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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

(introductory text...)

Paul C. Szasz

A. The international legislative process

Fatalists may attribute it to serendipity and mystics to the Gaia hypothesis, but when the world community, due to its increasing interdependence, required an ever greater number of important international norms, the international legislative process, i.e. the process for creating these norms, accelerated its output enormously - indeed to the point where both those who are charged with implementing these norms and those who merely must keep track of them threaten to be overwhelmed. However, a glance around the international legal landscape into other areas, such as the settlement of disputes and the enforcement of rules and decisions, indicates that in those areas the demonstrated need has not translated itself into corresponding solutions, suggesting that there may be structural reasons why one process - and that the least-known one - is more fruitful than the others.

Further reflection will suggest that, peculiarly, the international legislative process is as productive as it is - depending on how one counts, there are well over 1,000 multilateral treaty instruments, to which several score are being added each year1 - precisely because it is by its very nature an imperfect process. That is, not only does it share the well-known multiple weaknesses of most municipal lawmaking: it is often slow and delay-prone; politically necessary or convenient compromises may reduce the final product to a low common denominator; other distortions are introduced by special interests or the vagaries of unduly influential participants, and there are damaging cross-connections to other, irrelevant issues - in addition, the products of the international legislative process are generally speaking not binding per se, but only in respect of those states that specifically accept them, and then only if a sufficient number of states do so, a requirement that may take more time to fulfil than the formulation and adoption of the instrument. But it is this very possibility, of not accepting subjectively unacceptable international legislation, that makes the process itself acceptable to governments. That is, they know they can only be bound if they decide they wish to be bound, and even though they themselves participate in the collective law-formulating and -adopting process, they do not have to decide whether to subject themselves to the product until after they have seen the precise wording of the treaty in question - while in agreeing to a judicial or arbitral settlement of a dispute they must make an advance commitment to abide by an as yet unformulated decision to be made by a third party.

In spite of its considerable productivity, the international legislative or norm-making process has so far been insufficiently studied, though a relatively recently concluded General Assembly exercise gathered a great deal of useful background material and considered a number of (but endorsed only a few) interesting suggestions for proposed improvements of the multilateral treaty-making process.2 For the purpose of the present exercise it will be useful to draw on that earlier study, though here the focus will be more sharply on the creation of environment-related norms.

There are of course several sources of international law, of which the most important for the modern environmentalist are multilateral international agreements, so-called law-making treaties, which may be concluded on a universal, on other worldwide, on regional, or on subregional or local bases. Not to be entirely disregarded, however, is customary law, which though not as easily and unambiguously manufactured as conventional law, is still to some extent subject to consciously directed adjustment and thus will also be examined briefly here. Finally, of particular importance for the international environmental regimes is so-called soft law, i.e. norms that are not strictly binding but are still generally likely to be observed.

The forge or forum in which new international law is created, whether the conventional or customary "hard" law or the quite extensive "soft" kind, has since the Second World War, and especially in the closing decades of the twentieth century, almost exclusively become the international intergovernmental organizations (IGOs). Indeed, the development of the process (described in some detail in the following sections) and the great increase in its output have been due largely to these IGOs, many of which are dedicated entirely to the formulation of new international norms or have established specialized organs for that purpose.

B. Steps in the treaty-making process

Although the international legislative process is by no means as standardized and centralized as the corresponding municipal ones, nevertheless, at least for purposes of analysis, it is possible to distinguish a number of successive steps.

1. Precursors to the treaty-making process

In certain instances an international organ, faced with a newly emerged or recognized problem as to which international action appears desirable and urgent and as to the general tenor of which a wide consensus appears to exist, will in the first instance adopt a declaration expressing that consensus, making certain recommendations (that in the parlance of international lawyers may be considered as "soft," or non-binding, law) and perhaps taking the initial steps (described below) towards the formulation of a law-making treaty.3

Though in some instances the adoption of such a decision occurs as soon as the organ is seized of the subject (i.e. at the same session), in others there is a lengthier process of consideration, including by subsidiary organs, which itself constitutes an abbreviated version of the treaty-making process.4 Indeed, in some instances the organ may in effect embark on the quest for a treaty, only to discover that that may be a difficult goal to attain and that at the current stage only the adoption of a non-binding resolution can be achieved.

2. Initiating the treaty-making process

Evidently an idea that eventually becomes an international convention originates somewhere in the brain of some person, though in retrospect it may be impossible to identify the author and indeed the creative process may from the very beginning have been a substantially collective one. However, for official purposes a proposal generally enters the consciousness of the international community when it is first advanced, usually in some IGO organ, by the representatives of one or more member states - or possibly by those of a nongovernmental organization (NGO).

Assuming that IGO organ to be a formally competent one (or, if not, that it forwards it, as part of a resolution or report, to one that is)5 to decide on whether or not to initiate a process for formulating a treaty in the proposed sense, that organ must then consider whether it should do so. In effect it must decide if the perceived need for and the anticipated value of the proposed instrument, and the likelihood of achieving it, justify the commitment of the resources expected to be required to formulate, adopt, and bring the instrument into force. For this, each of the following points must appropriately be taken into account:

(a) The need that the new instrument is to meet

(b) The existing legal regime, including the extent of its applicability to the perceived problem

(c) Any relevant legislative efforts in other fore

(d) The likelihood of success in developing an instrument, i.e. is it foreseeable that the required measure of agreement can be reached on the solution aimed for?

(e) The optimal form for the proposed instrument: treaty, solemn declaration, model law or rule, etc.

(f) The likelihood that the proposed instrument will be accepted by a sufficient number of significant states

(g) An anticipated time-schedule for the project

(h) The expected costs of formulating and adopting the proposed instrument, both to the IGO concerned and to the states participating in the process

(i) Particularly in formulating instruments in relation to technical or scientific problems (such as outer space or the environment) it may be necessary to carry out extensive scientific studies or research to determine the parameters of the problem and the lines of potential solutions6

To develop answers to these several questions, various devices may be used, ranging from secretariat research carried out in a library, to surveys of member states and of interested IGOs and NGOs, to meetings of experts. Sometimes the initiator of the proposal will have anticipated some or all of these issues and presents a report addressing them.

In any event, in due course a decision must be taken as to whether to proceed with a full-scale effort to formulate the instrument in question. In taking such a decision, the organ concerned should be conscious (but often apparently is not, at least sufficiently) that by the nature of institutional inertia a project of this type, once undertaken, is not likely to be abandoned, even if the prospects of success should fade, due to either a later, better understanding of the problem or actual changes in circumstances, and even if time and cost projections are wildly exceeded.

Other types of unsatisfactory outcomes must also be anticipated. One is the eventual production of an emasculated instrument, reflecting an inability to agree on actually useful rules, and that in particularly unfortunate circumstances actually constitutes a retreat from a higher level of international obligation previously existing or in the course of development. Alternatively, an instrument may be formulated and adopted that contains such a high level of obligations that many states, or at least certain crucial ones, refuse to participate. In either event, an ill-planned project may then constitute, at least for a time and in a particular forum, a bar to further productive work.

