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Birnie, Boyle, and Redgwell's International Law and the Environment

Birnie, Boyle, and Redgwell's International Law and the Environment (4th edn)

Alan Boyle and Catherine Redgwell
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date: 26 June 2022

p. 452. International Governance and the Formulation of Environmental Law and Policyfree

p. 452. International Governance and the Formulation of Environmental Law and Policyfree

  • Alan Boyle
  •  and Catherine Redgwell

Abstract

This chapter examines the institutions of global governance responsible for formulating and implementing international environmental policy and law. It starts by defining global governance as a continuing process via which conflicting or diverse interests may be accommodated. This provides the environment where cooperative action may be taken. Global governance includes formal institutions and regimes empowered to enforce compliance, as well as informal arrangements. In this situation, there is no single model or form of global governance, nor is there a single structure or set of structures. Global governance, therefor, is a broad, dynamic, complex, process of interactive decision-making. The chapter also looks at the differences in international environmental policy and law today compared to when this book first published twenty-five years previously.

1 Introduction

In this chapter* we consider the institutions of global governance responsible for formulating and implementing international environmental policy and law. Global governance has been defined as ‘a continuing process through which conflicting or diverse interests may be accommodated and cooperative action may be taken. It includes formal institutions and regimes empowered to enforce compliance, as well as informal arrangements. …here is no single model or form of global governance, nor is there a single structure or set of structures. It is a broad, dynamic, complex, process of interactive decision-making’.1 Although their powers vary widely, the UN, its specialized p. 46agencies, and other international bodies have become important institutions of global and regional environmental governance.

Used in this sense, the term ‘governance’ when applied to the UN and its agencies implies rather less than global government, a task for which no international organization is equipped,2 but more than just the power to determine policy or initiate the process of international law-making. At the very least it captures the idea of a community of states with responsibility for addressing common problems through a variety of political processes which are inclusive in character, and which to some degree ‘embody a limited sense of a collective interest, distinct in specific cases from the particular interests of individual states’.3 Such bodies may potentially be universal in membership, like the UN or the WTO, or regional, like the Council of Europe or the Organization of American States (‘OAS’), or have limited membership based on common interests, as in the Organisation for Economic Co-operation and Development (‘OECD’). They may operate on the basis of one- member-one-vote, as in the UN General Assembly or the WTO, or votes may be weighted on some other basis, as in the World Bank, controlled by major donor states, or the UN Security Council, dominated by the five permanent members, or the Council of the IMO, where the major flag states enjoy a privileged position.

The UN and other organizations considered in this chapter are only part of this process of international environmental governance. Equally important is the extensive network of conferences of the parties, commissions and supervisory bodies established by environmental treaties. These autonomous treaty bodies have been likened to a species of international organization, whose main role is to promote implementation of, and compliance with, specific regulatory regimes.4 They have also contributed to the evolution of what has been termed ‘global administrative law’.5 In contrast, the most valuable contribution made by the UN and related international organizations considered in this chapter has been their ability to determine the international policy-making agenda, and to initiate or facilitate many of the most important law-making developments. Nevertheless, there is, as we shall see, a considerable overlap between conventional international organizations and autonomous treaty bodies, and too sharp a distinction between their respective law-making and implementation roles would be misleading. In reality, both types of institution perform both functions, and the difference between them is largely one of degree. Thus, some intergovernmental p. 47organizations, such as the IMO, also offer a means of promoting implementation and compliance with regulatory treaties and other international standards.6 The range and diversity of organizations and institutions involved in some aspect of global environmental governance point to one obvious problem: the difficulty of ensuring coordination and consistency within such a diffuse and multi-layered system.7 This is an issue to which we return later.

Intergovernmental organizations such as the UN, the IMO, the FAO8 and the IAEA9, among others, have provided the principal fora in which much of the inter-state cooperation necessary for developing international environmental policy and regulatory regimes has been realized. UN conferences, and especially UNCHE and UNCED’), have set agendas for the environment-related work of these bodies. Inter-governmental and non-governmental organizations have also been influential across a broad spectrum of environmental policy and law-making; they have become an important part of the law-making process, even if they are not in themselves the process.10 The most notable are UNEP11 and the International Union for the Conservation of Nature (‘IUCN’).12 International and non-governmental organizations also provide a reservoir of legal and technical expertise and diplomatic machinery not always possessed by individual governments. For many developing states, these organizations thus offer an important source of ‘capacity-building’ and personnel training, a role which UNCED attributed to the UN Development Programme (‘UNDP’), the World Bank, and regional development banks.13

In this context the most obvious and indispensable role of the UN and other bodies is to provide a permanent forum where states and other participants can engage in dialogue and negotiations, facilitating the compromises necessary for law-making by states at very different stages of economic and social development. Brunnée and Toope argue that periodic meetings of the parties to multilateral treaties—and by extension the argument must also apply to intergovernmental organizations and law-making conferences such as the third UN Conference on the Law of the Sea—constitute ‘ongoing, interactional processes,’ and that ‘It is this broader process and not the formal act of consent that infuses the legal norms generated within [a multilateral agreement] with the ability to influence state conduct.’14 Their central point is that a law-making p. 48process perceived as legitimate by states and other relevant actors is more likely to be an effective process. An illegitimate process will either fail to make law at all or will undermine the likelihood of compliance with adopted rules or standards. Moreover, if law-making is the product of interactive processes, then the question who participates in these processes assumes added importance.15

It is important to recall, however, that although many intergovernmental organizations will have a legal personality separate from their member states,16 they have few, if any, powers of independent action, and progress in the development of policy and law depends entirely on the willingness of member states to adopt and implement whatever is proposed. What emerges from any international organization will inevitably reflect the interests and concerns of its members, as well as the voting structure within each organization, and may not always coincide with the priorities of the international community of states as a whole, still less with those of environmental NGOs or scientific experts. The IAEA and IMO a both illustrate the influence wielded by states representing important industries.17 International organizations are not immune from the phenomenon of ‘agency capture’ well documented by administrative lawyers.18

The significance of viewing any of these bodies as processes of international governance is twofold. First, it suggests an understanding of international society as ‘something more than a crucible for the resolution of competitive state interests, with law the mere handmaiden of power’.19 Whether this is true of international environmental relations will have to be judged on the evidence of subsequent chapters, but it is certainly true that major environmental treaties, like the 1992 CBD and the 1992 Climate Change Convention, or the 1982 UNCLOS, cannot easily be explained by conventional realist conceptions of an international society dominated by great powers. In this respect the role played by international organizations in institutionalizing cooperation on the basis of a community of interest has been crucial.

Secondly, governance implies a more cosmopolitan notion of international society than one composed solely of states. Most notions of governance thus envisage participation by other entities, including NGOs,, industry and business, and civil society in general.20 Here too, international organizations have been notably progressive, especially in environmental affairs. One of the most striking features of modern international law-making is the interaction of states, inter-governmental organizations (‘IGOs’) and NGOs in what have been described as ‘epistemic communities’ or ‘transnational p. 49networks’ of officials, experts and interest groups whose quasi-autonomous character allows them to constitute a broader international community than the states that nominally make the decisions.21 This perspective helps explain why some states—or their representatives—appear to have more (or less) influence on outcomes than the relative size or importance of that state might suggest. But studying the list of observers at meetings of parties to environmental treaties is also instructive. To take just one example, the sixth COP of the 1989 Basel Convention was attended by observers from the Association of Plastics Manufacturers, the International Council on Mining and Metals, and no fewer than nine electronics or mobile phone companies, including Nokia, Sony, LG Electronics and Motorola.22 What was on the agenda? Negotiation of an end-of-life management agreement with the manufacturers of mobile phones. There were also two environmental NGOs present—World Wide Fund for Nature (‘WWF’) and the Basel Action Network. Knowing who participates in such meetings is essential to an understanding of the politics of international law-making. In some treaty bodies, environmental NGOs and industry observers are more active and influential than many of the states that participate as full members.23

Two objections are commonly made to the involvement of intergovernmental bodies in international governance. First, they may be seen as fundamentally undemocratic in taking power away from elected governments and national legislatures, locating it instead in unaccountable institutions where decisions are taken by national representatives insulated from public scrutiny, and promoting an elitist vision of globalization remote from the concerns of ordinary people.24 Such a ‘democratic deficit’ is only partially mitigated by greater transparency and the growing involvement of NGOs and business in the work of some intergovernmental bodies. From this perspective conceptions of a more cosmopolitan international order may appear essentially false. Secondly, without real law-making authority or, in most cases, the ability to take binding decisions by majority vote, they lack the necessary power to take effective action for the common good and to impose their collective will on individual states. From this perspective the problems international organizations encounter in addressing environmental issues may be seen as evidence of the continuing power of national sovereignty or of a need to transcend the outdated structures of an international society dominated by states. Although both characterizations are widely prevalent, they are also mutually incompatible, and in any case considerably over-simplified.25 p. 50Nevertheless, they do capture the dilemma of how to address the evident need for more effective means of promoting international cooperation to tackle global problems within a politically legitimate and publicly accountable process.26 Despite these concerns, in an environmental context it will be seen in later chapters that the role and form of cooperation through international organizations has evolved well beyond its rudimentary origins and has at least to some extent been responsive to the needs of contemporary international society.

2 The Development of International Environmental Policy

2(1) 1972 UN Conference on the Human Environment

It was pressure from NGOs, especially in the US, that led to the convening of the first intergovernmental conference devoted to environmental issues, the 1972 Stockholm Conference on the Human Environment.27 A preliminary meeting of experts drew particular attention to the developmental aspects of the problem.28 This report encouraged many developing countries to participate in the Conference on the understanding that any environmentally protective measures resulting from it would not be used as the medium for inhibiting their economic development.

