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close this bookEnvironmental Change and International Law: New Challenges and Dimensions (UNU, 1992, 493 pages)
close this folderIssues in international environmental law
close this folder2. International norm-making
View the document(introductory text...)
View the documentA. The international legislative process
View the documentB. Steps in the treaty-making process
View the documentC. The creation of customary law
View the documentD. The creation of soft law
View the documentE. Concluding remarks
View the documentAnnex
View the documentNotes

Notes

1. See the treaties listed in Bowman & Harris, Multilateral Treaties: Index and Current Status (1984) and in the annual Supplements thereto.

2. For the General Assembly's decisions, see A/C.6/39/8 and A/RES/39/90 of 13 Dec. 1984. For the data gathered, see Review of the Multilateral Treaty-Making Process, 21 UN Legislative Series (ST/LEG/SER.B/21, 1985) (hereinafter: Review of Treaty-Making). For a description of the review exercise, see P.C. Szasz, "Reforming the Multilateral Treaty-Making Process: An Opportunity Missed?", International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne, 409-441 (Y. Dirnstein, ea., Martinus Nijhoff, 1988).

3. The best-known examples of such declarations are those of the UN General Assembly in the human rights field, starting with the Universal Declaration of Human Rights (A/RES/217A[III]) and followed by others relating to racial and gender discrimination, torture, the rights of children, etc.; in other areas one might mention the declarations on outer space and on the seabed - all of which were later followed by detailed conventions. In the environmental field there are fewer examples, of which the most important is the 1972 Stockholm Declaration; one might, however, also mention the General Assembly's first resolution on "Protection of Global Climate for Present and Future Generations of Mankind' (A/RES/43/53 of 6 Dec. 1988), which, though not designated as a solemn declaration, did contain both substantive recommendations and procedural arrangements for starting the treaty-making process.

4. Both the 1972 Stockholm Declaration and the 1982 World Charter for Nature took several years to develop in specialized organs, respectively the Preparatory Commission for the United Nations Conference on the Human Environment and the Ad Hoc Group of Experts on the draft World Charter for Nature.

5. Within the UN system, it is clear that UNEP has become the predominant sponsor of international environmental treaties, both on a worldwide and on regional and local levels (e.g., in connection with its Regional Seas Programme). It is therefore interesting to note that nothing in its charter (A/RES/2997[XXVlI] of 15 Dec. 1972) specifically authorizes it, or its Governing Council or its Environment Secretariat, to undertake that function. Nevertheless, the only time when the General Assembly has interfered with UNEP's initiation of work on a multilateral treaty negotiation was in connection with the proposed agreement for protecting the global climate, for which the Assembly established the ad hoc Intergovernmental Negotiating Committee for a Framework Convention on Climate Change (A/RES/45/209 of 21 Dec. 1990) after UNEP and WMO had in effect initiated the process through their joint Intergovernmental Panel on Climate Change (IPCC).

6. Thus, at an early stage of the ozone negotiations, UNEP convened an Ad Hoc Working Group of Legal and Technical Experts for the Preparation of a Global Framework Convention for the Protection of the Ozone Layer, which worked from 1982 to 1985. See R.E. Benedick, Ozone Diplomacy, 42-44 (Harvard University, 1991). The negotiations on a climate-protection convention were preceded by several years of work by the Intergovernmental Panel on Climate Change (IPCC), established jointly by UNEP and WHO in November 1988, which presented its final report in 1990. See the Annex to this Chapter, infra.

7. AC 6/39/8, Section 1, pare. 1, and A/RES139/90, pare. 3.

8. See the description of these processes in Review of Treaty-Making. supra note 2 at Part Four.ll.D, III.B.

9. In the environmental field, the General Assembly originally assigned the coordinating function to UNEP's Environment Co-ordination Board (A/RES/2997 [XXVII)) of 15 Dec. 1972, part III), which was later superseded by an ACC committee called the Inter-Agency Board of Designated Officials (DOEM). See chapter 11 infra.

