1. Can the UNFCCC and/or its secretariat be considered an international organisation under public international law?
2. If not, what could the parties to the UNFCCC do to establish the UNFCCC and/or its secretariat as an independent international organisation?
3. What other options (if any) are there to grant the UNFCCC and/or its secretariat independent legal personality under international law?
ADVICE
I. Introduction and Summary of Advice
This note responds to the query concerning whether the UNFCCC and/or its secretariat (the UNFCCC secretariat) constitutes an international organization (IO) under public international law, and if not, how it can acquire independent legal personality thereunder. Part II of the note sets out the Applicable Law, noting that there is no formal structure that an IO must take in order to be recognized under public international law and that it may therefore be more appropriate to focus on the functions of an entity, rather than its form, in determining whether it operates as an IO. Part III concludes that it is ambiguous whether the UNFCCC or its secretariat currently have the status of an IO under international law, and more particularly, that while the UNFCCC secretariat does have a limited power to enter into administrative and contractual agreements, there is no formal recognition of its status. Finally, Part IV explores three different options for the status and legal personality of the secretariat to be clarified, suggesting that option 2: adoption of a COP resolution recognising the UNFCCC secretariat as an IO having legal personality, is preferable.
II. Applicable law
There are various definitions of an “international organization” (IO) under public international law:
1)The 1966 Vienna Convention on the Law of Treaties, in Article 2, contains the broadest definition of an IO as meaning “an intergovernmental organization”.
2) That definition is repeated in the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, which elaborates in its preamble that “international organizations possess the capacity to conclude treaties, which is necessary for the exercise of their functions and the fulfilment of their purposes” and that they are “subjects of international law distinct from States”, i.e., they have independent legal personality.
3) The 2011 ILC Draft Articles on the Responsibility of International Organizations contains a more elaborate definition:
Article 2. Use of terms
(a) For the purposes of the present draft articles:“international organization” means an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities;
As the commentary to the ILC Draft Articles points out, IOs may come in different forms, and while the definition includes common characteristics of IOs, other valid forms may exist. Therefore, it may not be appropriate to emphasise a formal definition of an IO. In particular, the Commentary notes that while most IOs are established by treaties, that is not always the case, and that an IO may also, for instance, be established by “any other instrument governed by international law”, such as “resolutions adopted by an international organization or by a conference of States.”[1]
Some international law commentators have also pointed out that international environmental organizations generally tend to adopt less formal governance structures, while questioning whether the distinction is ultimately of importance since “these regimes are frequently treated as a practical matter as if they had legal personality.”[2]
Ultimately, therefore, in answering the question whether an entity is or is not an IO under international law, it may be more appropriate to focus on whether it functionally has juridical personality, rather than scrutinizing its legal form or the method of its establishment.
III. Whether the UNFCCC and/or its Secretariat is an IO under international law
It is presently not clear whether the UNFCCC secretariat is formally an IO (or a part thereof) under international law. On the one hand, nothing in the United Nations Framework Convention on Climate Change (Convention or UNFCCC) stipulates that it is intended to establish an IO nor that the secretariat is intended to have independent legal personality. Instead, it establishes a Conference of Parties as the “supreme body of this Convention”,[3] and establishes the secretariat to serve the COP.[4] Furthermore, it is significant that the 1996 COP concluded that “the Conference of the Parties should consider, in the context of the review of the functioning of the institutional linkage of the Convention secretariat to the United Nations, whether the functions that have to be carried out by the secretariat necessitate that it be given juridical personality on the international plane.”[5] This language appears to assume that the secretariat does not have juridical personality on an international plane (since, if it did, it would not be necessary to carry out a review of this question). Instead, the COP appears to have considered that the institutional linkages of the UNFCCC secretariat with the UN may mean that such independent juridical personality was not necessary – although it is not clear why.
On the other hand, it should be noted that the Secretariat is vested with the express power under Article 8(2)(f) of the Convention “to enter, under the overall guidance of the Conference of the Parties”, into such administrative and contractual arrangements as may be required for the effective discharge of its functions.” The Convention thus functionally recognises the Secretariat as having at least partial independent juridical personality, so that it can enter into contracts of its own accord, albeit under the overall guidance of the COP. But the Convention does not formally recognise the Secretariat as having independent juridical personality, which is the cause of the ambiguity. Neither does it appear to give it full juridical powers on the international plane, for instance, it is not expressly given the right to enter into treaties – although in practice it has done so in the case of the Headquarters Agreement.
The Secretariat has reported that it has recently faced difficulties due to this ambiguity, noting that “[o]n one occasion, a Party insisted that it could not enter into an agreement with the secretariat because it allegedly lacked the necessary legal status.”[6] However, it is difficult to understand the position of this Party on this specific issue in light of the express language of Article 8(2)(f) of the Convention.
