TWN Info Service
on Climate Change (Sept11/04)
13 September 2011
Third World Network
Strong call for
Green Climate Fund to have legal personality
Geneva, 13 Sept (Meena
Raman) – Several members from both developed and developing countries
of the Transitional Committee (TC) to design the Green Climate Fund
(GCF) under the United Nations Framework Convention on Climate Change
(UNFCCC) called for the Fund to be endowed with legal personality so
as to enable it to fulfill its objectives and functions effectively.
This call was made
during the third meeting of the TC in Geneva
on Monday, 12 September.
Most of the developing
countries on the TC including Egypt,
Brazil, China, India,
the Democratic Republic of Congo (DRC) and Barbados called for the GCF to have
legal personality, learning from the experiences of other funds such
as the Multilateral Fund under the Montreal Protocol.
Barbados drew reference to the Global
Environment Facility (GEF) which was disadvantaged by not having a legal
status and depended on the World Bank for its legal capacity.
Some developed countries
echoed the sentiments of developing countries and this included Sweden, Switzerland
said that if the TC members were serious about the GCF being ambitious,
then the issue of it having legal personality could not be avoided.
The United States wanted more consultations
with its lawyers on the matter, saying that the issue was complex. This
drew sharp criticisms from DRC, Brazil
and China, while
Russia said that
the problem was political and not legal.
Day two of the meeting
saw an intense exchange of views on 4 of the 5 issues identified as
key by the co-chairs. The four issues discussed were (i) the relationship
between the GCF and the Conference of Parties (COP); (ii) legal status
of the GCF, which involves the issue of the legal personality or legal
capacity, as well as privileges and immunities for the GCF and/or its
officials; (iii) issues related to the establishment of an independent
secretariat including the selection of its head and (iv) the use of
The 5th issue on “the
structures and processes for the engagement of the private sector” is
expected to be discussed on 13 September, which is the final day of
In considering the
issue of the legal status of the GCF, Mr. Trevor Manual of South
Africa who co-chaired the meeting with Mr. Ketjil
Lund of Norway
provided 3 options.
Option 1 is for the
GCF not to have any legal personality, in which case the Fund would
depend on another body for its legal capacity as is the case with the
GEF and the World Bank.
Option 2 is for the
GCF to have legal capacity but not juridical personality as is the case
with the Adaptation Fund (established under the Kyoto Protocol) where
legal capacity is derived through German law. (The Adaptation Fund Board
has been granted legal capacity by the Government of Germany under its
national laws) and option 3 is for legal personality to be endowed through
a decision of the Conference of Parties (COP) or through a new treaty
or the national law of a Party.
Dr. Omar El-Arini of
Egypt (who served as the first Chief Officer of the Secretariat of the
Multilateral Fund of the Montreal Protocol from 1991 till 2003) stressed
the need for the GCF to have legal personality so that it has capacity
to enter into agreements with international, regional and national organizations;
have capacity to enter into contracts with implementing entities and
with the trustee; to enable the Fund to be able to borrow or lend money;
issue guarantees; to employ staff; acquire property and institute legal
proceedings in defence of its rights. It was necessary for the GCF to
act as an independent entity. He said that it was not difficult for
the GCF to be conferred juridical personality and referred to the experience
of the Multilateral Fund (MF) where a simple decision of the Meeting
of Parties of the Montreal Protocol conferred such personality.
Mr. Farrukh Khan of
was former Chair of the Adaptation Fund Board) also supported the call
for the GCF to have legal personality, as this would enable the GCF
to enter into contractual agreements with the private sector and have
capacity to float climate bonds. This was also important to ensure direct
access for to enable direct contractual agreements with entities. He
stressed the need to identify the host country of the GCF and for criteria
to be developed to determine this.
Mr. Jan Cedergren of
Sweden said that
if members were serious about the GCF’s objectives of being ambitious,
then the issue of the Fund having a formal legal personality could not
be avoided. The TC should declare its intent to create the legal personality
and how this was to be done was another matter.
Ms. Bernarditas Muller
of the Philippines also echoed the need for the GCF to
have legal personality and referred to the joint submission of 13 countries
in Tokyo which supported this.
She also said that there was no need for a memorandum of understanding
between the GCF and the COP as suggested by some developed countries
as it was the COP that established the GCF and the legal personality
of the GCF could be conferred through a COP decision.
Ambassador Sergio Serra
of Brazil echoed
support for the call for the GCF to have legal personality, stressing
that it was the only route to achieve the objectives of the Fund. He
said that legal personality should be conferred by a decision of the
Dr. Yaga Reddy of India also echoed
the call for the GCF to have legal personality.
Mr. Selwyn Hart of
Barbados agreed with Sweden and said that it was clear,
from the experience with the GEF that the GCF needed legal personality.
He said that members had heard from a senior official of the GEF that
one of its disadvantages or failings was the absence of legal personality
and TC members should not replicate this mistake in the case of the
from Switzerland made similar comments as Barbados in relation
to the disadvantages of the GEF and supported the need for the GCF to
have legal personality.
Alexey Kvasov of Russia said that
there were many legal options but the issue was a political. He said
that there was need for an interim solution as a full fledged international
treaty to confer legal status was not possible. There was need for high
aspirations and he was “inspired” by “hints of a solution” by Dr. El-Arini.
Mr. Andrzej Ciopinski
of Poland said that
it was premature to decide on the issue of legal personality and the
best way to enable such personality was through an international treaty.
Mr. Gilbert Metcalf
of the United States US said that the issue was complex and wanted more
time for consultations with lawyers before deciding on the issue. He
said that legal attributes of GCF would depend on the key operational
attributes of the Fund. If legal personality is to be through a treaty,
this could take years as there would have to be negotiations with every
In response to the
US, Mr. Tosi Mpanu
Mpanu of the Democratic Republic of Congo (who is also Chair of the
African Group) said that it was unacceptable that members were being
asked to go home and consult their lawyers before deciding at this 3rd
meeting of the TC and delay the possibility of a successful outcome.
He said that much reference has been made to the example of the establishment
of the Multilateral Fund and members can learn from that.
Ambassador Serra of
Brazil supported the DRC representative saying
that the decision is political and as suggested by Sweden, if the TC members were serious,
a decision can be made to confer legal personality on the GCF.
Mr. Wu Jinkang of China echoed the sentiments of DRC, Brazil and Sweden
that if members were serious about the GCF, legal personality can be
conferred and a way out for this could be found, as suggested by Egypt. This was
an issue for the TC members and not for lawyers.
Germany also wanted more information
and clarity on the issue. Ms. Alicia Santamaria of Spain said that
there was no need for a legal discussion now as form followed functions,
but it was open to all options and possibilities. Bangladesh
also echoed similar concerns as Spain
and the US.
also was not ready to take a decision on the issue and wanted more clarity.
Mr. Manuel said that
it was clear that members knew what was wrong with the GEF and do not
want to take that route. He wanted the issue of the legal personality
to be concluded at this meeting in Geneva.
He proposed that the matter be discussed further on 13 September.
(Discussions on the
other issues will be reported in forthcoming articles).
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