10. Thus the General Assembly directed the Intergovernmental Negotiating Committee it established by resolution 45/212 of 21 Dec. 1990 to prepare "an effective framework convention on climate change."

11. As pointed out by Benedick in Ozone Diplomacy, supra note 6, the negotiation of the 1985 Vienna Convention merged essentially seamlessly into that of the 1987 Montreal Protocol. and these in turn into the 1989 and 1990 Meetings of the Parties in Helsinki and London, at which crucial amendments to the Protocol were adopted. Even thereafter negotiations have continued, now in fore established by the Convention and the amended Protocol. such as the Executive Committee for the Multilateral Fund.

12. The Governing Council of UNEP, whose geographic composition is defined by pare. 1.1 of the establishing resolution (A/RES/2297[XXVII] of 15 Dec. 1972), consists of 16 African, 13 Asian, 6 eastern European, 10 Latin American, and 13 western European and other states. Though by gentlemen's agreements the members from each geographic region are selected by the region itself (i.e. by the meetings of the regional group representatives that take place continuously at UN Headquarters in New York), it is understood that the weightiest states (e.g. the permanent members of the Security Council) will always be included.

13. For example, in establishing the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change, the General Assembly decided that it should be "open to all States Members of the United Nations or members of the specialized agencies" (i.e., in effect all states) (A/RES/45/212 of 21 Dec. 1990, pare. 2), to remove it from the more restricted ambit of the Intergovernmental Panel on Climate Change (IPCC) that UNEP and WMO had previously established for this purpose.

14. See, for example, the many references to the role of NGOs, such as Friends of the Earth International, Greenpeace International, and the National Resources Defense Council (NRDC) in Benedick's Ozone Diplomacy, supra note 6. In setting into motion the formal negotiations for a framework climate convention, the General Assembly specifically called for "the organization of a broad-based preparatory process at the national level involving, as appropriate, the scientific community, industry, trade unions, non-governmental organizations and other interested groups" (A/RES/45/212 of 21 Dec. 1990, pare. 3), and also called for the participation of observers in the work of the Intergovernmental Negotiating Committee established by the same resolution. Id. at para. 2.

15. In this connection it might be noted that the UNEP Governing Council, in reporting to the General Assembly on its annual session, rarely mentions any details of its multifaceted norm-making activities and certainly includes no texts-in-progress (see, e.g., the Report of the Governing Council on the work of its sixteenth session, A/46125), while the International Law Commission (ILC) annually reports on every sentence of text it has considered, including the details of its debates (see, e.g., the Report of the International Law Commission on the work of its forty-third session, A/46/10).

16. See, e.g., Article 16(g) - (h) of the Statute of the International Law Commission.

17. This, for example, is true of the International Labour Organisation, whose conventions, under its Constitution, must be adopted by the International Labour Conference.

18. For example, every effort is being made to hurry to completion the negotiation of several environmental agreements, such as the framework convention on climate protection and that on biodiversity, before the 1992 UN Conference on Environment and Development (UNCED), so that these instruments may be opened for signature at that auspicious occasion.

19. As to the ozone negotiations, Benedick describes in chapters 6 and 7 of Ozone Diplomacy, supra note 6, the many important issues that remained to be resolved in Montreal, after three separate negotiating sessions had already taken place after the adoption of the 1985 Vienna Convention. Although every negotiation has its own dynamics, it is not unusual for the most important issues to remain open until the bitter end (and sometimes a little bit past it) as many participants are unwilling to make their final concessions (or to squeeze from their governments the authorization for still further ones) until faced with the prospect that they or their governments may be blamed for the collapse of a long-lasting high-profile negotiation.

20. For example, the Kuwait Regional Conference of Plenipotentiaries on the Protection and Development of the Marine Environment and the Coastal Areas (Kuwait, 15-23 Aug. 1978) adopted: (i) a Final Act of the Conference; (ii) an Action Plan; (iii) the Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution; (iv) the Protocol concerning Regional Co-operation in Combating Pollution by Oil and Other Harmful Substances in Cases of Emergency; and (v) five Resolutions on matters such as the Interim Secretariat, Financial Arrangements. Establishment of the Marine Emergency Mutual Aid Centre, etc.