The Conference resulted in four major initiatives which together provided the driving force for developments in UN environmental policy during the next decade and beyond.29 The first was the adoption of the 1972 Stockholm Declaration, intended to ‘inspire and guide the peoples of the world in the preservation and enhancement of the human environment’.30 The second was the establishment of UNEP, later rechristened ‘UN Environment’.31 The third was the adoption of the Stockholm Action Plan for the development of environmental policy, to be administered by UNEP, and finally the institution, by voluntary contributions, of an Environment Fund.

p. 51The human rights perspective with which the 1972 Stockholm Declaration opens was innovative at the time; although not repeated in the same terms in the 1992 Rio Declaration, developments in human rights law since then reflect the influence of Stockholm.32 The responsibility for future generations also articulated in Principle 1 was not entirely novel, and has subsequently become an important element of the 1992 Rio Declaration and the concept of sustainable development.33 The key normative provision in the 1972 Stockholm Declaration, Principle 21, was drawn from existing treaty and customary law. While recognizing both sovereignty and developmental concerns, it makes clear that transboundary environmental harm must be controlled. Principle 21 was repeated almost verbatim in the 1992 Rio Declaration and has been regarded as customary international law by the ILC and ICJ.34

Other provisions of the 1972 Stockholm Declaration were more policy-oriented, but they point to later normative developments. The term ‘sustainable development’ was not used, but Principles 2 to 5 proclaimed that the Earth’s natural resources ‘must be safeguarded for the benefit of present and future generations’, ‘that its capacity to produce vital renewable resources must be maintained and, if practical, restored or improved’, and that humans have a responsibility to ‘safeguard and wisely manage the heritage of wildlife and its habitat’. Principles 6 and 7 relate to pollution control, calling for cessation of the discharge of toxic and other substances in quantities that exceed of the capacity of the environment to render them harmless, to ensure that no irreversible damage is inflicted on ecosystems, and to prevent pollution of the sea. Stockholm thus initiated a process of international law-making on pollution control which is still evolving.35 The reference to preservation of ecosystems was considered a significant step at the time, long advocated by NGOs, but subsequently included in the 1980 Convention for the Conservation on Antarctic Marine Living Resources, the 1982 UNCLOS, the 1992 CBD, and many later treaties.36 In deference to the economic concerns of developing countries, Principles 8 to 11 recognize inter alia that economic and social development is essential, and that environmental policies should ‘enhance and not adversely affect the present or future development potential of developing countries.’ Principles 12 to 17 set out policies on environmental and resource management that are in many respects repeated twenty years later in the 1992 Rio Declaration, as well as in a series of multilateral environmental agreements. These include the need for capacity-building and financial assistance for developing states (Principle 12); integration of development planning and environmental protection (Principles 13 & 14); adoption of policies on urbanization and population planning (Principles 15 & 16),37 and the creation of national institutions with responsibility for ‘enhancing environmental quality.’ Finally, Principle 22 requires states to further develop international p. 52law on liability and compensation for pollution and other forms of environmental damage to areas beyond their jurisdiction.38

2(2) 1992 UN Conference on Environment and Development

(a) The negotiations

Following Stockholm, IUCN began to promote sustainable use of resources,39 but it was not until the WCED published the ‘Brundtland Report’ calling for a new approach, articulated as ‘sustainable development’, that a turning point in UN policy was reached.40 The Brundtland Report recommended that the UN transform its conclusions into a Programme of Action on Sustainable Development, hold a conference to review implementation of this programme, and institute follow-up arrangements to ‘set benchmarks and maintain human progress within the guidance of human needs and natural law’. The UN General Assembly decided to convene a UN Conference on Environment and Development (UNCED) in 1992, and it established a Preparatory Commission in which most of the negotiations took place.41 Political objections from developing countries ensured that intergovernmental negotiating committees established by the UN General Assembly were given responsibility for drafting conventions on climate change and biological diversity, rather than UNEP, the World Meteorological Organization (‘WMO’) or the FAO.42 Developing states also worked hard to coordinate their negotiating position,43 although in the intergovernmental negotiating committee on climate change they could not agree on a common position and separated into different groups.44 Despite these various disagreements, p. 53a declaration on environment and development, a detailed programme of action, known as Agenda 21, and framework conventions on climate change and biological diversity, were adopted by consensus.

Two unusual features of UNCED were: first, its sponsorship not only by states but also by major companies (e.g. ICI) and foundations (e.g. the MacArthur and Rockefeller Foundations) and, secondly, the fact that NGOs were allowed to play a major role in the preparatory committees. The negotiating climate in these meetings was often hostile, as major differences emerged on such basic questions on the weight to be accorded to development and the environment; whether the two could be separated; and the content of ‘sustainable development.’ As in earlier negotiations, developing states characterized the environmental crisis as a long-term developmental one, while developed states saw it as a more immediate technical problem. The former thus endeavoured to direct discussion, as in the 1974 debates on the ‘New International Economic Order,’ towards reform of the international economic system as a prerequisite for effective environmental action. Major differences thus again arose along a North-South divide on issues relating to sovereignty over natural resources, economic costs, equitable burden-sharing, funding, the role of multilateral institutions, transfer of technology, climate change, biological diversity, and deforestation. The North’s proposals on the last two issues, in particular, were regarded as a threat to the sovereignty of developing states over their own natural resources, while pressure for global action on climate change was seen as an inequitable attempt to force developing states to share the costs and burdens of a problem created almost entirely by the industrialized states.

Many governments and NGOs expressed regret that UNCED was not asked to adopt the more ambitious proposals for an Earth Charter, that the 1992 Climate Change Convention was weakened, that many crucial issues were removed from or diluted in the final conference text, and that the US refused to sign the 1992 CBD in order to protect its pharmaceutical industry.45 A proposed treaty on forests was blocked by the opposition of developing states,46 while developed ones only made vague commitments on provision of financial resources and debt reduction. Despite these deficiencies, some spirit of solidarity (referred to as the ‘Spirit of Rio’) did prevail, enabling new instruments and an agenda for future action (Agenda 21) to emerge from the negotiations. A Commission on Sustainable Development (‘CSD’) was established, with responsibility for keeping under review ‘the implementation of Agenda 21, recognizing that it is a dynamic programme that could evolve over time. …’47 A contributing factor was the unprecedented level of NGO participation in the negotiations leading up to UNCED, the vast number of NGO observers who were present in Rio to lobby government delegates, and the presence of so many heads of state and government.

(b)p. 54 UNCED instruments

UNCED adopted a range of instruments whose legal status and implications we explore in greater depth in later chapters.

(i) The Rio Declaration on Environment and Development. This set of twenty-seven principles, finely balanced between the priorities of developed and developing states, sets out the principal contours of sustainable development as now endorsed by UN member states, but it also has much greater legal significance than its 1972 predecessor. It is examined in detail in Chapter 3.48

(ii) Agenda 21,49 a programme of action covering many issues, including climate change, deforestation, desertification and protection of the oceans. Although not legally binding it is potentially relevant to interpretation of treaties and other instruments adopted in accordance with its provisions. It recognizes more explicitly than the Stockholm Action Plan the interconnections between economic, environmental, social, and development issues, and endeavours to integrate these objectives. Agenda 21 is directed primarily at states, but it also gives international agencies, including the UN and the World Bank, a role in supporting and complementing action by states, including the promotion of enhanced international cooperation and capacity building.

(iii) The Framework Convention on Climate Change and the Convention on Biological Diversity. These important agreements create new regulatory regimes for two of the most significant problems facing contemporary society: anthropogenic climate change caused mainly by consumption of fossil fuels, and large-scale species extinction and ecosystem depletion resulting in a worldwide loss of biological diversity. Despite their adoption by consensus, both treaties exemplify the difficult policy choices facing governments trying to integrate economic and environmental considerations. Even though ratification is virtually universal, the continuing inability to achieve the objectives of either agreement illustrates the gulf between commitment in principle to sustainable development and implementation in practice in national law and economic policy. The climate change and the biodiversity agreements are considered in more detail in Chapters 6 and 11 respectively.

(iv) Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests. UNCED’s mandate only made generic reference to deforestation as an issue ‘of major concern in maintaining the quality of the Earth’s environment and especially in achieving environmentally sound and sustainable development in all countries.’50 p. 55Proposals for a forest agreement were put forward,51 but the most that could be agreed after strong opposition from developing countries was the Statement of Principles referred to above, now known as the Forest Principles (or the Rio Forest Principles).52 The Forest Principles laid out key notions that have influenced subsequent negotiations within and outwith the UN, including re-negotiation of the 1983 International Tropical Timber Agreement (‘ITTA’) in 1994 and 2006.53 The importance of these developments is the endorsement of sustainable management as the core principle applicable to forests.

2(3) 2002 World Summit on Sustainable Development

The third UN conference on environment and development convened at Johannesburg in 2002. Like the others, the World Summit on Sustainable Development (‘WSSD’) adopted a declaration and an action plan, known respectively as the Johannesburg Declaration on Sustainable Development and the Johannesburg Plan of Implementation.54 Unlike the earlier conferences neither document articulates new principles or policies, nor do they specifically set an agenda for further law-making. Their value lies mainly in the reaffirmation and refinement of existing policies and principles, and in giving a little more substance to the contours of sustainable development as a concept. They are best seen as a modest programme of incremental progress towards strengthening implementation of goals and commitments previously endorsed. Of particular environmental significance are the paragraphs in both documents on protection and management of natural resources, trade and environment, energy efficiency, and strengthening the CSD. Otherwise, for lawyers, their main importance is that they reiterate the precautionary principle, the polluter pays principle and public participation.