For these reasons, the question of whether any limits should be placed on the initiation of the multilateral treaty-making process was one of those most intensively explored by the General Assembly in its above-mentioned review exercise. In the end the Assembly refrained from establishing or even endorsing any explicit restraints, as allegedly incompatible with the sovereign right of any state to introduce proposals in any international organ in which it participates. Nevertheless, the General Assembly in effect appealed to states to show self-restraint in initiating proposals of this type, and by indicating the criteria by which IGO organs should study such proposals it at least implied that those that do not measure up should be rejected.7 In addition, the studies that were carried out as part of the review exercise brought to light several examples, particularly in IGOs that are systematically engaged in the legislative process, such as the International Labour Organisation (ILO) or the Council of Europe (C/E),8 of elaborate safeguards against formally starting up the treaty-making machinery without establishing in advance the prospect of success within a reasonable time.

In this connection it should be pointed out that one distinctive feature of the international legislative process, compared to municipal ones, is its highly decentralized and consequently at best poorly coordinated nature. Competence to deal with particular questions, such as environmental ones, may exist simultaneously in political organizations such as, on the worldwide level, the United Nations, and, on regional ones, the Organization of American States (OAS) or the Organization of African Unity (OAU), in certain technically oriented specialized agencies on the worldwide or the regional level, in specialized worldwide (e.g., UNEP) or regional organs, in regional organs of worldwide organizations (such as the Regional Commissions of the United Nations), or even in some treaty organizations or organs (such as the Meeting of Parties to the Vienna Ozone Convention). Which of these chooses to initiate a particular project may thus depend on chance, on the aggressiveness of an executive head, or on obscure political considerations that lead interested states to approach a particular institution. Though the UN General Assembly can of course issue directives to its own subsidiary organs and those of the Economic and Social Council (ECOSOC), in respect of specialized agencies it can only issue recommendations, which the latter are obliged to duly consider, while independent regional organizations are not even under such a gentle restraint. Though within the UN system there are coordinating organs, such as the Administrative Committee on Co-ordination (ACC), these operate primarily on the inter-secretariat level and therefore can influence the political organs only indirectly by facilitating the flow of information about what activities are underway or planned in the various organizations participating in the system.9 Ultimately, it may therefore be left to states, acting through their representatives in the various IGOs, to prevent or discourage overlaps and duplications, and selectively to eliminate lacuna.

3. Formulating multilateral treaties

Once a competent IGO organ decides formally to initiate the process of formulating a multilateral law-making treaty - or, for that matter, some other type of norm-establishing instrument - the second major stage in the international legislative process commences. This stage, in turn, consists of a number of steps, which, however, do not necessarily follow each other in a neat sequence but may overlap, iterate, in part be omitted, and in any event be structured in many different ways. All that is possible is to give a general description of the purpose and preferred means of executing each of these steps, on the understanding that the actual process may differ in respect of any given exercise, driven either ad hoc by the internal dynamics of the particular process or by certain more or less rigid schedules that may be characteristic of a particular organ (such as the International Law Commission, the ILC) or organization (such as ILO).

(a) Preliminary studies

Depending on what studies were carried out before the project was first proposed or in any event as part of the decision to initiate it, it may or may not be necessary to carry out further investigations before beginning to formulate the instrument. Such studies may deal, especially in respect of proposed environmental instruments, with scientific or technical matters, or with the current state of national and international activities and laws in the area.

As to how any necessary studies are carried out, this depends in part on their nature and in part on the usages of the IGO concerned. Often this task is assigned to the organization's secretariat, which can either perform it with its own resources, with specially engaged staff (especially if the exercise is a large-scale one - such as the Third UN Conference on the Law of the Sea, UNCLOS III), or with consultants. Another favoured approach is to convene expert groups, the members of which are either appointed by the executive head of the lGO (who is likely to do so on the basis of governmental recommendations and will in any event take into account various political balances) or by particular states interested in and able to participate in the project. Finally, the task may be carried out by a particular subsidiary organ of the sponsoring IGO, especially if such organ has itself an expert character (such as ILC).

(b) Preparing an initial draft

Perhaps no other step can be carried out in so many different ways as the preparation of the initial draft of a proposed norm-creating instrument. Sometimes a draft is submitted by the initiating state as part of its first proposal of the project - though, unless such submission is preceded by careful albeit informal consultations, it is likely to create suspicions and even a backlash. Sometimes the preparation of such a draft is assigned to the organ charged with preparing the above-mentioned initial studies and constitutes part of its report. Sometimes a draft is prepared entirely outside the sponsoring IGO, for example by an interested NGO. Lastly, the draft may be prepared in the negotiating forum (see next subheading) by a specially assigned rapporteur, a working group, or the secretariat, or simply evolve gradually out of the consideration of the subject.

Rather than starting with a complete draft text, with each of at least the substantive provisions spelled out completely, even if only tentatively, it is sometimes found preferable to start with only "heads of agreement," i.e. with just indications of the principal issues and how it is proposed to resolve them. In any event, the so-called "formal" or "final clauses" are often omitted entirely at this stage, unless some aspect of them (e.g., the number or type of parties; the arrangements for entry into force) impinge directly on the substance.

(c) Negotiation

The most difficult and generally the longest substage in formulating a new instrument is that required to negotiate its terms and text. It is this part of the process that is most clearly political, in that it involves the mediation of the various interests concerned: those that favour a strong and those that favour a weak instrument; those that desire a wide and those that prefer a narrow one: those that prefer different approaches based on differing scientific perceptions or legal habits; and especially those that may wish to obtain resources from the proposed new regime and those that might have to contribute resources in order to make such a regime feasible and acceptable.

The need for such negotiations naturally informs the entire legislative process - indeed, it is one of the reasons why that term is appropriate, for the negotiations required to formulate international laws may differ in scope but not in any other essential respect from those required for national or even local laws. Often negotiation starts before the treaty-formulating process has been formally initiated, in that the initiator may consult with leading states before ever introducing a proposal. The considerations involved in whether to initiate the process may also already involve advance decisions as to substance and form, which may be reflected in the terms of the IGO resolution approving the start of the process10 and also in the choice of or in the composition of any ad hoc organs (whether expert or representative) mandated to carry out or to assist in the formulating process. Though in principle the negotiations culminate in the decision on the adoption of the proposed instrument, in practice they may continue (as they have in respect of UNCLOS and especially the protection of the ozone layer11) even into the post-adoption period.