21. It is often said that decisions reached by extensive negotiations, such as are usually required in order to reach consensus, represent the "lowest common denominator" (LCD) of the views of the participants. This terminology is mathematically incorrect, for the LCD of any set of numbers is one. In any negotiation one strives to reach the "highest common denominator" (HCD), but that HCD may he very low if the parties are many and their positions far apart.

22. The first important negotiation for which such a procedure was formalized was the Third UN Conference on the Law of the Sea - see the very elaborate Rule 37 of the Rules of Procedure of the Conference (A/CONF.62/30 or the several revisions thereof). For much simpler, more recent versions of such a rule, see Article 9(3) of the Vienna Ozone Convention and Article 10(9) of its Montreal Protocol as amended in 1990 in London.

23. Though formal "weighted voting" is anathema in most of the UN system IGOs and treaties (except of course for the Bretton Woods institutions). it cannot be entirely eliminated. Thus, for example, Article 16 of the Montreal Ozone Protocol provides that for entry into force at least 11 ratifications are required, but these must include those of states (or regional economic integration organizations) "representing at least two-thirds of 1986 estimated global consumption of the controlled substances." This means that states whose collective consumption equals just over a third of that of the world as a whole (i.e. just two or three) can block entry into force, regardless of how many other states are prepared to enter into the Protocol.

24. One such treaty, with important environmental provisions, is the 1982 UN Convention on the Law of the Sea, 21 I.L.M. 1261 (1982). which in spite of 161 signatures has now been waiting nearly 10 years for the necessary ratifications.

25. For example, the 1988 Wellington Convention on the Regulation of Antarctic Mineral Resource Activities, 27 I.L.M. 868 (1988) (6 signatories) and the 1977 Convention on Civil Liability for Oil Pollution Damage Resulting from Exploration for and Exploitation of Seabed Mineral Resources, 16 I.L.M. 1451 (1977) (unchanged since 1978: 6 signatures, no ratifications or accessions).

26. For example, the several nuclear liability treaties, such as the 1963 Vienna Convention on Civil Liability for Nuclear Damage (10 geographically scattered parties, only 2 of which have significant nuclear programmes.)

27. For example, both the 1986 IAEA conventions on Early Notification of a Nuclear Accident and on Assistance in the Case of a Nuclear Accident or Radiological Emergency, 25 I.L.M. 1370, 1377, could enter into force with just three parties, and their commitment could even be provisional.

28. See the entry-into-force provision for the Montreal Protocol, supra note 23.

29. This, for example, is true of the 1968 Nuclear Non-Proliferation Treaty (NPT), which explains why Pakistan will not join unless India does so, and Israel unless all the Arab states do.

30. This is evidently one of the reasons for the reluctance of many states to ratify the UN Convention on the Law of the Sea, see supra note 23, as it is known that at present certain financially important states, such as Germany and the United states, are not prepared to join.

31. An example of such a provision is Article 25(1) of the 1979 Constitution of the United Nations Industrial Development Organization (UNIDO), which provided for entry into force when 80 states that had ratified had, after consultations, agreed thereon; even then, the Constitution would enter into force only for the states that had so agreed. 'The object of this baroque clause was to permit the states concerned to make certain that enough of the large contributors were on board, without having to specify them (as Article 110[3] of the UN Charter or Article XXI.E of the IAEA Statute had done many years earlier) or even specifying a minimum contributions quota for the initial members. The result was that the Soviet Union was able to hold up entry into force for a period of some years, while attempting to negotiate conditions it had failed to have included in the Constitution. A much more common-sensical approach was used in respect of the 1987 Montreal Protocol, see supra note 23, though it left the depositary (the UN Secretary-General) with the technical difficulty of determining when the specified condition had been fulfilled.

32. For the leading study on this subject, see O. Schachter. Wider Acceptance of Multilateral Treaties (UNITAR/ST/2) (1969).