If the WSSD has generally been seen as a disappointment for environmental policy, it should be recalled that environmental protection is but one of the objectives of ‘special significance’ to which international policy-making and the attention of the UN is devoted, together with ‘development and poverty eradication,’ ‘peace and security,’ and ‘human rights, democracy and good governance.’55

2(4)p. 56 2012 UN Conference on Sustainable Development

To mark the 20th anniversary of UNCED, the UN General Assembly decided to convene the UN Conference on Sustainable Development (‘UNCSD’) in Rio de Janeiro, with the objective of securing ‘renewed political commitment for sustainable development, assessing the progress to date and the remaining gaps in the implementation of the outcomes of the major summits on sustainable development and addressing new and emerging challenges.’56 The conference was prepared in the aftermath of the 2008 financial crisis and the ensuing economic recession which especially affected developed countries in the Northern hemisphere. It is perhaps unsurprising that, together with the ‘institutional framework for sustainable development,’ the main theme of the conference was ‘a green economy in the context of sustainable development and poverty eradication.’57

Most of the negotiations again took place in a Preparatory Commission, which held multiple sessions between 2010 and 2012. They were marred by familiar North-South divides on the interpretation of fundamental principles, including common but differentiated responsibility and the transfer of funding and technology.58 The significant change in circumstances since 1992 was palpable, with emerging economies, including Brazil, China and India, playing a leading role in negotiations, while economic recession reinforced developed countries’ reluctance to live up to the requests of their developing counterparts concerning finance and technology transfer.

In preparation for the conference, UNEP, OECD and the World Bank promoted a ‘green economy’ as a new paradigm for sustainable development,59 but this quickly reopened unresolved questions about the very notion of sustainable development.60 While some developed countries proposed the adoption of indicators to measure progress toward the green economy and the establishment of a capacity development scheme, developing countries largely resisted these suggestions, arguing that the green economy should not turn into a ‘normative straightjacket.’61 The guidance on the green economy eventually included in the conference outcome document (‘The Future We Want’) thus represents only a minimalist common denominator between largely opposing views.62 It affirms that the green economy is but ‘one’ of the tools available to achieve sustainable development, and should not be regarded as a ‘rigid set of rules.’63 All countries are encouraged to consider its implementation in a manner p. 57that ‘endeavours to drive sustained, inclusive and equitable economic growth and job creation.’64 The emphasis here is not on long-term sustainability of natural capital but on short term economic growth.

While The Future We Want merely reasserted existing principles and policies on sustainable development, it did take steps to consolidate and strengthen the institutional framework, emphasising the need for policy coherence and coordination. First, it replaced the CSD with an intergovernmental High-Level Political Forum.65 Secondly, it expressed a commitment to ‘strengthen’ the UN Economic and Social Council (‘ECOSOC’) as the ‘principal organ’ with responsibility for furthering the outcomes of all major UN conferences and summits in economic, social, and environmental fields.66 Thirdly, the UN General Assembly was mandated to ‘strengthen and upgrade’ UNEP.67 The Future We Want also identified a framework for further action in various thematic areas, including biodiversity, climate change, energy, water, oceans and seas. The most important and potentially meaningful measure to emerge, however, was the establishment of an intergovernmental working group to elaborate ‘universally applicable’ goals ‘for pursuing focused and coherent action on sustainable development.’68 The outcome was the adoption by the UN General Assembly of 17 ‘Sustainable Development Goals’ and a ‘2030 Agenda for Sustainable Development’.69

At the time of writing, most of this work remains ongoing and an assessment of its impact is premature. It nevertheless seems clear that UNCSD has not engendered a radical departure from the status quo but rather exposed the faltering political will generally affecting international environmental governance. With 44,000 participants, however, UNCSD also provided a concrete manifestation of the increasingly prominent role played by NGOs, business, and local and regional governments. Building upon sustainable development ‘partnerships’ launched at the 2002 WSSD, ‘voluntary commitments’ were undertaken at UNCSD by a variety of non-state actors.70 Together with the development of sustainable development goals, considered in the next section, this recognition of a bottom-up, multi-stakeholder approach to sustainable development may be the most important legacy of UNCSD.

2(5) The Concept of Sustainable Development

With the adoption of the Rio instruments at UNCED, sustainable development became and has remained the leading concept of international environmental policy. While some have argued that sustainable development may be regarded as a principle p. 58of international law,71 or even of customary international law,72 the ICJ has more cautiously referred to it as an ‘international objective.’73 The legal status of sustainable development is considered in Chapter 3.

The Brundtland Report characterized sustainable development as a process that ‘meets the needs of the present without compromising the ability of future generations to meet their own needs.’74 According to UNEP’s Governing Council this platitudinous formulation ‘does not imply in any way encroachment upon national sovereignty.’75 Although ‘sustainable development’ is referred to throughout the 1992 Rio Declaration and Agenda 21, it was not until the 2002 WSSD that anything approaching a UN definition of the concept could be attempted. Three ‘interdependent and mutually reinforcing pillars of sustainable development’ were identified in the Johannesburg Declaration—economic development, social development and environmental protection.76 In 2015 the UN went further and adopted an ambitious set of Sustainable Development Goals (‘SDGs’).77 The vision of sustainable development set out in the 2015 SDGs and the accompanying 2030 Agenda for Sustainable Development (‘2030 Agenda’) focuses mainly on economic and social development. Reduction of poverty and hunger are the pre-eminent objectives, but the goals cover almost every aspect of international policy, including well-being for all ages, gender equality, safer cities, better sanitation, sustainable consumption, access to justice, and so on.

While the Preamble to the 2030 Agenda fully recognizes the seriousness of the environmental challenge—including threats to the climate, biodiversity, water resources, and the marine environment—only four of the seventeen 2015 SDGs are of particular relevance to the environment. SDG 12 commits states to ‘ensure sustainable consumption and production patterns’ and reiterates existing commitments on management of hazardous wastes and chemicals.78 SDG 13 calls for ‘urgent action’ to deal with climate change and its impacts, and, at least in form, they have since done so, by adopting the 2015 Paris Agreement.79 SDG 14 addresses conservation and sustainable use of the oceans and marine resources.80 SDG 15 aims to conserve and sustainably manage terrestrial ecosystems such as forests and wetlands, combat desertification, and halt loss of biodiversity.81 None of this adds anything new to international environmental policy or law, but it does serve to reaffirm existing commitments within the context of a process whose outcomes ECOSOC will keep under review.82

p. 59The expectation is that the process of reporting will engender peer pressure, leading states to deliver on the 2030 Agenda.83 Reporting and review of non-binding targets and goals have become trademarks of international environmental law and policy—as exemplified by the Aichi Targets adopted under the 1992 CBD, or the global temperature goal enshrined in the 2015 Paris Agreement. Their effectiveness has yet to be demonstrated. When compared with earlier UN conferences, the 2015 SDGs and the 2030 Agenda unequivocally acknowledge that global environmental problems cannot be solved without the cooperation of business and industry, whose commitment to tackling climate change, mercury pollution or the spread of plastic litter, may matter more than that of states.

In spite of the adoption of the 2015 SDGs and of the 2030 Agenda, it seems fair to say that, more than thirty years on from the Brundtland Report the concept of sustainable development remains almost infinitely malleable.84 Social, political and economic choices abound: what weight should be given to natural resource exploitation over nature protection, to industrial development over air and water quality, to land-use development over conservation of forests and wetlands, to energy consumption over the risks of climate change, among others. These choices may result in wide diversities of policy and interpretation, as different governments and international organizations pursue their own priorities and make their own value judgments, moderated only to some extent by international agreements on such matters as climate change and conservation of biological diversity. The 2030 Agenda recognizes that it is for each state to make these choices, provided they also make progress towards achieving the agreed goals.

Whatever else it means, therefore, sustainable development does not imply zero growth.85 Nor do the 1992 Rio Declaration and subsequent UN conferences envisage such an outcome. International policy has taken an approach to sustainable development which emphasizes the fundamental importance of equity within the economic system. This equity is both inter-generational, in seeking a fair allocation of costs and benefits across succeeding generations,86 and intra-generational, in that it seeks to redress the imbalance in wealth and economic development between the developed and developing worlds by giving priority to the needs of the poor.87 Put simply, development will only be ‘sustainable’ if it benefits the disadvantaged, without disadvantaging p. 60the needs of future generations. These points are well observed in Principles 39 of the 1992 Rio Declaration, in the 1992 Convention on Climate Change and the 1992 CBD, and in the 2015 SDGs.. What is characteristic of all these instruments is their commitment to promoting the interests of developing countries. These countries benefit inter alia from access to funding and capacity-building through the Global Environment Facility (‘GEF’) and other sources,88 from access to the benefits derived from exploitation of their own genetic resources and transfer of technology,89 and from a recognition that in a system of ‘common but differentiated responsibilities’ developed countries bear a larger responsibility for ensuring sustainable development ‘in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.’90 On this view economic development and poverty eradication remain ‘the first and overriding priorities’ of developing countries.91 The counter-argument, however, is that international policy has been overly-focused on present generations, and that a stronger focus on the inheritance of future generations is required in order to save the world from ultimate ruin.92 Thus there are different ways of capturing what is sustainable about development.