Naturally, the preferred organ for carrying out negotiations is a representative one, that is an organ consisting of the instructed representatives of states. If the sponsoring IGO is a worldwide or large regional one, then most often the designated organ is a restricted one, that is not a plenary one in which all IGO members are represented. A standing restricted organ (such as the 58-member UNEP Council or the governing organ of a specialized agency) always has a balanced composition considered appropriate for the general business of the IGO12 if the task is assigned to an ad hoc organ, then the agreement about its composition may constitute, as pointed out above, one of the initial manoeuvres in the negotiating process.13

However, it should be understood that even if certain steps in formulating an instrument are assigned to an expert organ, the latter is likely to function, in effect, as a negotiating forum. This is so because practically always such a body is established with a politically/ geographically balanced composition, and because many of the experts, whether nominally appointed ad personam or directly by governments, will in effect speak for, and only after consultations with, their national authorities; thus it is most unlikely that even an expert committee report will be entirely apolitical.

Although the negotiations are normally carried out by persons formally designated as state representatives, such as the members of IGO organs, it has become more and more customary to permit a certain participation to the representatives of non-official organizations, in particular of NGOs.14 Although such representatives cannot participate in any formal decision-making, whether by voting or in formulating consensi, they can often attend many of the meetings of representative and even some expert organs, they can sometimes address these organs orally, and often may submit written observations and sometimes even proposals. It is this device that increasingly permits the interested public, i.e. that which supports the NGOs that have standing to intervene, to participate in the international legislative process, in somewhat the same way as the public can participate in the work of certain national legislative organs. This is a most significant and relatively recent development, which is particularly important in the environmental field, where a number of well-financed and knowledgeable NGOs (including, of course, those established by interested business and industrial councils) operate and consider their participation in international norm-making to be a major aspect of their work.

(d) Consultations with governments

The international legislative process is, in spite of the increasingly frequent but still peripheral involvement of ad personam experts and of NGOs, primarily a dialogue among governments, carried out by their designated representatives for the most part in IGO organs.

Thus, in a sense, governments, at least the principal ones, are technically always up to date with the state of progress of any given legislative project

Nevertheless, especially since the bulk of this work is normally carried out in low-profile IGO organs with restricted membership, it is useful for many governments, and especially for the majority not represented on such organs, to receive periodic progress reports and in particular to be given an opportunity to make a direct input. This may be accomplished in several ways, but two are the most usual.

Organs with restricted membership, whether or not these are constitutional principal organs (i e. established directly by the treaty creating the IGO) or subsidiary ones, normally report periodically to a plenary organ, either on their work in general or by request on particular projects. In reporting on a legislative project, they may, depending on the custom of the organization, report in greater or lesser detail, ranging from a mere statement that work is continuing, to transmission of the texts of the latest draft, perhaps indicating areas of disagreement (often by the use of square brackets to designate disputed or alternative texts), or even the submission of summary or verbatim records of the relevant debates.15 These may then be discussed in the plenary organ, again at greater or lesser length as is the house custom, thus giving all the members of the organization a chance to indicate their views. The culmination of such a discussion may be a specific resolution asking that the legislative exercise proceed in a certain way or take into account certain points, or it may merely result in the relevant records of the plenary organ being transmitted to the junior organ for its information as reflecting the reaction of a larger circle of governments.

An alternative method is to inform the governments of member states directly about the progress of the legislative project, usually through communications addressed to them individually by the executive head of the IGO. Such communications may be required by the mandate of the formulating organ to be made at certain stages of the work (e.g., when a complete draft has been prepared)16 or may be required on an ad hoc basis by the plenary organ. In many instances the communication will request that reactions to the report, and sometimes answers to specific questions, be communicated within specified deadlines to the executive head for transmission to the organ concerned. This process, which is not likely to be undertaken routinely or frequently, gives an opportunity to all potential parties to the instrument under consideration, and especially to those not otherwise represented, to communicate their considered and detailed views as to all questions at issue.

(e) Consultations with the public

Although, as just pointed out, provision is frequently made in the international legislative process for formal consultations with governments, the same is rarely if ever true in respect of consultations with other entities, i.e. such as might be considered as representing the public in a different way from governments. Nevertheless, as multilateral treaty-making is generally carried out in the open, i.e. in meetings at least in principle open to the media and to interested NGOs, and at least the reports made from one organ to another or from one session of an organ to another are rarely subject to classification, the public usually has sufficient access so as to be able to exert such influence as it can - which usually means through the normal process in democratic societies by which popular views may be translated into legislative recommendations addressed to the executive, which in turn instructs the negotiators.

This process is, of course, at best unsystematic and often ineffective, in particular in respect of the views of those who do not happen to be citizens of an advanced democratic country. And even in those, certain categories of persons are traditionally politically powerless. Nor are the interests of future generations systematically protected, but only insofar as certain articulate and sensitive individuals or groups take account of them.

4. Adopting multilateral treaties

When it is judged by the competent organ (which may be the one charged with the formulation of the proposed treaty instrument or the plenary organ to which it reports) that the process of treaty formulation is complete or at least that it has progressed as far as it can at that stage, a decision as to its adoption must be taken. One possible decision of course is that the instrument under consideration should not be adopted, either at all or at the current time. If it seems otiose to return it to the formulating organ, the project may be put into indefinite abeyance or may be terminated entirely, for example if a change in circumstances, such as the formulation of a similar instrument in some other forum, makes it pointless to proceed. If, however, as is usually the case, the prospects of a carefully elaborated treaty do not appear to be entirely unpromising, a number of further decisions must be taken.

(a) Choice of forum

If it is decided to move to adoption, the forum in which this should occur must be designated. In some instances that decision is predetermined by the constitution or practices of the IGO, which may dictate a particular procedure.17 If the decision is open, the choice is normally between a standing organ and an ad hoc conference and will be based on several considerations, of which the following are the most important:

(a) The adopting organ should, as closely as possible, consist just of all the potential parties to the instrument - it being equally undesirable to have decisions as to the provisions of a treaty made by governments that may not or will not become parties as it is to exclude governments that are expected to participate. Thus, if there is no standing organ that fulfils that specification (e.g., in respect of a regional-seas agreement), then it is preferable to convene a specially composed conference.

(b) If all that remains to be done is to agree on the formality of the adoption, then this can usually be handled as part of the routine business of the competent standing organ; however, if extensive work still has to be done, it may be difficult to accomplish this within the crowded work programme of a standing organ, and for that reason a specially convened conference with no other business may be preferable.

(c) Depending on the nature and importance of the subject-matter, it may be thought preferable to arrange for adoption in a high profile senior IGO organ, such as the UN General Assembly; alternatively, in certain circumstances a special conference, even if convened for only a few days, may be considered as the better launching platform.18

(b) Tasks of the adopting forum

The adopting forum must, at the end of its work, be able to approve the texts of one or more instruments to be then submitted for formal action by states. In effect, therefore, it must complete whatever the formulating organ has not, since the work of the two organs is complementary - indeed, in certain situations one organ can perform both sets of tasks. These include:

(i) Completion of the substantive negotiations - usually only on a few especially difficult points that the primary negotiating forum was not able to resolve;19

(ii) Perfection of the text, which may require the addition, at this stage, of further languages, and the use of a Drafting Committee;

(iii) Formulation of the final clauses, which determine inter alia what international entities can become parties to the proposed instrument and on what terms - requiring political decisions for which a technical formulating organ may not have been competent;

(iv) Consideration of potential reservations, to be regulated either by a clause in the instrument itself or in a Final Act (see section 5(b) below);

(v) The making of a formal record to enable all potential parties to announce and have preserved their interpretations of the instrument and politically important statements and reservations.