33. See the discussion in Part Three.lX of the Review of Treaty-Making, supra note 2.

34. For example, Multilateral Treaties Deposited with the Secretary-General: Status as of 31 December 1991 (ST/LEG/SER.E/10), chapter 27 of which reports on environmental treaties. As of that date, just three instruments and their related protocols were listed under that heading, because most UNEP-sponsored treaties (such as those for the Regional Seas Programme) are unfortunately not deposited with the UN Secretary-General but with the host state of the adopting conference, which makes it more difficult to secure regular up-to-date information about them.

35. Information about these can be found in the not so readily available UNEP Register of International Treaties and Other Agreements in the Field of the Environment, of which the latest version is: UNEP/GC16 /lnf.4, Nairobi, May 1991.

36. In general these questions are governed by Articles 39-41 and 58-59 of the 1969 Vienna Convention on the Law of Treaties.

37. Framework conventions have proven to be particularly useful in the field of international environmental regulation. They include the 1979 Geneva Convention on Long-Range Transboundary Air Pollution, the 1985 Vienna Convention for the Protection of the Ozone Layer, as well as the basic agreement of each of the regional seas regimes, such as the 1976 Barcelona Convention for the Protection of the Mediterranean Sea against Pollution. It is therefore not surprising that the General Assembly decided that the protection of the climate could best be initiated by a framework convention (A/RES/44/207 of 22 Dec. 1989, pare. 10).

38. See, e.g., Articles 2 and 8 of the 1985 Vienna Convention for the Protection of the Ozone Layer.

39. See, e.g., id. at Article 10(2) (a).

40. See, e.g., id. at Article 6 (establishing a Conference of the Parties [to the 1985 Vienna Convention for the Protection of the Ozone Layer]); id. at Article 7 (establishing a Secretariat).

41. This is specifically foreseen in Article 12 of the 1969 Vienna Convention on the Law of Treaties.

42. Such provisions frequently appear in the constitutional instruments of IGOs. since it would not be feasible for such an instrument to have different provisions with respect to different members of the organization, nor is it usually considered satisfactory to wait for every member to act on an amendment - which would, in effect, give a veto to every member. See, e.g., Article 108 of the UN Charter; Article XVIII.C of the IAEA Statute.

43. See, e.g., Article XVIII.D of the IAEA Statute.

44. See, e.g., Article 10(2)(c) of the 1985 Vienna Ozone Convention.

45. There are, however, some instances in which no arrangement was made for States Parties to exclude themselves from the effect of certain dispositions made by an IGO organ pursuant to a provision of a treaty. One minor but relatively early example is the power of the Board of Governors of the International Atomic Energy Agency to determine, under Article XX3 of the 1956 IAEA Statute, whether certain nuclear materials are "source material" within the meaning of the Statute (with all the consequences that Row from such a determination). The IAEA Board was later given the power, by Article 1(2) of the 1963 Vienna Convention for Nuclear Damage, to determine the maximum limits within which small quantities of nuclear material can be excluded by States Parties from the application of the Convention (a power that it exercised by a resolution adopted on 11 Sept. 1964) (the texts of the Convention and the resolution are set out in IAEA Legal Series No. 4, Vienna, 1976).

46. For example, the 1979 Geneva LRTAP Convention provides in Article I I for the Executive Secretary of the Economic Commission for Europe (ECE), under whose auspices the Convention was negotiated, to assume the secretariat functions to be performed under the new instrument. On the other hand, Article 7(2) of the 1985 Vienna Convention for the Protection of the Ozone Layer provides that UNEP, the sponsor of that instrument, is to assume the secretariat functions only on an interim basis, and that at the first meeting of the parties to the Convention a permanent choice be made among the secretariats of existing and interested IGOs. The parties to the Vienna Convention decided at their first meeting (Helsinki, 1989) to retain the secretariat within UNEP.

47. See supra note 4.

48. In the environmental field, the two principal general declarations are of course the 1972 Stockholm Declaration (proclaimed by the UN Conference on the Human Environment and endorsed by the General Assembly) and the 1982 World Charter for Nature (adopted by the General Assembly); the 1982 Nairobi Declaration is of lesser import because it was only issued by the UNEP Governing Council (albeit at a special session in which 105 states participated).