The ‘weak’ version of sustainable development entails a balance between environmental protection and economic growth. The integration of environmental protection and economic development was an important objective of UNCED, expressed in Principle 4 of the 1992 Rio Declaration. Much of Agenda 21, and of later developments in international environmental law and policy, has been concerned with attaining this integration. Clearly, a policy of economic growth which disregards environmental considerations, or vice versa, will not meet the objective of sustainable development. But to view sustainable development as amounting to a compromise between equally desirable ends gives us no criteria for determining the parameters and ultimate objective of this integration of development and environment. Nor does it tell us what the needs of future generations will be. The main critique of weak sustainability is that natural capital is not infinitely substitutable by man-made capital, and that some natural capital must be preserved in order to meet the needs of future generations and prevent ultimate catastrophe.93 From this perspective Helm argues that ‘no net loss would transform the environmental outlook,’94 and he formulates an ‘aggregate natural capital rule’ designed to ensure that future generations inherit a comparable stock of natural capital even if it is not the same stock. The ‘green economy’ paradigm p. 61promoted at UNCSD was intended to respond to some of this critique by offering a stronger model of sustainability.95

The ‘strong’ version of sustainable development requires greater emphasis on preservation of the natural environment—on the ‘sustainable’ element in the equation.96 It favours ‘a notion of economic welfare which acknowledges non-financial components’,97 in particular the quality of the environment, health, and the preservation of culture and community. At some level these concerns require preservation of natural capital, such as biodiversity not simply a substitution of man-made capital of equivalent value. We can see some of these concerns in Principle 1 of the 1992 Rio Declaration, which places human beings ‘at the centre of concerns for sustainable development’, and proclaims their entitlement to ‘a healthy and productive life in harmony with nature’, but more especially in agreements such as the 1972 Convention for the Protection of World Cultural and Natural Heritage,98 which protects areas like Stonehenge and the Great Barrier Reef. Similarly, the 1991 Protocol to the Antarctic Treaty on Environmental Protection (‘Antarctic Protocol’)99 designates Antarctica a Special Conservation Area, and acknowledges its ‘intrinsic value’, including ‘wilderness and aesthetic values’. The 1992 CBD also refers to the ‘intrinsic value’ of biodiversity in sustaining the biosphere and proclaims its conservation to be the ‘common concern of humankind.’100 As we have seen the 2015 SDGs go only some way to prioritizing this global common interest in preventing climate change and conserving biodiversity and the marine environment.101

If anything, the challenge of ensuring that economic development is environmentally sustainable has become even more daunting in the last thirty years. When the 1992 Rio Declaration was adopted, an enormous gap existed between the North and the South. This gap has since reduced significantly, with countries like Brazil, China and India bolstering economic growth, reducing poverty and significantly increasing overall wealth.102 These important achievements have however been coupled with unprecedented levels of environmental degradation.103 If the UNCSD was supposed to reconcile improved human well-being with addressing environmental risks and ecological scarcities,104 it is far from obvious that it has succeeded. The 2015 SDGs have given the concept of sustainable development more concrete content, but they may also have under-estimated the scale and seriousness of the environmental problems the world continues to generate on a global scale. This is the fundamental point made p. 62by Helm, who observes that ‘It is not hard to make the case that the process of destruction [of natural capital] has gone too far, and that renewable natural capital as a whole is already well below the optimal level. …The state of core ecosystem services, from climate to fresh water and soils, is already a serious cause for concern.’105

Helm’s conclusion is amply borne out by later chapters of this book. If sustainability truly entails a balance between economic development and environmental protection then that balance remains heavily tilted towards development. Rio’s long-term contribution to global environmental policy and thus to the evolution of international law is at best an ambiguous one: it may have slowed things down, but it has not fundamentally changed the direction of travel.

3 The UN and Environmental Governance

3(1) The UN’s Environmental Competence

The UN has become the most significant political embodiment of the international community, ‘a central institution in the conduct of international relations’.106 Nevertheless, although the UN Charter expressed the UN’s aims and purposes in far wider terms than those of the League of Nations, nowhere is there any explicit reference to the aim of protecting, preserving or conserving the natural environment or promoting sustainable development. This is hardly surprising. There was little awareness in 1945 of any need to protect the environment, except on a limited and ad hoc basis, and it was not anticipated that UN action would be needed. Thus, the subsequent evolution of the UN’s power to adopt policies or take measures directed at environmental objectives has to be derived from a broad interpretation of the UN Charter and of the implied powers of the organization. Article 1 includes among the purposes of the UN the furtherance of ‘international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights…’. Article 55 also requires the UN to promote conditions of economic and social progress and development, solutions to international economic, social, health and related problems, and observance of human rights and fundamental freedoms.

In the Reparations for Injuries Case the ICJ held that ‘the rights and duties of an entity such as the Organization must depend upon its purpose and functions as specified or implied in its constituent documents and developed in practice’.107 It can readily be assumed that environmental protection is an essential element in the promotion of social progress and in solving economic and social problems as referred p. 63to in Articles 1 and 55.108 On that basis UNEP was established in 1972 following the Stockholm Conference, and the CSD in 1992 following UNCED. Both bodies reported to ECOSOC, and so do their successors. The same articles of the UN Charter also support the environmental work of the regional UN Economic Commissions.109

An important feature of the UN system has been the establishment of various specialized agencies. Like the UN, these organizations were not originally endowed with explicit power over environmental matters, but they have had to develop such a competence through interpretation and practice.110 Those whose responsibilities for environmental protection or sustainable use of natural resources have evolved in this way include the IMO, FAO, World Bank, and the UN Educational, Scientific and Cultural Organization (‘UNESCO’).111 The IAEA is an independent international organization related to the UN system; it too has acquired an environmental dimension through interpretation of its constituent instrument.112 The same is true of the WTO and OECD.113

The powers of all these bodies are necessarily more limited than those of the UN. In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons,114 the ICJ distinguished the general power of the UN General Assembly from the exclusively health-related powers of the WHO and denied the latter body the competence to seek an advisory opinion on the legality of nuclear weapons, notwithstanding their obvious potential for harming human health and the natural environment. This decision illustrates how closely the express and implied powers of specialized agencies must be related to their specific objects and purposes. Thus the IMO’s environmental competence is confined to marine pollution from ships, the FAO deals with the environment as an aspect of sustainable use forests, fisheries and so on.

3(2) UN Principal Organs and Protection of the Environment

(a) The General Assembly

The General Assembly, the Security Council, and ECOSOC, are amongst the ‘principal organs’ of the UN.115 Every member state has one vote in the General Assembly, giving developing states an overwhelming majority. The General Assembly has limited power, but may discuss any matter within the scope of the Charter, and make p. 64recommendations to member states or to the Security Council.116 In particular, Article 13 provides that it ‘shall initiate studies and make recommendations’ for the purpose of promoting political cooperation, encouraging the progressive development and codification of international law, promoting international cooperation in the economic, social, cultural, education and health fields and assisting in the realization of human rights. The General Assembly is thus the UN’s most important political body.

While the General Assembly has no law-making power as such, its ability to adopt resolutions, convene law-making conferences and initiate codification projects has given it a central role in the development of international policy and law relating to many aspects of the environment.117 As we shall see in later chapters, General Assembly resolutions on the legal status of the deep-seabed, natural resources, and the global climate have influenced the evolution of treaties and customary law on these matters, as has the General Assembly endorsement of the Stockholm and Rio Declarations. Decisions to convene the UN Conferences on, inter alia, the Human Environment (Stockholm, 1972) the Law of the Sea (Caracas, 1973), Environment and Development (Rio de Janeiro, 1992), and most recently, Sustainable Development (Rio de Janeiro, 2012) were taken by the General Assembly. With regard to the codification of international law, the General Assembly usually acts through the ILC or ad hoc committees. Over the years the ILC has considered a number of topics of particular relevance to the environment, including non-navigational uses of international watercourses; transboundary aquifers; the prevention of transboundary harm; the protection of the environment during armed conflict; and the protection of the atmosphere.118

Even when it does not itself promote the negotiation of new treaties or other instruments, the General Assembly’s power to coordinate the legal and policy agendas of specialized agencies and other UN bodies gives it a continuing role at the heart of the law-making process. With so many different bodies potentially involved in international law-making, the task of allocating responsibilities and coordinating policy is an important feature of the General Assembly’s role. Where, for example, should responsibility for developing international law relating to forests be located? The FAO’s agricultural mandate covers forestry, while promoting trade in timber is the main objective of the International Tropical Timber Organization (‘ITTO’). The 1972 Convention for the Protection of the World Cultural and Natural Heritage (‘World Heritage Convention’) adopted by UNESCO protects some forest areas, while forests generally are also covered by the 1992 CBD. Sustainable use of natural resources falls within the mandate of UNEP, while the management of forest carbon stocks is a significant issue for parties to the 1992 Climate Change Convention and the 1997 Kyoto p. 65Protocol. Where such cross-cutting areas of policy are involved, no single forum is self-evidently the right one to undertake the development of new law. Yet the choice of forum may affect not only the perspective from which the issues are approached but also the constituencies most likely to become involved and whose interests are most strongly favoured by the governmental representatives concerned. To give responsibility for a convention on forests to the FAO, for example, would tend to favour the perspectives of agriculture and forestry ministries and the relevant industries. To give it to UNEP would be more likely to favour environmental ministries and organizations. In either case, the influence of developing countries may not be as strong as it is in the General Assembly, and forests are a matter of strong interest to a number of important developing states. In such circumstances there is a tendency for the UN General Assembly to take upon itself responsibility for coordinating action.119

Moreover, even a specialized agency with undisputed competence may not be the best forum to take the relevant measures. Specialized agencies, both national and international, tend to be strongly influenced by special interests and particular ministries. For instance, the IMO, dominated by shipping states, has been notably reluctant to strengthen international law relating to flag of convenience vessels.120 The FAO, in which fishing states have a powerful voice, has been slow to react to unsustainable practices such as drift-netting or flag of convenience trawling. In all of these cases it may become necessary for the General Assembly with its universal membership and broader view to take action, as it did when adopting a ban on driftnet fishing,121 or establishing an inter-agency task force on flags of convenience in response to lobbying by Greenpeace, IUCN and the International Transport Workers’ Federation.122

Moreover, the UN’s endorsement of global policies necessarily affects other international organizations. Thus, when the General Assembly endorsed the 1992 Rio Declaration, referring to its ‘fundamental principles for the achievement of sustainable development,’ it also called on the CSD and the UN Secretary-General to promote incorporation of the principles of the declaration in the implementation of Agenda 21 and in UN programmes and processes, and urged governments to promote their widespread dissemination.123 The Rio agenda has gradually affected the application and development of law and policy by most of the relevant international organizations, including the FAO, IMO, World Bank, and the WTO, as well as by treaty bodies such as the ITTO and the European Energy Charter.124 International law-making by p. 66all of these organizations on issues such as the precautionary approach, sustainable use of natural resources, and environmental impact assessment reflects the changes brought about through UN soft law since 1992. The same can be said for the treaty bodies which administer MEAs.125

The point is not that the General Assembly has usurped the powers of other bodies, nor does it have the constitutional power to direct the policies of autonomous bodies such as the WTO, World Bank, or ad hoc treaty COPs and commissions. Rather, it can perform a necessary role in seeking to bring some measure of coherence to the policies and law-making activities of an otherwise diverse range of organizations.