The final product of the adopting forum will, particularly if it is an ad hoc conference, consist of one or more instruments meant for action by states (which instruments may include several coordinated treaties or a principal treaty and subordinated protocols), of resolutions presenting the collective views of the adopting forum, and of a Final Act that pulls all of these together and supplies or refers to a sufficient record to put the entire exercise into context and to permit differing views to be formally preserved, whether for political or for eventual legal reasons.20

(c) Decision-talking

All the fore so far referred to, but particularly the adopting one, must take a series of decisions in advancing the legislative process and especially in completing each stage thereof. In principle all these decisions can be taken by votes, but in practice increasingly more of them are taken without that formality - which again is a feature in which the international differs from the municipal legislative process.

The gradual decrease in the amount of voting in international organs is by no means a casual phenomenon. The one-nation-one-vote rule is increasingly recognized as being entirely unrealistic, by pretending to equate in this single respect the influence of individual states that differ drastically in all others: population, size, military or economic power, and contribution to the international community. However, since on the one hand there was no immediate possibility of changing this rule (which has been incorporated into most international constitutional instruments and is even considered by many as constituting one of the basic principles of international organization law) while on the other the more powerful states are steadily more reluctant to subject themselves to this artificial type of "majority rule," it has become necessary in order to ensure the continued participation of these states in important political processes to avoid voting as much as possible. This avoidance is most frequently expressed as an attempt to attain "consensus" or "general agreement."

In the first instance it would appear that this development represents a giant step backwards, in effect to the League of Nations, whose principal organs operated on the unanimity principle and thus were rarely able to take effective action. Indeed, the need to obtain consensus is likely on the one hand to be time-consuming, for progress can be held up almost indefinitely by any participant, and on the other to tend to reduce the content of substantive decisions to no more than just the low highest common denominator21 on which general agreement can be reached.

There are, however, some mitigating factors. One is that the extended consideration that the search for consensus almost always entails frequently results in an improvement in the text under consideration, as ingenuity is applied to ways of overcoming real and perceived obstacles to particular solutions. The other is that in most instances the consensus requirement is not an absolute one; while an absolute requirement in effect allows any participant, great or small, to prevent a decision for any reason, whether important or trivial or merely capricious, the usual consensus requirement merely constitutes a political overlay on the fundamental decision-taking rules of the IGO concerned. This means that if a representative is generally perceived as acting unreasonably in preventing the taking of decisions and cannot be moved by other appeals, then a resort to voting under the standard rules can always be threatened and, if necessary, carried out.22

If resort is had to voting, then it is in effect useful to have in mind a dual count: one relating to the formal majority requirements, which in most IGO organs and IGO-convened conferences requires that substantive matters be approved by two-thirds of those casting yes or no votes - i.e. absentees and abstainers are disregarded; the other relates to the importance, for the issue at hand, of the dissenters or non-participants. Thus, even if adoption in a formal sense can be attained, but it is clear that implementation will be fatally crippled by the non-participation of important states, it is often regarded as sensible to suspend the process until a more generally satisfactory solution can be secured through continued negotiations - or, and this is particularly important in respect of environmental matters, until international or domestic pressures bring dissenting governments around.23

5. Bringing multilateral treaties into force

(a) General considerations

As already mentioned, the international legislative process differs from the municipal one in one important feature: once a municipal law is adopted by the legislature and, if necessary, approved by the executive and perhaps even vetted by the judiciary, then it automatically binds all who are subject to the government in question; in contrast, the adoption of an international treaty by an IGO or a conference normally has no immediate legal effect at all. What is required is that individual states take action in respect of the instrument -normally by having an authorized representative sign it and then having that signature ratified by appropriate governmental action, which may involve parliamentary approval - and also that enough states do so, sometimes within a specified time limit. Even then the treaty only enters into force for the states that have ratified, and subsequently for those that do so later.

Consequently, some approved treaties do not enter into force for many years, and even some that do may only be in force for a few states, thus rendering them ineffective. Indeed, the international legal landscape is littered with treaties not yet in force but still capable of becoming so,24 others as to which all hope has been abandoned,25 while still others lead a shadow existence for want of sufficient participation.26

Evidently an important determinant of the fate of any treaty is its specific provision concerning its entry into force. There is no general rule about what such a provision should be, though naturally it must reflect the special nature of the instrument concerned. If the substantive provisions are such that they can sensibly and beneficially apply if only a few states are parties, then this can be provided.27 In other situations, however, there is no point in bringing a particular regime into force without the participation of all or substantially all the states concerned, or of particular states, and in that event it should be so provided.28 There are also situations in which a regime might function even with uneven participation, but certain states consider themselves disadvantaged if they are bound if their neighbours or rivals are not.29 Finally, some treaties foresee large potential expenditures, for example for establishing an IGO, and until sufficient contributors agree to participate others will hesitate to enter lest they be required to finance the entire operation.30

In principle it should not be difficult to specify entry-into-force conditions to take into account the appropriate factors of the type listed above. In practice, however, not only may there be disagreement about the weights to be assigned to each factor, but certain ways of expressing conditions may be politically precluded. For example, even if it is generally understood that a number of potentially large contributors must become parties to a proposed treaty in order to make it effective, it is likely to be unacceptable to specify these by name or even to provide that entry into force requires that contributors responsible for a certain percentage of the potential contributions of all eligible states join; to articulate such conditions would in effect give a veto or an unduly large "vote" to certain states as to entry into force, which may be unpalatable to the large majority of states dedicated to the principle of equal voting powers. The actual formulae adopted may, in trying to achieve indirectly what may not be said directly, therefore create controversy or be difficult to implement.31

(b) Reservations and options

Domestic legislation generally applies uniformly throughout the jurisdiction in question, for any exceptions or variations have to be expressed in the legislative instrument itself. International treaties are different, because usually states can accept them with reservations that modify the obligations as between the reserving state and the other parties, in part depending on how the latter react to the reservation. Furthermore, reservations may create problems as to whether the reserving state is a party at all, if there is a question about the compatibility of a reservation with express or implied conditions of the treaty. Some treaties also include optional provisions (typically as to disputes settlement) offering choices to potential parties. The result is that there may be considerable variations in the respective obligations of the parties, and a most complicated network of non-uniform bilateral relations among them.