The other issue that the Secretariat has identified concerns privileges and immunities. Within the country in which it has its headquarters, in Germany, the UNFCCC secretariat has concluded a headquarters agreement recognising its juridical personality and its privileges and immunities.[7] But the question is whether privileges and immunities ought to be accorded to the UNFCCC secretariat by third States. In this connection, it must be emphasised that an IO does not automatically acquire privileges and immunities under international law. Rather, these will be accorded by way of a separate agreement, such as the United Nations Convention on the Privileges and Immunities of the United Nations, or the Vienna Convention on Diplomatic Relations. Any privileges and immunities the UNFCCC secretariat presently has outside Germany, therefore, have been expressly provided for (e.g., by domestic law, through bilateral treaties, or otherwise).
IV. Options for the UNFCCC to acquire independent legal personality under public international law
This section outlines three options that the UNFCCC secretariat could consider in order to clarify its status as an IO having independent legal personality under public international law, considering the pros and cons of each. These are:
1. amendment of the UNFCCC or adoption of a new instrument or treaty;
2. adoption of a Resolution at the UNFCCC COP recognizing the secretariat as having independent juridical personality on the international plane; and
3. entering into an agreement with the UN to become a specialized agency, which automatically vests independent legal personality and privileges and immunities.
For options (1) and (2), it may be preferable to identify the UNFCCC secretariat expressly as being recognised as having independent legal personality. If the UNFCCC as an organization were generally identified, it may raise questions as to how broadly the UNFCCC is defined and whether there are other organs within the UNFCCC that would acquire this power (such as the COP, for instance.) For option (3), this could be clarified in the context of negotiating the Specialized Agency Agreement with the UN.
1. Amendment of the UNFCCC Treaty or a new treaty
The first option for the UNFCCC to clarify that it has the status of an IO under international law would be to expressly state it in an amendment to the Convention, or even a new treaty designed exclusively for this purpose.
The amendment could be modelled off the Marrakesh Agreement Establishing the World Trade Organization, article VIII of which provides (inter alia):
Article VIII Status of the WTO
1. The WTO shall have legal personality, and shall be accorded by each of its Members such legal capacity as may be necessary for the exercise of its functions.
2. The WTO shall be accorded by each of its Members such privileges and immunities as are necessary for the exercise of its functions.
3. The officials of the WTO and the representatives of the Members shall similarly be accorded by each of its Members such privileges and immunities as are necessary for the independent exercise of their functions in connection with the WTO.
4. The privileges and immunities to be accorded by a Member to the WTO, its officials, and the representatives of its Members shall be similar to the privileges and immunities stipulated in the Convention on the Privileges and Immunities of the Specialized Agencies, approved by the General Assembly of the United Nations on 21 November 1947.
Any amendment could also expressly define what “independent legal [or juridical] personality” entails. For example, it could be defined as follows:[8]
Independent legal capacity means that the organization shall have the capacity, inter alia: (a) to contract, (b) to acquire and dispose of immovable and movable property, (c) to institute legal proceedings; (d) to carry out any other action or transaction as may be required for the effective discharge of its functions.
The disadvantage of this option is that it would require an amendment to the UNFCCC, which may be politically difficult or even risky, since proposing an amendment could open the door for other, more controversial aspects of the UNFCCC to be renegotiated. That is, institutional reform might prove to be a trojan horse for more substantive reforms – which may not be desirable given the current focus on implementation of the Paris Agreement within the COP. Neither is there likely to be political appetite to negotiate an entire new treaty for what is a relatively minor issue of institutional reform.
2. Adoption of a COP resolution
An alternative, less formal approach, would be to supplement the UNFCCC, clarifying by way of a COP Resolution that the UNFCCC secretariat is recognised as an IO having independent juridical personality.
Under the Vienna Convention on the Law of Treaties, such as a resolution would be legally effective as a “subsequent agreement between the parties regarding the interpretation of the [UNFCCC] or the application of its provisions”, or alternatively, as “subsequent practice” and would therefore have to be taken into account in interpreting the UNFCCC.[9] It could be argued that – in light of Article 8 of the UNFCCC – this is an interpretation not an amendment (and in any case, the dividing line between the two is porous). The ILC’s Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, expressly recognises that decisions adopted within the framework of a Conference of States Parties (such as the COP) may embody a subsequent agreement or subsequent practice:
A decision adopted within the framework of a Conference of States Parties embodies a subsequent agreement or subsequent practice under article 31, paragraph 3, in so far as it expresses agreement in substance between the parties regarding the interpretation of a treaty, regardless of the form and the procedure by which the decision was adopted, including adoption by consensus.[10]
It should be noted that these Draft conclusions are not yet widely recognised as crystallizing customary international law, but they may nevertheless be indicative of custom.
