US domestic law and a new fund

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

Print Friendly, PDF & Email

Date produced: 07/12/2010

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

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

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

Summary:

Neither the constitution, nor any existing U.S. law would restrict the US from contributing to a fund that is under the authority of the COP.

However, any U.S. contributions to such a fund would need to be specifically authorized under domestic legislation. Furthermore, the annual amount of any contribution would be subject to the federal government’s yearly budget and appropriations process. This process would require approval from both houses of Congress as to the amount of any contribution.

Advice:

Neither the constitution, nor any existing U.S. law would specifically restrict the US from contributing to a fund that is under the authority of the COP.

There are several examples of existing multilateral funds created by international agreement and managed by an international agency or committee to which the U.S. makes annual contributions.

There is a specific process in the U.S. for initial authorization and ongoing annual approvals of this type of contribution:

• Congress must enact legislation specifically authorizing funding under U.S. law. Authorizing legislation would provide details as to the purpose for the funding. It might also specifically appropriate funds towards that purpose.

• In the absence of an explicit appropriation in the authorizing legislation, the responsible executive agency would exercise its discretion to request funding within its annual budget in order to carry out its obligations under the funding provision. In some cases, Congress might appropriate a lump sum each year to an executive agency in order for that agency to carry out its international activities. For example, the State Department’s annual budget includes the U.S.-assessed contribution to the UN’s regular budget –along with 43 other UN-system, regional, and non-UN organizations – in a “Contributions to International Organizations” (CIO) account.

• In the absence of a prior appropriation, any funding would be subject to the federal government’s yearly budget and appropriations process. This process would require approval from both houses of Congress as to the amount of any funding.

In the context of this query, the best example of a U.S. contribution to a fund managed by an international entity is the Multilateral Fund for the Montreal Protocol. The MF provides funds to help developing countries phase out the use of ozone-depleting substances. The MF is managed by an Executive Committee with representatives from seven industrialized and seven Article 5 countries elected annually by a Meeting of the Parties.

U.S. contributions to the MF were authorized under the 1990 amendments to the Clean Air Act (CAA). Under Title VI of the CAA, the EPA Administrator, in consultation with the Secretary of State, “shall support global participation in the Montreal Protocol by providing technical and financial assistance to developing countries that are Parties to the Montreal Protocol and operating under article 5 of the Protocol.” 42 U.S.C. § 7671p(b). The 1990 amendment also included an explicit appropriation under this provision for funding from 1991 to 1993. In FY 2009, the U.S. contributed more than $ 30 million to the MF through appropriations to both EPA and the State Department.

Other examples of funds managed by an international agency to which the U.S. makes annual contribution:

United Nations Children’s Fund (UNICEF)

• Funded through U.S. Department of Health and Human Services and the State Department

Ramsar Convention funding

• International activities funded by State Department

CITES funding

• Funded through US Fish and Wildlife Services

International Labor Organization funding

• Funded through State and Labor Departments