49. Thus Principle 21 of the Stockholm Declaration is quoted in the preambles of both the 1979 Geneva Convention on Long-Range Transboundary Air Pollution and the 1985 Vienna Convention on the Protection of the Ozone Layer.

50. It is basically on such grounds that the International Court of Justice held in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment (I.C.J. Reports 1986, p. 14) that the United States was bound by certain fundamental customary international legal principles also expressed in the UN and OAS charters, even though in the suit by Nicaragua these instruments could not be relied on directly because of the Vandenberg reservation to the US acceptance of the optional clause.

51. One area in which this may have occurred is in respect of the protection of the environment in warfare. As a consequence of the environmental outrages committed by Iraq in the course and especially at the conclusion of the Gulf War (spilling oil into the Persian Gulf and especially the torching of the Kuwait oil wells), several enquiries were undertaken to determine whether such conduct violated a number of relatively recently proclaimed rules designed to protect the environment in warfare, and in particular the 1976 Convention on the Prohibition of Military and Other Hostile Uses of Environmental Modification Techniques (ENMOD), 1108 UNTS 151, 16 I.L.M. 88 (1977); Articles 35(3) and 55 of the 1977 Protocol I to the 1949 Geneva Conventions on Humanitarian Warfare, 1125 UNTS Reg. No. 17512, 16 I.L.M. 1391 (1977); Principles 2, 5, 6, and 7 of the Stockholm Declaration and paragraphs 5 and 20 of the World Charter for Nature; although it appeared that Iraq was not a party to the two treaties and of course could assert that the Declaration and Charter were merely hortatory, the Chairman of a Canadian/UN Conference of Experts on the Use of the Environment as a Tool of Conventional Warfare (Ottawa, 10-12 July 1991) concluded (in a not uncontroverted statement) at the end of the session that ´´the customary laws of war, in reflecting the dictates of public conscience, now include a requirement to avoid unnecessary damage to the environment."

52. These are the main forms of international law referred to in Article 38(1) of the Statute of the International Court of Justice.

53. For example, the oft-cited Principle 21 of the Stockholm Declaration is largely a restatement of the classic sic utere rule.

54. For example, paragraphs 5 and 20 of the World Charter for Nature dealing with the protection of the environment in wartime may have become principles of customary international law. See supra note 50.

55. See, e.g., the 1978 UNEP Principles of Conduct in the Field of the Environment for Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States (UNEP Environmental Law Guidelines and Principles [ELGP] 2): 1985 Montreal Guidelines for the Protection of the Marine Environment against Pollution from Land-Based Sources (ELPG 7); 1987 London Guidelines for the Exchange of Information on Chemicals in International Trade (ELPG 10);1988 Environmental Guidelines for Coastal Protection Measures (Environmental Management Guidelines [EMG] 17).

56. See, for example, Article 2 of the 1979 Geneva Convention on Long Range Transboundary Air Pollution, by which the parties undertake that they "shall endeavour to limit and, as fur us possible, gradually reduce and prevent air pollution.... " (emphasis added).

57. Thus the General Assembly has given many reminders of the importance of observing the Stockholm Declaration. See, e.g., A/Res/371219 of 20 Dec. 1982, Final Preambular Paragraph.

58. For example, the practically universal compliance with the several moratoria on the killing of whales pronounced by the International Whaling Commission is largely due to United States pressures, which has threatened a number of recalcitrant states with miscellaneous trade sanctions (denial of fishing rights in American waters or prohibition of exports of marine products to the United States). Through similar devices a large measure of compliance or promises of future compliance have been secured for the General Assembly's successive appeals to ban large-scale pelagic drift-net fishing (resolutions A/441225. A/451 197, and A/46/215).

59. See the annex to chapter 11, infra.

60. Social scientists have characterized these as "epistemic communities"; see, e.g., J. Ruggie, 29 International Organization, 557 (1975); P. Haas, 43 International Organization. 377 (1 989).