The Global Environment Facility (GEF) may offer a useful case study. It was originally established by the United Nations Development Program, the United Nations Environment Programme, and the World Bank, ahead of the 1992 Rio Earth Summit as a multilateral environmental fund to provide finance for, inter alia, biodiversity projects. It was subsequently restructured and established as a permanent, separate IO, to enhance the involvement of developing countries in the GEF. This restructuring was done by way of what was termed the “Instrument for the Establishment of the Restructure Global Environment Facility”, which was agreed by State representatives participating at the GEF meeting in March 1994.[11] This example provides a precedent of how IOs may be restructured by resolution or agreement of a meeting of the parties, rather than by formal treaty or amendment thereto. Nevertheless, it should be noted, that like the UNFCCC, the GEF or its secretariat is not formally endowed with independent juridical personality. Instead, the GEF secretariat is “supported administratively by the World Bank” while it “operate[s] in a functionally independent and effective manner.”[12] Neither is there provision for privileges or immunities.
3. UNFCCC becomes a UN specialized agency
A third option would be for the UNFCCC to formalize its association with the United Nations, and become a United Nations specialized agency.[13] On doing so, the UNFCCC (and its secretariat) would be recognised as possessing juridical personality. This is defined in the Convention on the privileges and immunities of the specialized agencies, Article II, as follows: “[t]he specialized agencies shall possess juridical personality. They shall have the capacity (a) to contract, (b) to acquire and dispose of immovable and movable property, (c) to institute legal proceedings.”
In order to become a UN specialized agency, the UNFCCC would need to negotiate and enter into a special agreement with UNFCCC and the UN Economic and Social Council, which would then need to be approved by the UN General Assembly. The main and significant advantage of the UNFCCC becoming a specialized agency is that it would mean that the UNFCCC Secretariat would be entitled to privileges and immunities outside of its headquarters, pursuant to the Convention on the Privileges and Immunities of the Specialized Agencies 1947. These privileges and immunities would apply vis-à-vis other States to the extent that they have acceded to this Convention and undertaken to apply its provisions to the UNFCCC.
It is unlikely that Option 3 is the best solution, since becoming a specialized agency may impinge on the freedom of the UNFCCC as well as becoming an additional administrative burden. For instance, the budgets of the specialized agencies are subject to UN General Assembly consideration and approval.[14] Moreover, the UN Economic and Social Council may consult with and make recommendations concerning the coordination of the policies and activities of specialized agencies.[15] It may also be a time-consuming process to negotiate the terms of the specialized agency agreement. Finally, while the language of Article 57 of the UN Charter is broad, it might require some creativity (although it is certainly possible[16]) to argue that the UNFCCC falls within “economic, social, educational, health, and related fields”, since the UNFCCC is instead focused on climate change and more broadly the environment.
[1]‘ILC Commentary to the Draft Articles on the Responsibility of International Organizations’, in Yearbook of the International Law Commission (2011, vol. II, part 2.) p. 49.
[2] David A. Wirth, ‘Activities of Organizations’, in J K Cogan et al (eds) The Oxford Handbook of International Organizations (OUP, 2016), p. 440 (“Although the model of an organic treaty establishing a comprehensive, self-contained regime is not formally an international organization, in practice the distinction frequently is not so clear. For example, a number of agreements, most notably the ECE regional conventions, rely on secretariats of existing organizations to supply those services. Even those that have technically freestanding secretariats often retain ties to the international institution under which they were negotiated. These regimes, moreover, are frequently treated as a practical matter as if they had legal personality. For example, the conventions for which the GEF serves as the funding mechanism provide advice to that institution, more or less as if the conventions themselves were formally constituted as independent entities under international law. While the environmental-treaty-as-governance-structure is formally an alternative approach to rulemaking in formally constituted international organization, the distinction is blurry and perhaps ultimately without much practical significance.”)
[3] UNFCCC, Article 7(1).
[4] UNFCCC, Article 8.
[5] Decision 15/CP.2, para. 2.
[6] Note by the UNFCCC Secretariat, “Legal Status of the Secretariat – Item 20€ of the provisional agenda for the 52nd to 55th session of the SBI”, 30 September 2021, para 14.
[7] Agreement among the United Nations, the Government of the Federal Republic of Germany, and the Secretariat of the United Nations Framework Convention on Climate Change concerning the Headquarters of the Convention Secretariat, 30 June 1996.
[8] This definition is based on the Convention on the privileges and immunities of the specialized agencies, Article II; along with a tweaked version of the language of Article 8 of the UNFCCC.
[9] Vienna Convention on the Law of Treaties, Article 31(3)(a) and (b), Article 32.
[10] ILC, Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, Conclusion 11(3).
[11] Instrument for the Establishment of the Restructured Global Environment Facility 1994, (I)(1). (See: https://www.thegef.org/sites/default/files/publications/gef_instrument_establishment_restructured_2019_v1.pdf.)
[12] Instrument for the Establishment of the Restructured Global Environment Facility 1994, Art 21.
[13] UN Charter, Arts 57 and 63.
[14] UN Charter, Art 17(3).
[15] UN Charter, Art 63(2), Art 64(1).
[16] For example, the link between health and the environment was recognised unequivocally in the ICJ’s Advisory Opinion on Nuclear Weapons – WHO.