To a considerable extent these problems of uncertainty and inhomogeneity may be resolved through the careful drafting of the reservation provisions of the proposed treaty, which may range from absolutely prohibiting any reservations to permitting almost all. But even more important than careful drafting is the policy decision meant to be implemented through these provisions. In general, liberal reservation and option provisions will on the one hand facilitate the participation of states that have different views as to some substantive provisions of the treaty; at the same time they may permit variations in obligations that are damaging and possibly even fatal to the instrument. A restrictive provision on the other hand will help preserve the unity of the instrument but may reduce, again perhaps fatally, the number of participants. The optimal balance must be determined carefully for each instrument, in a highly political decision, that in a nuanced way takes into account both the substantive contents of the treaty and the attitudes of the potential parties.

(c) The domestic aspects of ratification

Although ratification itself is an international act, what precedes it is carried out subject to domestic law and domestic political and administrative considerations. While the representatives who participated on the international plane may have been impatient to achieve the formulation and adoption of a treaty, the domestic actors who must approve ratification (who in any event include executive officials, but may also involve those of the legislature) may have at best different priorities and at worst different substantive objectives. In particular, in democratic states a whole series of steps may have to be taken to ensure that the proposed treaty is both politically and legally acceptable, each such step constituting an obstacle to speedy, or even to any action.

That this constitutes a real problem is confirmed by any examination of the spotty record of ratifications of practically all multilateral treaties, very few of which can boast even one-half of the potential participation. If one tries to establish the reasons for this widespread abstention,32 one will generally find few objective reasons but rather the sheer administrative difficulty that most states have in coping with the decisions concerning the desirability of ratifying, possibly with reservations, hundreds of treaties that may be of interest to them or to their neighbours - with perhaps two to three dozen increasingly complex multilateral instruments added each year. This is true of states ranging from the developing, with perhaps simple procedures but minimal trained manpower, to the developed, with potentially adequate staffs but extremely complex devices for securing and coordinating the reactions of all potentially interested domestic organs and entities.

It has indeed been recognized that the volume of international legislation has become such that states are practically unable to keep up with the backlog and with new instruments.33

However, except for defeatist suggestions that the flow should be reduced -which would mean that international norms that are needed and as to which agreement can be reached would have to be delayed - little effective action has been taken or planned to assist states in coping. Only a few treaty-sponsoring lGOs provide technical assistance in translating treaty instruments into local languages, in preparing presentations to parliamentary and other bodies, and in drafting domestic legislation and regulations to facilitate implementation of treaty obligations. Instead, IGOs sometimes unintentionally add to the burden of domestic administrations by well-meaning demands for periodic progress reports on treaty actions and implementation - which may be designed to stimulate ratification but may also reduce the time of those available to take such action.

There is no doubt that in many fields, and this is particularly true of the environment, numerous states need assistance to enable them to participate in the international legislative process so that their interests be adequately represented, but in particular at the stage where the new international norms must be accepted and then be implemented by domestic legal processes.

One persistent problem that should be easy to solve - particularly in the age of automated information systems - is the making of up-to-date information about the status of multilateral treaties {e.g., list of signatories, ratifications and other corresponding actions, withdrawals, reservations and objections thereto) readily and currently available. While good annual reports are available on those treaties of which the UN Secretary-General is the depositary,34 this is less true of treaties deposited with other entities, and in particular with states - such as all the regional-seas conventions and their protocols.35

6. The process of keeping international legislation up to date

In today's fast-moving world, international law, just as its domestic counterpart, must be kept up to date- and that sometimes at almost breakneck speed, as witness the developments concerning the ozone protection regime. The following are certain devices for accomplishing this in an effective manner.

(a) Simplified treaty-adopting and -amending practices

Traditionally, treaty law has been adjusted from time to time by additional treaty actions, either by amending existing instruments, by creating others to complement older texts, or by entirely superseding those that cannot easily be adapted to serve modern purposes. Generally, all these measures technically require full-scale treaty initiating, -formulating, -adopting, and entry-into-force procedures, with all the work and complications described above. Furthermore, because each such amendment or new treaty is subject to the same domestic treaty-acceptance procedures as the original instrument, and these procedures are accomplished with uneven speed and efficiency by different states, the pattern of ratifications becomes yet more complicated, creating an entirely uneven and ultimately unintelligible pattern of obligations among states that are parties to the same agreement but with different amendments, or that participate in different supplementary or superseding agreements.36 Instead of progressing towards a generally applicable international regime, the volume of international law may be growing at the cost of uniformity of coverage.

It is for this reason that a number of devices have been developed for simplifying the process of updating treaties, devices that concern one or both of the major phases of the legislative process described above. These devices include: the use of framework or umbrella conventions that merely state general obligations and establish the machinery for the further norm-formulating devices described under this heading;37 the supplementation of such conventions and by individual protocols establishing particular substantive obligations in implementation of the general objectives of the convention;38 the use of easily amendable technical annexes.39

In respect of all these devices, the international phase of the treaty-making process - initiation, formulation, and adoption - can be simplified and accelerated by assigning them to specially designated, dedicated expert or representative organs that either meet periodically or that are easy to convene as the need for further legislative action arises, and that are serviced by a specialized secretariat thoroughly familiar with the regime in question as well as with other related regimes that must be taken into account.40 Thus the usual start-up time for these phases of the international legislative process can be largely eliminated, as well as much routine reporting and the repeated transfer of proposed texts among expert, restricted representative and plenary organs. Consequently texts ready for adoption by the states participating in the regime can be prepared in substantially shorter times - subject, of course, to the need to negotiate generally acceptable terms.

Another important saving in time and effort can, however, be achieved in respect of the second, domestic, phase of the process. This may be done by providing in the basic convention that all or certain of these new instruments do not require ratification but enter into force in some simplified way:

(a) It may be provided that supplementary instruments require only signatures in order to bind states.41 While of course the constitutional requirements of certain of these parties will require that such signatures only be affixed after the completion of domestic procedures that correspond to those required for ratification, many other states will be able to take advantage of such provisions to achieve instant participation.

(b) It may be provided that once an amendment enters into force for a sufficient number of states, it automatically enters into force for all;42 this short-circuiting of the ratification process by those states that do not act early may, however, have to be purchased at the cost of providing in the basic treaty that a state on which an amendment is thus imposed can denounce the treaty in some simplified manner.43

(c) It may be provided that certain amendments, especially to technical annexes, do not require any signatures and ratifications at all, but automatically enter into force for all parties to the basic treaty unless a sufficient number of them object within a stated time limit from the adoption of the amendment, or that such amendment enters into force for all treaty parties except those that object within a specified time period.44

Evidently, all such devices for somehow taking out of the hand of states the need for each of them to act positively on any treaty instrument before it enters into force for it will be accepted only most reluctantly by many of them and generally only if restricted to basically subordinated and technical matters; as already pointed out, it is usually necessary to preserve some method for the state to opt out simply, either from the new legislative feature or, perhaps, from the entire regime.45 Although in a sense these are instances of an IGO organ "legislating" directly for states, the legal obligation of each state ultimately derives from its consent to the underlying treaty in which the particular empowerment of the IGO is set out, and consequently one might refer to a "derivative treaty obligation."