(b) The Security Council

The Security Council has more power, but a narrower role, than the UN General Assembly. Composed of 15 states, its decisions on measures to restore international peace and security under Chapter VII of the UN Charter are binding on all UN member states unless vetoed by one of the five permanent members.126 Its post-Cold War practice shows how broad an interpretation can be given to the phrase ‘international peace and security’.127 Although the Security Council is not formally a law-making body, since 9/11 it has used its mandatory powers to adopt a number of binding resolutions on anti-terrorism measures laying down general rules for all states.128 There are some obvious advantages to Security Council law-making rather than the more formal processes of negotiation through the UN General Assembly or a treaty conference. First, all UN Member States are bound to comply with Chapter VII resolutions—there is no room for opt-outs or reservations. Secondly, such resolutions prevail over other international agreements and they do not have to conform to existing general international law.129 Security Council law-making could thus enhance the coherence of international law if used appropriately.130 To that extent the Security Council could become an instrument of law reform, overcoming the problem of the ‘persistent objector’ in customary law and the ‘free-rider’ in multilateral treaties.

Some authors have used the concept of ‘environmental security’ to envisage a greater role for the Security Council in dealing with environmental threats and emergencies, including climate change.131 Measures to promote environmental protection p. 67may in some circumstances be necessary for the maintenance of international peace and security, thus giving the Security Council power to take mandatory action under Chapter VII, although ‘the language of the Charter, not to speak of the clear record of the original meaning, does not easily lend itself to such an interpretation’.132 The Council has acted cautiously with respect to environmental matters, using its Chapter VII powers only once, to hold Iraq responsible in international law for environmental damage inflicted on Kuwait during the 1991 Gulf war.133 In 2007 the Council also held its first debate on climate change. At present no consensus exists on addressing climate change within the Security Council, although it seems likely that it could do so if the need arose.134 To give the Security Council an enhanced role as an international legislator in areas such as climate change would be a tenable option only if the process can be legitimized and made generally acceptable to States.135

(c) UN Economic and Social Council

ECOSOC is the principal UN organ responsible for the promotion of international cooperation on economic and social matters.136 It has in the past been notoriously ‘unable to rise to this task,’137 but UNCSD expressed a commitment to strengthen ECOSOC as the ‘principal organ in the integrated and coordinated follow-up of the outcomes of all major UN conferences and summits.’138 It now has a leading role in integrating the three dimensions of sustainable development, identifying emerging challenges, and ‘promoting innovative thinking’.139 The new High-Level Political Forum on Sustainable Development has been created in order to provide stronger political leadership and make recommendations for sustainable development.140 It will have a central role in the follow-up and review of the 2030 Agenda and the 2015 SDGs.141 The Forum replaces the CSD which achieved little in its twenty-year existence; whether a Forum with much the same mandate will do any better remains to be seen. Other subsidiary bodies of ECOSOC include the UN Forum on Forests. ECOSOC is also the body to which UN specialized agencies, commissions and programmes report, and with which NGOs may have consultative status.142

3(3)p. 68 Un Environment (Programme)

(a) UN Environment’s mandate

UNEP, or UN Environment as it is now known, is the only UN body with a mandate to focus specifically and exclusively on environmental issues. Although only a ‘programme’ it has been the most active UN body in the development of environmental soft law and multilateral environmental agreements, as well as promoting treaty implementation and coordinating some of the growing number of treaty bodies. It was established by the UN General Assembly in 1972, following the Stockholm Conference.143 UNEP’s original terms of reference envisaged a limited role:

To promote international co-operation in the field of the environment and to recommend, as appropriate, policies to this end; [and] to provide general policy guidance for the direction and co-ordination of environmental programmes within a United Nations System.144

It was thus expected to act as a catalyst in developing and coordinating an environmental focus in the programmes of other UN bodies, rather than initiating action itself. Its first director said its role was ‘to complexify’, that is, to ‘remind others of, and help them to take into account all the systems, interactions and ramifications implied in their work’. He observed that it was the lack of this cross-sectoral, cross-disciplinary view that had led to many environmental problems.145

The status and future role of UNEP were the subject of debate before, during and after UNCED in 1992.146 Although its activities had to some extent helped in ‘greening’ specialized agencies, including the World Bank, and resulted in some important law-making innovations, it had not succeeded in coordinating the environmental work of the UN and other bodies. UNEP did not have a clear role in the 1992 Rio Conference. Proposals for transforming it into a specialized agency like the FAO or IMO attracted little support.147 Instead, there was more support for strengthening UNEP in its existing role. In addition to UNEP’s original mandate, Agenda 21 gave priority, inter alia, to developing international environmental law, environmental impact assessment and auditing, providing advice and support to governments, and promoting regional and sub-regional cooperation.148 Yet another priority was accorded to coordinating p. 69(‘clustering’) the growing number of environmental treaties, and their secretariats.149 At the same time, the creation of the CSD, the GEF, and an Inter-agency Committee on Sustainable Development added yet more competing institutions with overlapping responsibilities, diluting UNEP’s influence within the UN system, and reinforcing the ‘sense of policy incoherence among the different international bodies dealing with environmental issues.’150

The UNCSD in 2012 once again rejected proposals for the establishment of a UN specialized agency for the environment,151 opting instead to further ‘strengthen and upgrade’ UNEP by, inter alia, establishing universal membership in its Governing Council (now rechristened the ‘UN Environment Assembly’ or ‘UNEA’), increasing its budget, strengthening its engagement in UN coordination bodies, and empowering it to lead efforts to formulate UN system-wide strategies on the environment.152 UNEA’s establishment may be viewed as part of a process to render the UN bureaucracy more transparent and inclusive, whilst at the same time giving greater prominence to the environmental pillar of sustainable development. Its first meeting set new priorities for tackling air pollution, chemicals, and illegal trade in wildlife, but it has also drawn attention to new challenges, such as the spread of plastic in the marine environment.153 An obvious question remains: how will the UNEA interact with the High-Level Political Forum on Sustainable Development? Will these bodies cooperate or will they pursue different agendas, as has happened before?

(b) UNEP’s Role in Developing International Environmental Law

Although UNEP was not initially given a specific mandate to develop international environmental law, the necessity for promotion of binding and non-binding instruments to achieve its purposes was appreciated from the outset. An ambitious environmental law programme (the ‘Montevideo Programme’) has been revised periodically in response to UNCED and subsequent reviews.154 Agenda 21 expressly mandated UNEP to undertake further development of international environmental law, as well as promoting its implementation and coordinating the growing number of treaty secretariats and meetings of parties.155 One reading of the revised mandate concludes that it is ‘wider than just the coordination of the environmental conventions’ secretariats, p. 70and includes the coordination of the whole process of international law-making in the field of sustainable development.’156

UNEP’s achievements are considerable, if measured purely by the number and importance of the legal instruments for which it has been responsible, but its catalytic role was clearly strongest during its first two decades. Its contribution to international law-making can be grouped loosely into three categories: (i) conclusion of international agreements;157 (ii) development of soft law principles, guidelines, and standards;158 (iii) provision of assistance for drafting of national environmental legislation and administration in developing countries.159 It pioneered both the use of so-called ‘framework treaties’ and ‘soft law’ instruments.160 The Regional Seas Programme introduced some innovatory concepts, such as specially protected areas, and now covers some fourteen regions.161 UNEP guidelines provided the basis for negotiation of the 1989 Basel Convention, resulted in the adoption of further regional agreements, and (with the FAO) the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (‘Rotterdam Convention on Prior Informed Consent’).162 Guidelines on environmental impact assessment have resulted in refinement and adoption of the concept in national law and their elaboration in the 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context (‘Espoo Convention’).163 More recently, UNEP has played a crucial role in establishing the processes that lead to the adoption of the 2013 Minamata Convention on Mercury.164

We will examine in later chapters the results of UNEP’s law-making efforts. Not every UNEP softlaw instrument is necessarily intended to be normative in character.165 For example, the UN General Assembly only asked states to use the UNEP Principles p. 71on Shared National Resources as ‘guidelines and recommendations in formulating conventions’; states and international organizations were asked to ‘take…into account’ the Montreal Guidelines for the Protection of the Marine Environment from Land-based Sources of Pollution when developing agreements and national legislation.166 The Cairo Guidelines on Waste Management were addressed to states ‘with a view to assisting them in the process of developing policies’ for this purpose.167 Assessing the legal significance of any of these non-binding instruments depends, as we saw in Chapter 1, on their relationship to related treaties, subsequent state practice, and opinio juris.

3(4) A Global Environmental Organization?

