additional finance.
Leaving aside issues of the strict legal status of COP decisions under international law, ‘decides’ is the strongest form of obligation a COP can create. The precise legal status and legal implications of a decision at any time will depend on its content (see below) and on a Party’s conduct and legal expectations, however use of the verb ‘decides’ is more likely to indicate that the COP decision is attempting to create a mandatory obligation.
On the other hand, ‘urges’ means to impel or insist on some action. It is used where the COP is issuing a strong recommendation on what the Parties (or the addressees of the decision) should do. The key point is that compliance with any provision or recommendation in the decision is discretionary (and not mandatory).
It is often used when encouraging Parties to comply with discretionary obligations (e.g. to increase financial support for developing countries) or when asking Parties to do something they should have already done (e.g. submit national communications).
This is the act of asking for something to be done, especially as a favour or courtesy. As with ‘urges’, acts which are ‘requested’ of Parties are discretionary – there is no strict requirement for the addressees to comply with the request (though there may be political reasons for doing so). It has often (but not exclusively) been used in the past by the COP when asking Parties, UNFCCC bodies and non-UNFCCC bodies to provide information to it for consideration.
Comparison between the three verbs
As between the three verbs (‘requests’, ‘urges’ and ‘decides’), ‘decides’ is the strongest and (along with ‘agrees’) is conceptually different from the other verbs used by the COP. These two require action to be taken while the others (‘requests’, ‘urges’, ‘recommends’, ‘invites’, ‘encourages’ etc) afford the addressee of the decision differing amounts of discretion.
As between ‘requests’ and ‘urges’ we believe that ‘requests’ is softer than ‘urges’ and implies a greater degree of discretion.
Although on one possible interpretation of the ordinary meanings ‘requests’ might be regarded as a mid-way point or compromise between ‘decides’ and ‘urges’, our view is based on the definitions above and the fact that we are aware that the verb ‘urges’ is held by some States to carry particular “emotional weight” and is often considered to be the strongest suggestion that can be made by a UN body. As such, it cannot be said that ‘requests’ is a compromise between ‘decides’ and ‘urges’.
The scale of the emotional and diplomatic meaning of different phrases is referred to as “crescendos” by UN practitioners. For an example of a ‘crescendo’ you may want to refer to the AMUN Rules which illustrate the relative significance of the use of ‘requests’ and ‘urges’, amongst others, in the context of UN negotiations .
Alternative compromise language
We believe that one possible compromise (though there may be others) between:
“Decides that developed country Parties shall provide developing country Parties…”
“Urges developed country Parties…to…”
“Decides that developed country Parties should provide developing country Parties…”.
This formulation strikes a balance between mandatory (‘decides’) and discretionary (‘should’) obligations.
Alternatively, one way in which the use of the verb ‘requests’ could be strengthened on a practical level is to perhaps also request that developed country Parties report in detail on the actions that they take in responding to the request that “developed country Parties [are] to provide developing country Parties with the necessary finance, technology, and capacity-building, consistent with chapter IV of this decision.”
Substantive part of the paragraph
When discussing the implications of the verbs at the beginning of the paragraph, it is important to keep one other issue in mind. While the verb used at the beginning of the sentence is important, the substance of the paragraph itself is equally important. As demonstrated above, two paragraphs, each starting with ‘decides’, can create different types of obligations (mandatory or discretionary) depending on the language used (e.g. shall or should).
Furthermore, when considering whether the new paragraph 9 is truly a compromise between Options 1 and 2 in the old text, due regard must be had to the actual issues the paragraph deals with, not just the verbs used. In addition, paragraph 9 needs to be read in conjunction with other text of the decision (referred to in paragraph 9 i.e. paragraphs 6 and 7 and paragraphs 13, 15 and 16) which may impose a greater obligation on Parties in relation to specific activities.
2. 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.”
Meaning of “shall”
“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.
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.
“is hereby established” vs. “shall be established”
The meaning of the phrases “is hereby established” and “shall be established” depends on the context in which these phrases are used.
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.
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.
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”.
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” .
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.
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).