(b) The establishment of new intergovernmental organizations and organs

It has already been pointed out that the international legislative process is one that takes place largely, indeed more and more almost exclusively, under the auspices of competent IGOs. It is also true that more and more, the new international agreements that are formulated and adopted either provide new tasks for existing organizations (usually the one sponsoring the agreement) or they provide for the creation of new organizations through which the states' parties can collectively carry out some of the objectives of the new instrument or be assisted in doing so individually, but most particularly to help develop the new law even further.

Under the previous heading various devices were discussed for accelerating the process of formulating and adopting supplementary or amending treaty provisions in respect of a basic treaty, which may indeed be merely a framework convention. Since these devices for the most part function optimally if implemented by specialized and dedicated expert, representative and secretariat organs, this can best be accomplished by creating a special international organization for that purpose - but naturally only if such a step can also be justified by the other tasks to be assigned to the new IGO.

In the event that there is no call for creating a full-blown new IGO, another device is merely to establish the necessary expert and representative organs, leaving these to be serviced by the secretariat of some existing, willing, and competent IGO - which will usually be the one under whose auspices the treaty in question was formulated.46

C. The creation of customary law

So far this chapter has dealt almost exclusively with international legislation through the multilateral treaty-making process, which indeed is the principal method of manufacturing new international law.

However, as already mentioned in the introduction, customary law is the other main source of rights and obligations under international law and therefore cannot be entirely neglected in the present context. This is especially so because customary, unlike conventional, law generally applies to all states (except those that have always and consistently excluded themselves from the practice in question) and not only to the parties to a particular instrument.

At first sight, it seems oxymoronic to suggest that customary law which is derived inductively from the practice of states insofar as such practice is motivated by a sense of legal obligation - can be "legislated" in the usual sense of that term. And, of course there is no straightforward way of doing so, comparable to the treaty route, which though long and tortuous, can be seen as proceeding step by step from the proposal to initiate to the entry into force of a multilateral law-making treaty.

Nevertheless, customary law can be somewhat shaped and directed, because the practices of states can be consciously affected by various international actions, particularly by significant IGOs. Many of the hundreds of resolutions that are adopted each year by international organs are addressed to states and recommend that they act in particular ways and may even suggest that they are legally obliged to do so - obviously in the hope, if not the firm expectation, that some or many will conform their conduct as a result of these importunings.

Although most such recommendations are expressed in ordinary resolutions and deal with issues of lesser or transitory moment, some are deliberately framed as solemn or universal declarations and adopted with ceremony by a senior organ, such as the United Nations General Assembly. The expectation that states will make a real effort to conform their conduct to such texts appears from their preambles or from the adopting resolutions, and sometimes also from later inquiries, usually solicited by the adopting organ and addressed to the executive head of the IGO, as to how states have actually responded to the declaration.

The formulation of such a declaration is often subject to essentially the same procedures as described in respect of multilateral treaties, involving consideration by expert and representative organs, consultations with governments and with NGOs, and adoption in a plenary organ by a high majority or by consensus.47 Indeed sometimes when this process is started it may not be clear whether the final product will be a declaration or a treaty, and the choice between these two may only be made at a relatively advanced stage of the process that is, when it can be determined if at that stage a sufficient number of states is prepared to enter into a binding treaty. But, whether or not a declaration is originally adopted only as a second-best solution, it may then serve as the forerunner of a later treaty, in that the groundwork is laid and the general legal principle is established by the former instrument, while the later treaty covers the same lines, though in greater detail and with more precision.

Solemn legislative declarations48 can thus contribute to the international legislative process in two entirely separate ways. They may be precursive to and guide a later treaty-making process, in which reference is often made to the general legal principle already stated in the declarations.49 And they are also and perhaps primarily designed to influence the conduct of states directly -and to the extent that they are successful in doing so international customary law may be created. In effect they may catalyse the creation of customary law by expressing in normative terms certain principles whose general acceptance is already in the air (for otherwise their adoption by an IGO organ would not receive the necessary support) and thereby making it easier and more likely for states to conform their conduct to them.

There is yet another and in a sense more circuitous way in which the creation of new customary law can be furthered through deliberate international action: i.e. through the adoption of multilateral lawmaking treaties. Though of course these instruments primarily create rights and obligations only for their parties and thereby influence their conduct, to the extent that such conduct then becomes the international standard, even states that for some reason have not become parties to the treaty may feel obliged to conform their conduct to some or all of the treaty provisions.50 Thus the process of creating new law-making treaties may, as a by-product, also facilitate the creation of new customary law.

This having been said, it must also be admitted that so far there are few clear instances of customary environmental legal principles. This is largely so because environmental law itself is of relatively recent vintage, and thus there has been little time for consistent state practice to develop, either in response to solemn declarations by IGOs or through the general acceptance of norms set out in multilateral treaties.51 However, the processes described above have in other areas, and in particular that of human rights, been notably productive in the creation of customary law, and there is therefore every reason to expect that the same will apply in respect of environmental principles.

D. The creation of soft law

Both conventional and customary rules are binding, or "hard" law in a sense, the only type of international law that properly deserves that designation.52 However, in recent times another type of international law has more and more come to be recognized, that is non binding, or "soft," law. What that term describes are numerous norms that are in effect observed by states even though, strictly speaking, they are not obliged to do so; however, the fact that they are generally observed, and are expected to be so, gives them a predictive value similar to those norms expressed in hard law - which of course is also not always observed.

Generally a norm may be "soft" when it either does not constitute part of a binding regime, whether of conventional or customary law, or because, even though it is contained in a binding instrument' it is not expressed in obligatory language. In environmental regimes, examples of both types of soft law abound, and most are ones created by IGOs.

As already pointed out, many important environmental principles are merely set out in resolutions or other decisions of IGO organs that, with few exceptions, are not binding per se. This is true, for example, of the Principles set out in the Stockholm Declaration and of the paragraphs of the World Charter for Nature, except insofar as these may either merely restate pre-existing rules of customary international law53 or may have become such by the mechanisms discussed in the previous section.54 Possibly even more significant because more numerous and practical are the many "guidelines," "principles," or recommended practices adopted by or under the authority of IGO organs, such as the UNEP Governing Council55 or other corresponding bodies, and largely followed by states.

With respect to the second type of soft law described above, many multilateral treaties negotiated under the aegis of lGOs contain clauses that are not intended to create firm obligations - evidently because the prospective parties were not, at least at the time, willing to bind themselves as to these points. This is particularly true of the framework or umbrella agreements, the substantive provisions of which tend to be merely hortatory or programmatic,56 while the ultimately effective dispositions are the procedural ones pursuant to which subsidiary instruments with binding substantive obligations are formulated and adopted.