Should UN Environment have been turned into a fully-fledged UN specialized agency as a number of states and writers had proposed?168 Protagonists rightly pointed to fragmentation of UN structures dealing with the environment, the relative weakness of UNEP as the principal UN body with general environmental competence, and the powerful focus the IMF, World Bank, UNDP and the WTO bring to economic development. Sceptics regarded the creation of a new international organization as politically unrealistic and unnecessary.169 As we saw above, UNEP’s existing status as a UN programme has not stopped it from performing a considerable law-making role or providing an effective forum for treaty negotiations and coordination. A UN environment agency could not easily take over the environmental responsibilities of other specialized agencies, such as the FAO or the IMO:170 the work of these bodies has an important environmental dimension which cannot be separated from their general responsibilities. Nor is it evident how coordination of environmental treaty regimes would be any easier if UN Environment were a specialiszd agency instead of a programme. The failure of the WTO to achieve anything comparable on trade since 1994 makes that comparison look increasingly hollow. Reforms introduced since the UNCSD have enhanced UN Environment’s role in the UN system and addressed many of the earlier criticisms, at least to some extent. The problem of coordination of the UN’s still diverse environmental structures remains, but the real challenge for UN Environment is not structural, but whether it continues to have a useful role in a global environmental agenda rightly dominated by sustainable development, climate change, and the marine environment.

4p. 72 Other International Organizations

4(1) UN Specialized Agencies and Related Bodies

Space does not permit a detailed explanation of the environment-related work of all the agencies which, through agreements with ECOSOC, have entered into a special relationship with the UN.171 For our purposes the most directly relevant are the FAO, IMO, the World Bank, and other related organizations, including the IAEA, the WTO, and the OECD. There are also a number of UN regional bodies with environmental responsibilities. Within the UN system specialized agencies and regional commissions are the principal repositories and disseminators of technical expertise, and it is this attribute which arguably constitutes their most significant contribution to the law-making process. Moreover, NGOs and national experts often work closely with specialized agencies, sometimes to a greater extent than is possible in the UN itself.

The range of law-making activities undertaken by the specialized agencies and related bodies is very varied. Their most important role is best understood as international standard setting.172 The adoption of soft law codes and guidelines on nuclear installations by the IAEA, the Codex Alimentarius of the WHO and FAO, the radiological protection standards established by the International Commission on Radiological Protection (ICRP’), or the annexes to IMO treaties on ship safety and pollution typify this aspect of their work.173 Essentially technical in character, these instruments seek to establish internationally agreed minimum standards for the regulation of internationally important industries. Their precise legal status will depend on the organization involved, the basis on which the standards are adopted and the form of the instrument.

Specialized agencies and regional commissions also negotiate and adopt multilateral treaties. In many cases, these treaties provide the legal framework for international regulatory regimes which provide the basis for standard-setting, monitoring processes, and compliance mechanisms. The regulation of maritime and nuclear safety, security and liability by the IMO and IAEA respectively are among the most important examples of this genre. Both organizations are responsible for adopting new treaties and treaty amendments, revising or adding annexes, and setting additional soft law standards on related matters. In effect they each constitute a standing diplomatic forum, whose ongoing oversight enables law-making to evolve relatively quickly in response to new problems, priorities, or opportunities. Less convincingly, they also enable member states to exercise some degree of oversight over implementation and compliance by member states.

Lastly, major UN agreements such as the 1982 UNCLOS and the 1992 CBD, or policy statements such as Agenda 21, often require further implementation by specialized agencies.

4(2)p. 73 UN Regional Commissions

There are five UN regional economic commissions. While the UN Economic and Social Commission for Asia and the Pacific (‘ESCAP’) has attracted attention for its work on green growth,174 only UNECE has made a significant contribution to the development of regional environmental law. However, the Economic Commission for Latin America and the Caribbean (‘ECLAC’) has begun to follow suit.175

UNECE’s most important environmental achievement is the creation of a framework for environmental cooperation and the harmonization of environmental law in Eastern Europe and the former Soviet Union, thus ensuring greater compatibility with standards in Western Europe. The first substantive achievement was the negotiation of the 1979 LRTAP Convention.176 The end of the Cold War brought rapid progress, including the 1991 Espoo Convention, the 1992 Convention on the Transboundary Effects of Industrial Accidents, the 1992 Convention on the Protection and Use of Transboundary Watercourses and Lakes, and the 1998 Aarhus Convention in addition to the adoption of further protocols to the 1979 LRTAP Convention.177 The impact of some of these agreements has been significant, notably in harmonizing legislation and practice on EIA, access to justice and public participation,178 and in the negotiation of further agreements covering environmental protection of the Rhine, Meuse, Scheldt and Danube.179

4(3) The Food and Agriculture Organization

The FAO was created for the purpose, inter alia, of improving efficiency in the production of food and agricultural produce.180 Broadly defined, its mandate also covers fisheries, marine products, forestry and forestry products.181 It is empowered to collect information, promote research, furnish assistance to governments, and make recommendations on conservation of natural resources and other matters. The FAO’s governing bodies include a Conference of member states, a Council which exercises powers delegated by the Conference, and various committees.

Within its specialized sphere, the FAO has promoted international environmental law-making in various ways.182 Article XIV of the FAO Constitution empowers the Conference to approve conventions and agreements relating to food and agriculture. While the majority of Article XIV treaties mainly establish regional fisheries commissions rather than adding to the corpus of international law, a few have laid down rules of more general significance, most notably the 1993 Agreement to Promote Compliance p. 74with International Conservation and Management Measures by Fishing Vessels on the High Seas (‘Compliance Agreement’) and the 2001 International Treaty on Plant Genetic Resources for Food and Agriculture (‘ITPGR’). The FAO provided expert and influential advice in the negotiation of the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas, the 1982 UNCLOS, and the 1995 UN Fish Stocks Agreement. It collaborated with UNEP in the negotiation of the 1998 Rotterdam Convention on Prior Informed Consent. Finally, when the adoption of binding agreements is not possible, the FAO has made some use of non-binding agreements, including the 1983 International Undertaking on Plant Genetic Resources, now superseded by the 2001 treaty considered below, and others relating to fisheries, also considered below.

The FAO played only a limited role in the negotiation of the 1992 CBD but it has subsequently been involved in implementation of the Convention and related elements of Agenda 21. To this end, the ITPGR adopted in 2001 replaced the earlier non-binding 1983 Undertaking and created a multilateral scheme for access to certain agricultural crops, an issue not specifically dealt with in the 1992 CBD.183 Negotiations were initiated by the FAO Council and conducted mainly in the Commission on Genetic Resources for Food and Agriculture, in which a large number of states participated, together with observers from the World Intellectual Property Organization (‘WIPO’), the CBD Secretariat, the International Union for the Protection of New Varieties of Plants (‘UPOV’), and a variety of NGOs and agricultural research institutes. Moreover, the negotiations straddled issues of concern to several other international bodies, including UNEP, the WTO, the UN Conference on Trade and Development (‘UNCTAD’), the WIPO and the COP to the 1992 CBD.184 The FAO’s work on the ITPGR therefore had to secure ‘harmony’185 with work carried out under the 1992 CBD—which eventually led to the adoption of the 2010 Nagoya Protocol on Access and Benefit Sharing (‘Nagoya Protocol’) to the 1992 CBD186—as well as complementarity with the work of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, established in 2000. The treatment of genetic resources under these instruments is a good example of how the same issue can be addressed by different processes, in different ways and with different but largely compatible outcomes, depending on the objectives and the interests they set out to protect.187

Since its inception the FAO has been the principal UN body responsible for establishing regional fisheries agreements, developing international fisheries law and promoting implementation of the fisheries provisions of the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas, the 1982 p. 75UNCLOS, the 1995 UN Fish Stocks Agreement, and Agenda 21 of the 1992 UNCED.188 It has employed a mixture of hard and soft law for this purpose, including the 1993 Compliance Agreement, the 1995 Code of Conduct on Responsible Fishing, the 2001 Reykjavik Declaration on Sustainable Fisheries, the 2009 Agreement on Port State Measures, and various voluntary undertakings.189 All of these fisheries instruments were considered initially by a ‘technical consultation’ of industry and government experts; they were then negotiated by consensus in the Committee on Fisheries before adoption by the FAO Council. Here we can see how, in the framework of a UN law-making treaty—the 1982 UNCLOS—a specialised agency can further develop the law within its own special field in response to emerging needs and priorities. At the same time, we can also see that a variety of law-making instruments allows added flexibility and increases the likelihood of reaching agreement.

Not all agreements on marine living resources come under the FAO’s jurisdiction however. It is notable that the International Whaling Commission (‘IWC’), which the US had at the outset thought should be incorporated into the FAO, voted against such a move when the opportunity arose. More recently regional fisheries agreements involving ‘fishing entities’ (i.e. Taiwan) have been concluded outside the FAO in deference to Chinese wishes.190

Faced with the disparate national interests of its members—which include developed and developing states, coastal, artisanal, and distant water-fishing states—the FAO has eschewed any attempt at a global or regional managerial role, confining itself instead to promoting effective management by states and fisheries commissions. A Committee on Fisheries (‘COFI’) and various committees of independent experts advise the Director General. Their reports have shown the unreliability of estimates of maximum sustainable yield (‘MSY’), the unsustainability of many fisheries, and the manifestation of biological degradation and economic waste.191

These considerations resulted in a reassessment of international fisheries policy and law during and after the 1992 Rio Conference. Placing international fisheries policy in a broader environmental context, Agenda 21 gave new vigour to the importance of sustainable use and conservation of marine living resources and recognized once more the need for more effective regional cooperation. The FAO has played a leading role in the negotiation of agreements on straddling and highly migratory fish stocks, sustainable fishing, and compliance with regional fisheries agreements. Intended to supplement the existing provisions of the 1982 UNCLOS, these agreements underline the FAO’s importance in the process of reforming international fisheries law.192 p. 76In particular, the 1995 UN Fish Stocks Agreement has for the first time provided a framework for regional agreements, revising those already in existence and requiring the negotiation of new ones. We return to this important development in Chapter 12.

