The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A group of 28 senators wrote to Secretary of State John F. Kerry Monday, demanding that, in compliance with U.S. law, no funding be provided to an obscure U.N. agency, the U.N. Framework Convention on Climate Change (UNFCCC). The little-noticed development raises larger questions about executive nonenforcement of federal law and the collateral damage to international institutions caused by the Palestinian issue.
UNFCCC (pronounced phonetically) has recently accepted the Palestinian Authority as a state party. The move is part of the Palestinian effort to be declared a state outside of negotiations with Israel. U.S. policy opposes such moves, and thus requires the defunding of any U.N. organization that grants the Palestinian Authority such status.
Federal law bars any funding for U.N. agencies or affiliates that "grants full membership as a state to any organization or group that does not have the internationally recognized attributes of statehood." In the official U.S. view, "Palestine" is not a state. Thus when the Palestinian Authority joined the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 2011, it triggered federal defunding of that organization. Now, federal law requires a similar cessation of any funding to UNFCCC.
As was the case when the Palestinians joined the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 2011, this event should trigger provisions in U.S. law that will prohibit any future U.S. funding to the United Nations Framework Convention on Climate Change.
The Obama administration requested $13 million for the UNFCCC in the 2017 fiscal year. It is unclear if the prohibition would also include much larger U.S. contributions to the Green Climate Fund, which is a mechanism under the UNFCC framework to assist developing countries in adapting to and mitigating the predicted consequences of climate change. . . .
The language in the [federal defunding] provisions is clear and provides no waiver.
The U.S. has not provided any funding to UNESCO since 2011. However, the Obama administration has repeatedly urged Congress to amend the law to allow continued funding for UNESCO. Now that the Palestinians have joined the UNFCCC, which is central to the international climate change effort, the Obama administration can be expected to double its efforts to change the law.
There are actually two separate U.N. defunding laws, a 1990 measure which bars aid to United Nations "specialized agencies" and a 1994 law which extends the prohibition to other to U.N. "affiliated organizations." The former term refers to a distinct kind of U.N. organization, of which UNESCO is one; the latter is a more general term, rather than a specific organizational aspect of the U.N. "Affiliated organizations" thus extends to all types of "U.N. system" agencies.
Then UNFCCC organization is certainly a U.N. affiliate. While UNFCCC is a treaty, it is also a bewildering array of institutional bodies. It is administered by a secretariat that is "institutionally linked" to the United Nations. It is "administered under U.N. rules and regulations," the head of the agency is appointed by the U.N. secretary general, and its staff sit in U.N. offices. It is listed in the United Nations' directory of "United Nations System Organizations." Indeed, UNFCCC officials can give work assignments to U.N. bureaucrats.
Indeed, the UNFCCC's handbook states that it is "under the umbrella of the United Nations."
If this is not "affiliated," nothing is. The question is whether the executive branch will follow the law and make the UNFCCC pay the (fairly small) price for dabbling in Middle East politics.