$10 billion UN-linked climate change fund wants immunity from prosecution

(Reuters)

The Green Climate Fund, (GCF) a United Nations-affiliated piggy-bank  intended to finance climate change projects around the world, is determined to win sweeping U.N.-style immunities from prosecutions for its global operations--even though  the U.S., its biggest contributor, opposes the idea, and the U.N. itself says its own diplomatic immunities can’t cover the outfit.

The immunities issue could well spark even deeper opposition from Republican lawmakers in next year’s Congress to the Obama Administration’s aggressive climate change policies--which include a recent $3 billion pledge to the Fund.

“We would definitely be opposed to any extension of immunity to the Fund,” said a senior aide to Republican Senator James Inhofe of Oklahoma, who will chair the Senate Committee on Environment and Public Works starting in January.

“What do they need protection from?” he asked. “In essence, they are doing business development projects. If you look at the way millions of people do transactions across national borders, they do it without immunity and very successfully.”

Apparently undeterred, fund officials told Fox News that they are now trying to hammer out “bilateral agreement templates” that could be laboriously negotiated with each country where it operates—a total that could eventually reach the great majority of  the U.N.’s 193 members.

The Fund has already negotiated one agreement of immunity—with its new host country, South Korea, as a condition of moving its headquarters there last year.

CLICK HERE FOR THE SOUTH KOREA AGREEMENT

If the GCF succeeds in its broader negotiations, not only billions but eventually trillions of dollars in climate funding activities could fall outside the scope of criminal and civilian legal actions, as well as outside examination, as the Fund, which currently holds $10 billion in funding and pledges, expands its ambitions.

The shield would cover all documentation as well as the words and actions of officials and consultants involved in the activity documentation—even after they move on to other jobs. As a tasty side-benefit, the “privileges” attached to such “privileges and immunities,” as they are known in diplomatic parlance, mean that employees get their salaries tax-free.

Just why the GCF needs the sweeping protections is not exactly clear. In response to questions from Fox News, Michel Smitall, a Fund spokesman, provided mostly opaque answers.

“Privileges and immunities are intended to facilitate GCF activities in countries in which it operates and the GCF’s ability to use contributions by donor countries in an effective and efficient manner that serves the objectives agreed by its member countries,” he said.

Smitall added that it is “premature” to give out any information on the specific scope of  privileges and immunities, because these “would be negotiated bilaterally with countries in which the GCF operates.”

The immunities, however, “are expected to cover a range of issues,” he said,  “such as protecting GCF staff members acting in their official capacity and facilitating their official travel and protecting taxpayer dollars contributed by donor countries.”

The GCF, he added, “functions in a transparent manner, with strong oversight by its [24-member] Board. To the extent that there are civil or criminal actions against the GCF, we would work closely with the authorities of the relevant country.”

Smitall’s statements, of reassurance however, did not cover the prospect that in many developing countries, those same national authorities may well be direct or indirect partners in the activities the Fund is financing, or the fact that national authorities in many of the developing countries where the Fund hopes to operate are spectacularly corrupt.

The assurances apparently have also failed to win over Obama Administration officials (the U.S. is a GCF Board member). "The Green Climate Fund is an independent institution wiht an independent Board and Secretariat, which is by design separate from the United Nations," a U.S. Treasury official told Fox News.

Treasury officials did not answer, however,  other emailed Fox News questions about whether other countries supported the U.S. position, and about U.S. views on the GCF's new country-by-country approach.

The British government, which has recently given $1.2 billion to the GCF through its Department for International Development (DFID), is staying close-mouthed about the immunities issue.  “The GCF Board will be deliberating the issue of privileges and immunities in 2015 and UK will engage in those discussions,” a DFID spokeswoman told Fox News.

The GFC’s determined pursuit of immunity highlights the broad zone of legal ambiguity that is proliferating in the era of international action against climate change, led by organizations operating under the aegis of the United Nations without being explicitly part of it.

The GFC, for example, is a by-product of the United Nations Framework Convention on Climate Change, or UNFCCC, which is the legal home of the Kyoto Protocol and the forum for hammering out a successor treaty that is now expected to be unveiled at a climate summit in Paris late next year.

Despite its name, the UNFCCCC is also not an organ of the U.N. that automatically gets and passes on  the same kind of sweeping immunities as direct U.N. subsidiaries, or that are granted by international agreement to major development banks.  That position was underlined in an opinion from the U.N. Office of Legal Affairs in 2006.

The GCF, in turn,  is a child of the UNFCCC—via a 2011 decision of UNFCCC parties--with its standing just as fuzzy—a situation that it has been trying to change since at least 2012.

The effort to get that status shifted into a higher gear in November 2013, when the Fund’s Board sought another legal opinion from the U.N.’s Office of Legal Affairs on  whether it could obtain a “link” between its own status and that of the U.N., along “hybrid” lines derived from U.N. subsidiary organs.

The answer came back to the GCF board at a meeting this May—No.

CLICK HERE FOR THE BOARD’S QUERY AND REPLY

The Board apparently did not want to accept that answer.  A single sentence in a Board report at an October, 20144 meeting in Barbados notes that “a mission to

New York in August also helped prepare the UN Climate Summit and explore how the Fund may acquire privileges and immunities,” presumably with the same people who already  had replied in the negative.

(Questioned by Fox News about the August mission, GCF spokesman Smitall replied more circumspectly that “GCF Secretariat staff, including its general counsel, met with U.N. staff to engage in technical discussions to better understand the scope of U.N. immunities and the possibilities of U.N. linkage, given that the GCF is not a U.N. body.”)

While the rewards of  immunities are still something that GCF does not wish to discuss in detail, the potential risks they pose—to other people—have been raised by  critics who looked at disasters where U.N. immunities played an important role—such as Haiti.

U.N. peacekeepers from Nepal are almost universally believed to have introduced cholera in October 2010  to the earthquake shattered nation that had not seen the disease in a century. About 700,000 cases and 8, 560 deaths have been reported since then.

After denying U.N. involvement in the epidemic for many months, U.N. Secretary General Ban Ki-moon invoked U.N. diplomatic immunities in rejecting lawsuits brought against the world organization by relatives of the victims. Lawsuits in U.S. courts are still ongoing, but the State Department has supported the U.N.’s blanket immunity status.

“As we are seeing in the wake of the Haiti cholera epidemic, once we have agreed on privileges and immunities to any mission, they offer an extreme amount of protection to activities that could affect populations badly,” notes Brett Schaefer, an expert on the U.N. at the conservative Heritage Foundation in Washington. ‘’They should be awarded only in circumstances where they are truly necessary and critical to the mission or fulfillment of the mandate of the organization.”

“That is not the case,” he added, “with the GCF"—a position that the Fund is working as hard as it can to overcome.

George Russell is editor-at-large of Fox News and can be found on Twitter: @GeorgeRussell or on Facebook.com/George Russell