4(4) The International Maritime Organization

The IMO is the principal body responsible for the international regulation of shipping and thus for the prevention of pollution of sea by ships. Its role as ‘the competent organization’ in this respect is referred to implicitly in several articles of the 1982 UNCLOS.193 It is empowered to promote ‘the general adoption of the highest practicable standards in matters concerning the maritime safety, efficiency of navigation and prevention and control of marine pollution from ships’.194 Responsibility for regulatory developments is divided between a Maritime Safety Committee (‘MSC’), a Marine Environment Protection Committee (‘MEPC’), established following a recommendation of the 1972 Stockholm Conference,195 and a Legal Committee.196 The IMO Council, whose forty members are drawn on an equitable geographical basis from the largest maritime states and other states with a ‘special interest in maritime transport and navigation’, supervises the work of these bodies. As a result, the Council is dominated by shipping states,197 but all member states are represented in the Assembly, the governing body of the organization, and in the various committees referred to above. Coastal states and those with limited maritime interests can thus participate fully in the Organization’s main rule-making bodies; however, it does not follow that they will necessarily be influential.

Agenda 21 re-iterated the need for the IMO to adopt further regulatory measures to address ‘degradation of the marine environment’, and this is reflected in its subsequent work, which addresses a broader range of environmental concerns than hitherto, including protection of sensitive sea areas and regulation of air and ballast-water pollution from ships.198 The 1997 Kyoto Protocol identified the IMO as the forum to pursue limitation or reduction of emissions of greenhouse gases from marine bunker fuels not controlled by the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (‘Montreal Protocol’).199

p. 77The IMO has negotiated almost 40 conventions, as well as adopting non-binding codes, recommendations and guidelines on related matters. For environmental purposes the most important regulatory treaties are the 1973/78 Convention for the Prevention of Marine Pollution from Ships (‘MARPOL’), the 1974 Convention on the Safety of Life at Sea (‘SOLAS’) and the 2004 Convention for the Control and Management of Ships’ Ballast Water.200 These agreements establish internationally recognized standards for the construction and operation of ships and the prevention of pollution at sea. The principal regulations are found not in the text of the Conventions themselves but in annexes which are easily and regularly supplemented or amended by decision of the MEPC or MSC.201 Apart from their character as treaty law, many of the relevant provisions of these annexes have become ‘generally accepted international rules and standards’ for the purposes of the 1982 UNCLOS.202 Another important role for IMO law-making is the development of treaty regimes whose principal purpose is to harmonize and progressively develop national law on liability for marine pollution.203 Some states have questioned whether these agreements are too favourable to the interests of the shipping and oil industries.204

Another criticism of the IMO has been the failure to give enough attention to non-implementation and non-compliance with existing conventions and standards, especially by flag states, many of which are members of the IMO Council. Although there is now a Sub-committee on Flag State Implementation, and a periodic audit scheme under which national laws and policies are reviewed, the IMO’s powers as a supervisory body remain more limited that the non-compliance procedures established under most MEAs.205

The IMO exhibits many of the strengths and weaknesses of international regulatory agencies. In its favour it enables the law-making process to draw upon appropriate technical expertise and it is rather more than a forum within which interested states negotiate and revise global standards. Industry associations, mainly representing shipping companies, seafarers and insurers, participate actively and they are often influential, as are some environmental NGOs.206 Bodies typically involved include the International Chamber of Shipping, the International Confederation of Trade Unions, P&I Clubs, Friends of the Earth International and IUCN. Among its weaknesses, the IMO inevitably finds it difficult to act against the opposition of flag of convenience states, many of which coordinate their positions in advance and are influential members of the IMO Council. This has been a significant factor in its inability to deliver stronger regulation and better compliance mechanisms. Like some other regulatory p. 78agencies the IMO is thus open to the criticism that it too often serves the interests of the industry it is meant to regulate.207 Pressure for action on flags of convenience has thus come from the UN General Assembly rather than from the IMO. Lastly, the whole process of negotiating and renegotiating maritime conventions can be very slow. The 1989 Salvage Convention took eleven years to negotiate, the 1996 HNS Liability Convention almost twenty; in 2019 the latter was still not in force. In this respect IMO compares unfavourably with the work of the Comité Maritime International (‘CMI’) in the years prior to IMO’s involvement in maritime law-making.208 The IMO can act quickly, as its response to disasters such as the sinking of the Torrey Canyon, the Erika or the Prestige shows.209 Nevertheless, given the IMO’s failure to take significant action in relation to pressing matters falling squarely within its remit, it is unsurprising if some states opt for unilateral measures rather than waiting for the IMO.210

4(5) The International Atomic Energy Agency

The IAEA was established principally to facilitate dissemination of nuclear technology for peaceful purposes and to prevent the proliferation of nuclear weapons.211 It has over 100 member states, meeting annually in a General Conference, and a Board of Governors, which must include the ten members most advanced in the technology of atomic energy or production of its source materials, and representatives of the eight major UN regions, if not already included. Although the agency is associated with the UN, it is an independent intergovernmental organization without specialized agency status. It is responsible, inter alia, for setting international standards on nuclear safety, a task which became more important following the Chernobyl disaster in 1986. Conventions on nuclear safety, radioactive waste, liability for nuclear accidents, and notification and cooperation in emergencies have all been negotiated through IAEA. It is thus the principal international regulatory agency for civil nuclear activities. Its role is considered in more detail in Chapter 7.

4(6) The World Trade Organization

The WTO is not part of the UN system. It was created by an inter-governmental conference in 1994 for the purpose of furthering free trade and facilitating implementation and operation of the GATT. and other related agreements.212 Like the IMO and various other international organizations, it is in effect a regulatory agency; unlike other international organizations it is also responsible for settling disputes between p. 79member states. All WTO members must sign up to all the main agreements adopted in 1994. While many of these agreements are detailed and comprehensive, some are little more than an outline or framework requiring further negotiations, while the whole package of WTO law assumes the need for continued evolution. In this respect the WTO is the forum for agenda-setting and policy review, as well as the negotiation, adoption, amendment and authoritative interpretation of WTO agreements.213 For these purposes all members are represented on the General Council and the Ministerial Conference, the two main political organs of the organization. The 1947 GATT allowed decisions to be taken by majority vote,214 but the parties have normally operated on the basis that consensus is desirable (defined for this purpose to mean the absence of objections by any member present when a decision is taken) and that practice is retained expressly in the WTO Agreement.215 Voting is thus allowed only if the objections of a member government cannot otherwise be overcome.

What can the WTO legitimately regulate? The Agreement Establishing the WTO envisages that it will provide a ‘common institutional framework for the conduct of trade relations among its Members…… .’216 At the same time, in the Preamble to the Marrakesh agreement the members recognized the need to do so in accordance with sustainable development and protection and preservation of the environment. Despite this explicit reference, the Organization has shown great reluctance to reflect environmental concerns in its law-making agenda, and it is largely through decisions of its quasi-judicial Dispute Settlement Body that serious conflict between trade law and international environmental law has so far been avoided.217 Moreover, trade regulation is not the exclusive preserve of the WTO, and there is nothing in the WTO Agreement which gives WTO treaties priority over other treaties. A small number of non-WTO multilateral treaties thus regulate environmentally harmful forms of international trade. These include the 1988 UN Convention against Illicit Traffic in Narcotic Drugs, the 1973 CITES and the Basel Convention negotiated by UNEP in 1973 and 1989 respectively, and a protocol on trade in genetically modified organisms adopted by the parties to the 1992 CBD.218 Provided any trade restraints they adopt are non-discriminatory and not a ‘disguised restriction on international trade,’219 there is no obligation for states to choose WTO as the forum in which to conduct negotiations on such matters. At the same time, since trade regulation is the central purpose of all of these agreements there is no reason in principle why the WTO should not address similar concerns. Because the WTO is not a UN specialized agency, its law-making activities cannot easily be coordinated or dictated by the UN General Assembly. Member governments are largely free therefore to decide for themselves what the scope of WTO law-making should be.

A more difficult question is whether the WTO can also regulate issues that do not themselves involve trade, but which have a direct impact on conditions of trade. p. 80Obvious examples would include the establishment of health, safety or environmental standards for goods or agricultural produce traded internationally. In all these examples other international bodies with primary responsibility for international regulation already exist, including the FAO, WHO and the various treaty COPs. There are no hard and fast jurisdictional boundaries between these organizations and the WTO, and it is possible to advance policy arguments for and against the WTO taking on a more expansive role in regard to the regulation of these matters and many others.220 It might well make sense, for example, to link negotiations on trade issues with setting standards for reducing CO2 emissions and promoting energy efficiency, since it is far from obvious why a country that subsidizes pollution by failing to take action on climate change should reap the benefits of free trade. We should not assume therefore that such trade-related issues could not be dealt with by the WTO.221

Ultimately it is for the contracting parties to decide on the forum in which they wish to negotiate, and if, for example, they choose to conclude the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS Agreement’) in a WTO context rather than at WIPO they are free to do so. This is no different from the similar choices made when preferring to negotiate a plant genetic resources agreement at the FAO rather than the 1992 CBD, or a tobacco convention at the WHO rather than the FAO or WTO. In all these cases states have treated the question as essentially a pragmatic one: which forum is more appropriate and why? The answer in many instances is best understood in political rather than jurisdictional or constitutional terms.222 But, while the boundaries between different organizations cannot be laid down in a systematic way, the need for a supportive relationship between the WTO and other international bodies is obvious.223

The substantive law of the WTO and its relationship to environmental concerns are dealt with more fully in Chapter 13.