Why, if soft law norms are not binding, are they in fact observed? There are indeed several reasons. One is that if a particular norm is negotiated within an IGO and then included either in a non-binding declaration or in a non-obligatory form in a treaty, the states concerned are generally desirous or at least content to observe it - for otherwise they would not have adopted it at all; thus the very fact that the norm has been articulated, usually by consensus, suggests that even if at that stage governments were not willing to bind themselves (perhaps because they first wished to observe the consequences of actual implementation), in practice they would normally follow it. Another reason for observance might be that the IGO concerned through some mechanism or other follows up on implementation of the norms it has promulgated; such follow-up may consist of no more than periodic reminders of the importance of faithful observance,57 to arrangements for receiving reports on compliance, which the IGO may then discuss in an expert or a representative organ - i.e. the "mobilization of shame." Finally, in some instances certain states particularly interested in the observance of a non-binding norm may unilaterally exert effective pressure for compliance by other states.58

In evaluating the importance of soft law, account must also be taken of the various ways in which it may, often quite rapidly, be hardened. One way of course is the incorporation of an initially non-binding norm into a binding treaty - which, for example, is the normal and expected course when a general framework convention is supplemented by binding protocols. Another is the creation of customary law when states adopt as their practice, acting out of a combination of a sense of legal obligation and in response to some of the pressures described above, rules that originally were merely expressed in solemn (but nevertheless non-binding) declarations.

All in all, in considering how IGOs actually influence the action of states in the environmental field, it is important to take account of the large number of at least initially non-binding norms that are formulated and promulgated in various forms by these organizations.

E. Concluding remarks

The international legislative process is productive and capable of expressing as international law whatever rules and regimes the world or the appropriate special or regional community can agree on. Such law is most conveniently set out in the form of multilateral treaties applicable to the states that become parties, but may also take the form of less precise but generally applicable customary law stimulated and crystallized by the systematic adoption of formal declarations and even as the by-product of widely accepted conventional rules: finally, certain norms may, at least initially, take the form of non-binding but still generally observed soft law.

The quality of the international environmental rules thus established depends in the first instance on the expertise of the specialized representative, expert, and secretariat organs charged with carrying out or assisting these legislative tasks, which for the most part are likely to be the organs of a number of existing IGOs active in this field. Such organs are already quite numerous in the UN system and in some of the major regional agencies, though it may be useful to establish some even more technically specialized organizations and organs, for example such as might be required to deal with the threats of global climatic changes or to protect certain international commons from pollution. The establishment of such organizations and organs of course itself requires and is also part of the international legislative process.

The great weakness of that process, i.e. the considerable unevenness in the applicability of even carefully formulated conventional law, due in part to reservations and options but largely to the quantitative and technical incapability of many states to deal with the increasing flow of international legislation, should be recognized and countered by effective measures to assist states, particularly the developing ones, in becoming parties to and in absorbing into their domestic legal systems the considerable body of existing conventional environmental law, and then to perform the same service in respect of later additions to the canon.

Because of the great expertise, energy, and sometimes the material resources of national and international environmental NGOs, these should be encouraged and permitted to participate as far as possible in all aspects of the relevant international legislative process: the studies required to decide whether to initiate the process in respect of a particular problem; the formulation of instruments designed to deal with that problem; the adoption of such instruments by competent international bodies; and finally the rapid ratification of such instruments by as many as possible of the potential parties thereto. Such encouragement will also make the process more responsive than most international actions to the aspirations and concerns of the world's people.

It has been pointed out that the international legislative process is anything but too rigid; indeed, its formlessness and flexibility may be disturbing to some who, used to well-established but narrowly constrained municipal procedures, consider anything so variegated as multilateral treaty-making to constitute not really a "process" but at best unstructured diplomatic interactions that may fortuitously result in some useful codification or progressive development of international law but cannot really be relied on to do so. Actually, however, while an overall survey of the process may, at least at first sight, be confusing because of its manifold manifestations, certain specialized law-making units have over the years evolved rather precise and predictable legislative methodologies, which those who are experienced can rely on and use. However, and generally speaking this should be deemed an advantage, with the possible exception of a few organizations and fore, the multilateral treaty-making process remains flexible enough so that it can be adapted to the needs of particular situations and proposed instruments. Moreover, being flexible, it can more easily adapt as improvements are suggested, either by the imagination of some of the participants or arising out of institutional experience or news of the experience of other similar bodies. In short, international institutions are basically young and can and do learn,59 and that learning generally - unless occasionally false lessons are absorbed results in improving the operations of these organizations.

There is another, perhaps more surprising, observation to make about international law-making. One might believe that in a process largely carried out by the instructed and to a considerable extent freely replaceable governmental representatives, there would not be much room for individual initiative or merit, or cause to assign individual credit - or blame - for the success or failure of a particular legislative enterprise. Such a conclusion, however, would be quite wrong. The international legislature ultimately consists of people who interact, often for many years, sometimes in respect of many political enterprises and sometimes predominantly in respect of one. This interaction breeds loyalties both to persons and more often to causes that may transcend a particular representative's instructions and especially the vaguely expressed directives that emanate from most governments in respect of international political enterprises far from home.60 There are therefore any number of examples of how a particular individual, or sometimes several, will decisively and essentially personally influence the formulation of a particular treaty. These persons more often than not are representatives of minor states (the major ones tending to control their delegates more closely) who through their merits (usually including a dose of longevity) capture key positions in developing some instrument: chair of an influential expert group, of a drafting committee, or of a more prominent body such as the formulating organ; indeed, often they work their way up, tending to a particular draft instrument in different and sometimes ever-more prominent roles over the years. Alternatively such persons may occupy leading positions (e.g. executive head) in the competent secretariat or unit. In other instances, strong support has come from rank outsiders, who are persistent and skilful in lobbying or pressuring governments or their representatives in some self-adopted cause on behalf of a public-spirited body. In any event, an instrument or project that attracts the support of one or more talented and dedicated legislative heroes, preferably from nominally opposite camps, is much more likely to succeed than can be predicted by a sober political analysis of the supposed interests of power blocks.

Annex

Chronology of principal development in international legislation concerning the atmosphere

A. Protection against transboundary air pollution1

1969

Eric Oden, studies on acidification of Scandinavian lakes by long-range air pollution

Jun. 1972

Swedish case-study on "Air Pollution Across National Boundaries: Impact on the Environment of Sulfur in Air and Precipitation" (submitted to the Stockholm Conference)

18 Jun. 1974

OECD Council Recommendation on Guidelines for Action to Reduce Emissions of Sulphur Oxides and Particulate Matters from Fuel Combustion in Stationary Sources

14 Nov. 1974

OECD Council Recommendation on Measures Required for Further Air Pollution Control

1 Aug. 1975

Helsinki Final Act of the Conference on Security and Co-operation in Europe (calling, inter alia, for promoting international law in respect of long-range air pollution)

1977

OECD study on lang-range transboundary air pollution in Europe

1978

Establishment of the Co-operative Programme for Monitoring and Evaluation of the Long Range Transmission of Air Pollutants in Europe (EMEP), by ECE in co-operation with WMO and UNEP

1978

Negotiation of a long-range transboundary air pollution convention within the framework of the Senior Advisers to ECE Governments on Environmental Problems

