Spain and a fund under COP

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Date produced: 07/12/2010

1. Does the constitution or any other law restrict Spain from contributing to a fund that is under the authority of the COP?

2. If the constitution or another law restricts Spain from contributing, are there any countervailing arguments that the country can contribute?

3. If there are no limitations, please provide examples of Spain contributing to a fund under the authority of an international entity.

Summary:

The EU officials and media are hotly debating whether a few counties (United States, Japan, and Spain) can contribute to a new fund created under the authority of the COP. It is thought that this argument is being employed to stall negotiations.

Advice:

The Spanish Constitution recognizes the capacity of the State to celebrate international treaties, to assume international obligations (including economic obligations) with third parties, and even to transfer to an international organization the execution of some State constitutional competences (for example to the EU institutions).

However, this does not mean that there are no limits. In fact, depending on the type of the compromise to be assumed the prior authorization of the Congress and the Senate would be required or it would be subject to other important requirements (such as the approbation by Organic Law).

So, in general terms, there is no “general constitutional statement” that prohibits the Spanish contribution to a fund subject the authority of the COP. Obviously, depending on the compromises to be assumed, they would be subject to important internal requirements (Congress/Senate authorization, etc).

Spain’s climate change-related aid is delivered (among others) through specific contributions to international organizations such as the Global Environment Facility (GEF) and other multilateral bodies (World Bank, development banks, United Nations System agencies and other similarinternational institutions). Particularly, Spain contributes to the funds under the CNMUCC Secretariat (i.e. the UNFCCC Secretariat), for example, the Participation Fund and the Supplementary Activities Fund.

On the other hand, it is important to note the following:

  • Spain is a member of the EU and, so, by principle, the decisions or measures to be adopted should be consistent with both EU policies or EU competences;
  • Moreover, in the light of the Convention as well as the COP rules, the core question to be analyzed could be, for instance, under which circumstances or under which procedural requirements two or more parties are entitled to undertake certain decisions like creating a fund (through a committee, for example) or to contribute to that fund, etc.

Therefore, besides the internal Constitutional rules, consideration should be given to which of the Convention’s rules are applicable to this issue: whether or not there is a restriction for two or more parties to create a fund, or to contribute to the fund; or what are (as the case may be) the necessary majority requirements for achieving this.