13 Nov. 1979

CONVENTION ON LONG-RANGE TRANSBOUNDARY AIR POLLUTION, GENEVA

Jul. 1982

Ministerial Conference on Acidification, Stockholm

28 Sep. 1984

PROTOCOL ON LONG-TERM FINANCING OF THE COOPERATTVE PROGRAMME FOR MONITORING AND EVALUATION OF THE LONG-RANGE TRANSMISSION OF AIR POLLUTANTS TN EUROPE, GENEVA

21 Mar. 1984

Ministerial Conference on Acid Rain, Ottawa

27 Jun. 1984

Multilateral Conference on Environment, Munich

8 Jul. 1985

PROTOCOL ON THE REDUCTION OF SULPHUR EMISSIONS OR THEIR TRANSBOUNDARY FLUXES BY AT LEAST 30 PER CENT, HELSINKI

Oct. 1985-

Negotiation of a Protocol on Nitrogen Oxides

Aug. 1988


31 Oct. 1988

PROTOCOL CONCERNING THE CONTROL OF EMISSIONS OF NITROGEN OXIDES OR THEIR TRANSBOUNDARY FLUXES, SOFIA

31 Oct. 1988

Declaration on 30 Per Cent Reduction of Nitrogen Oxide Emissions, Sofia

24 Nov. 1988

EEC Directive on the Limitation of Emissions ofCertain Pollutants in the Air from Large Combustion Plants

Feb. 1989-

Negotiation of a Protocol on Volatile Organic

Aug. 1991

Compounds

8 Nov. 1991

PROTOCOL CONCERNING THE CONTROL OF EMISSIONS OF VOLATILE ORGANIC COMPOUNDS OR THEIR TRANSBOUNDARY FLUXES, GENEVA

1. Code:

Scientific Developments and Meetings Not Part of International Legislative Process

Legal and Political Meetings and Statements Not Part of Non-Regional International Legislative Process

Meetings Relating to the International Legislative Process
LEGAL INSTRUMENTS ADOPTED

B. Protection of the ozone layer

1973-1974

Richard Stolarski and Ralph Cicerone, studies of release of chlorine in the atmosphere

1974

Mario Molina and Sherwood Rowland, studies of CFCs in the atmosphere and stratosphere

8 Mar. 1977

UNEP's World Plan of Action on the Ozone Layer, Washington

Apr. 1980

UNEP Governing Council resolution on restriction of CFC usage

May 1981

UNEP Governing Council resolution initiating negotiations towards an ozone agreement

1981

Meeting of legal experts convened by UNEP, Montevideo

Jan. 1982

First session of Ad Hoc Working Group of Legal and Technical Experts for the Preparation of a Global Framework Convention for the Protection of the Ozone Layer, convened by UNEP, Stockholm (NB: There were seven sessions, until 1985)

1983

Establishment of the "Toronto Group"

22 Mar. 1985

VIENNA CONVENTION ON THE PROTECTION OF THE OZONE LAYER

1986

WMO/UNEP Report on Atmospheric Ozone

May 1986

Workshop on CFC production and consumption trends, convened by EEC and UNEP, Rome

Sep. 1986

Workshop on alternative regulatory strategies on protection of ozone, convened by USA and UNEP, Leesburg (USA)

Dec. 1986

First negotiating session on a protocol to the Vienna Convention, convened by UNEP, Geneva

Feb. 1987

Second negotiating session on a protocol to the Vienna Convention, convened by UNEP, Vienna

Apr. 1987

Third negotiating session on a protocol to the Vienna Convention, convened by UNEP, Geneva

Jun. 1987

Meeting of heads of key delegations, convened by UNEP, Brussels

8-13 Sep. 1987

Preliminary meetings preceding the Montreal Conference, convened by UNEP, Montreal

16 Sep. 1987

MONTREAL PROTOCOL ON SUBSTANCES THAT DEPLETE THE OZONE LAYER

Apr.- May 1989

First Meeting of the Parties to the Vienna Convention and the Montreal Protocol, Helsinki

27-29 Jun. 1990

Second Meeting of the Parties to the Vienna Convention and the Montreal Protocol, London (adoption of ADJUSTMENTS AND AMENDMENTS TO MONTREAL PROTOCOL)

Jun. 1991

Third Meeting of the Parties to the Vienna Convention and the Montreal Protocol, Nairobi (also Executive Committee of Interim Multilateral Fund)

Oct. 1992

Fourth Meeting of the Parties to the Vienna Convention and the Montreal Protocol, Copenhagen

C. Protection of the climate

12-23 Feb. 1979

First World Climate Conference, convened by WMO

9-15 Oct. 1985

International Conference on the Assessment of the Role of Carbon Dioxide and Other Green-house Gases in Climate Variations and Associated Impacts, Villach (Austria), sponsored by UNEP, WMO, and ICSU

28 Sep.- 2 Oct. 1986

Conference on Developing Policies for Responding to Future Climatic Change, Villach (Austria)

1986

Establishment of the UN system inter-agency Advisory Group on Greenhouse Gases (AGGE)

Nov. 1987

Policies Issues Workshop on Developing Policies for Responding to Climatic Change, Bellagio (Italy)

27-30 Jun. 1988

Conference on the Changing Atmosphere: Implications for Global Security, convened by the Canadian Department of External Affairs, Toronto

Nov. 1988

First session of the Intergovernmental Panel on Climate Change (IPCC), Geneva, established by UNEP and WMO

6 Dec. 1988

UNGA Resolution: Protection of Global Climate for Present and Future Generations of Mankind (A/RES/43/53)

20-22 Feb. 1989

Meeting of Legal and Policy Experts on the Changing Atmosphere, convened by the Canadian Department of External Affairs, Ottawa

11 Mar. 1989

Declaration of the Hague

28-30 Jun. 1989

Second session of IPCC, Nairobi

7 Nov. 1989

Noordwijk Declaration of the Ministerial Conference on Atmospheric Pollution and Climate Change

1990

Third session of IPCC

27-31 Aug. 1990

Fourth session of IPCC, Sundsvall (Sweden)

29 Oct.- 7 Nov. 1990

Second World Climate Conference, convened by WMO, Geneva, and Ministerial Declaration

21 Dec. 1990

Establishment of Intergovernmental Negotiating Committee for a Framework Convention on Climate Change (A/RES/45/212)

4-14 Feb. 1991

First session of the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change, Washington

13-15 Mar. 1991

Fifth session of IPCC, Geneva

19-28 Jun. 1991

Second session of the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change

9-20 Sep. 1991

Third session of the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change

29-31 Oct. 1991

Sixth session of IPCC

9-20 Dec. 1991

Fourth session of the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change

10-12 Feb. 1992

Seventh session of IPCC, Geneva

18-28 Feb. 1992

Fifth session of the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change, New York

Apr. 1992

Informal consultations among principal delegations, Paris

30 Apr.- 8 May 1992

Sixth session of the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change

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).