4(7) The World Bank and the Global Environment Facility

(a) The World Bank

The World Bank and its private finance arm the International Finance Corporation (‘IFC’) fund long-term capital loans that will lead to economic growth in developing countries or that support reconstruction and development projects. Its mandate, like that of most of the regional development banks, requires it to facilitate investment, economic growth, and international trade, but does not as such mention protection p. 81of the environment or sustainable development.224 Some of its more grandiose projects, such as the funding of power stations, dams, pipelines, or the building of roads through forests, have caused serious environmental harm and dislocated the lives of many local people. Although the 1992 UNCED started the process of ‘greening’ the Bank, one early study concluded that the Bank’s approach ‘demonstrated that environmental sustainability cannot be added on [to] the “business-as-usual” approach to development.’225 Largely through strong NGO and US Congressional pressure the Bank has become increasingly responsive to the environmental impacts of its activities.226 Over the past twenty years it has developed sophisticated ‘safeguard policies’ requiring it to avoid, mitigate or minimize adverse social and environmental impacts of its lending decisions.227 For that purpose it subjects most major projects to a process of environmental impact assessment.228 Thus it is most unlikely now to fund projects which would be likely to cause significant transboundary environmental harm. The Bank was also instrumental in establishing a prototype carbon fund and other mechanisms designed to assist in implementing the 1997 Kyoto Protocol and promoting clean energy.229

The IFC has developed its own ‘sustainability framework’ under which borrowers must similarly assess environmental and social impacts.230 The IFC performance standards are designed to avoid or minimize pollution and greenhouse gas emissions ‘in line with internationally disseminated technologies and practices’; to promote sustainable use of natural resources, including living resources, water and energy; and to protect and conserve biodiversity and maintain ecosystem services.231 In practice meeting IFC standards will require compliance with a range of international environmental agreements and customary obligations.232 The evidence that it complied with p. 82this element of IFC standards was helpful to Uruguay in the Pulp Mills litigation.233 Borrowers must also comply with national law, ‘including those laws implementing host country obligations under international law,’234 or with the World Bank’s own environmental, health and safety standards if these are higher.235

An Inspection Panel provides affected groups or communities a means of challenging any failure by the World Bank to observe its own operational policies and procedures.236 This innovative method for introducing a measure of public accountability to the operations of an international organization has since been adopted by other bodies.237 The IFC’s equivalent was involved in assessing complaints during the Pulp Mills dispute.238 Operational policies and procedures of World Bank and its partner organizations have nevertheless continued to remain at the centre of sustained criticism, especially from human rights bodies.239

(b) The Global Environment Facility

The World Bank acts as trustee for the GEF, which provides funding to developing states and has become an important environmental institution in its own right. The GEF was established in 1991 by the World Bank, UNEP, and UNDP. Following decisions taken at UNCED to restructure the GEF in accordance with principles of ‘universality, transparency and democracy’, a new instrument was adopted by the three implementing agencies. It has since been further revised.240 Currently the GEF’s general function is to provide funds to enable developing countries to meet ‘agreed incremental costs’ of measures intended to achieve ‘agreed global environmental benefits’ with regard to climate change, biological diversity, international waters, deforestation and desertification, and chemicals and wastes. It works closely with other international bodies and regional development banks and also funds related IUCN and NGO activities. It has also been designated as the financial mechanism under the Conventions on Biological Diversity, Desertification, Persistent Organic Pollutants, and Mercury. Under the climate regime, however, the GEF has largely been replaced by the Green Climate Fund.241

p. 83The GEF is a separate and distinct entity from the World Bank and its partners.242 Representation on the Council and a qualified majority voting structure were designed to avoid the World Bank’s pattern of dominance by Western donor countries.243 The GEF Instrument specifies that GEF grants made from the financial mechanisms referred to above ‘shall be in conformity with the eligibility criteria decided by the Conference of the Parties of each convention’.244 However, the GEF voting structure ‘does not preclude the possibility of conflict between the objectives of the Conventions, the implementing agencies, and the GEF in the context of particular decisions.’245

The GEF is thus an important instrument for promoting participation by developing countries in policies and conventions intended to protect the global environment, and for assisting their implementation through capacity-building, as envisaged in Agenda 21. As such, it funds measures that do not necessarily benefit the country concerned, but which do benefit the international community as a whole. Its creation and remit reflect notions of ‘common but differentiated responsibility’ and ‘additionality’ in funding allocations which are core elements of the equitable treatment of developing countries in the 1992 Rio Declaration and the two Rio Conventions.246 The scale and impact of GEF funding have been substantial. Inter alia it has become the principal instrument for funding biodiversity conservation in developing countries, it has supported negotiation and implementation of MEAs, including the elimination of ozone depleting substances, and helped to promote the objectives of the 1982 UNCLOS, Agenda 21 and the Rio Conventions.247 The GEF has not been immune from criticism. Developing countries’ dissatisfaction with its operation led to the establishment of the Green Climate Fund,248 which has rapidly become the largest global institution disbursing climate finance.249 It remains to be seen whether it will manage to overcome the legitimacy and accountability difficulties experienced by the GEF.

4(8) The Organisation for Economic Co-operation and Development

The OECD is an economic grouping of industrialized states, not a UN agency. It has thirty-five member states, mainly European, but also including Australia, Canada, Japan, Chile, Mexico, South Korea and the US. Recognizing the economic interdependence of its members, its objectives are to promote growth, help less developed states, and encourage world trade. On this basis, and because its members undertake to ‘promote the efficient use of their economic resources’ and in scientific and p. 84technological fields to encourage research,250 the OECD has been a pioneer in the development of environmental policy and the promotion of sustainable development. Its Nuclear Energy Agency has played a significant role in the development of national and international nuclear law in Europe.251 More generally, the OECD has been an important forum in which to coordinate policy on environmental matters among the developed economies, and its expertise gives it significant influence in global environmental negotiations.

The OECD has performed three principal tasks with respect to the environment. First, it has developed some important principles of environmental law that have subsequently been adopted into national and international law. It was the OECD that first endorsed the polluter pays principle,252 and the principles of non-discrimination and equal access for transboundary claimants to national judicial remedies, administrative procedures and information.253 International support for transboundary EIA originated in a series of OECD recommendations which relied on the principle of non-discrimination.254 The OECD has also promoted public participation in environmental decision-making, access to environmental information held by public bodies, and access to justice.255 These instruments apply the basic principles now found in the 1998 Aarhus Convention.

Secondly, the OECD’s membership and expertise have given it significant influence in shaping global environmental negotiations and international law relating to transboundary problems. The obligation of states to cooperate in managing transboundary environmental risks through notification, consultation and negotiation was recognized in OECD principles as early as 1974.256 The formative influence of this precedent on general international environmental law should not be underestimated.257 OECD principles on transfrontier movements of hazardous waste also provided the model on which the 1989 Basel Convention is largely based.258 A later decision establishes agreed standards for implementation of the 1989 Basel Convention’s requirement for environmentally sound management of hazardous waste.259

p. 85Thirdly, the Environment Policy Committee of the OECD periodically reviews the environmental performance of its member states and makes recommendations on matters of environmental policy.260 One review concluded that ‘The Committee’s work provides major and sometimes the only references in this policy field.’261 The OECD also contributed to the debate on green growth in preparation for UNCSD.262

It is evident, however, that although climate change and natural resources management have ‘become an increasingly higher priority for members’,263 and the OECD is doing an increasing amount of work in this area, the focus of the OECD’s environmental instruments remains relatively narrow, reflecting the environmental agenda of the 1970s and 80s and mainly dealing with domestic and transfrontier environmental problems. Only a handful of the OECD’s instruments have anything to say on global environmental issues such as climate change, loss of biological diversity or protection of the marine environment. None of the OECD’s instruments addresses sustainable use of natural resources; again, this topic is mostly covered by multilateral agreements. The OECD’s committees have reviewed member state policies on sustainable fisheries, and on climate change, but no law-making initiatives or recommended principles have so far emerged.

In the environmental field the OECD’s legal instruments are overwhelmingly in the form of non-binding ‘recommendations’. A few are described as ‘Declarations’, including Declaration C(2006)94 on Integrating Climate Change Adaptation into Development Co-operation. A small minority are binding ‘decisions’ or ‘decision – recommendations’, mainly relating to the transfrontier movement of hazardous wastes, provision of environmental information, and radiation protection norms. At the same time, the OECD’s recommendations on transfrontier pollution, equal access, non-discrimination, and environmental impact assessment have become established as general international law or are incorporated in UN or UNECE treaties.264 Their non-binding form is from that perspective largely immaterial. The binding status of decisions on waste puts this topic in a different category, but that may simply reflect the non-participation of the US in the 1989 Basel Convention and the consequent need for a parallel regime governing waste movements between the US and other developed economies.

5 International Regulatory Regimes

5(1) Introduction

Often referred to as ‘international regimes’, MEAs with their related protocols and soft law have been employed by states and international institutions to provide a regulatory p. 86system capable of dynamic evolution.265 The strength of this model of governance is the provision of multilateral solutions to environmental problems and the negotiated application and development of international legal standards. It enables states to exercise a fiduciary or trusteeship role in the protection of the environment, other species, and future generations. No other model of governance offers adequate solutions to the problem of controlling phenomena of global character, such as climate change or ozone depletion, where no single state’s acts are responsible and where the interests of all are at stake. While some theorists see international regimes creating ‘epistemic communities’ of experts and interest groups,266 others argue that they offer a new basis for integrating international law and international relations.267

The application of regime theory to environmental relations can be observed in numerous treaties considered in later chapters, including the 1946 International Convention for the Regulation of Whaling (‘ICRW’), the 1972 London Dumping Convention (‘London Convention’) (replaced in 1996 by a new protocol), the 1973 CITES, the 1985 Ozone Convention, and the 1992 Convention on Climate Change, as well as many regional agreements. Both the 1985 Ozone Convention and the 1992 Climate Change Convention have evolved into complex regulatory regimes following regular meetings of the parties, with additional protocols, amendments, adjustments and decisions.268 In order to facilitate this further development most MEAs establish regulatory institutions, usually intergovernmental and autonomous in character,269 but in a few cases this role is performed by existing international organizations such as the IMO or the IAEA. The autonomous treaty bodies created by these agreements have become the international community’s primary institutional model for the regulation and control of environmental risks. Even when the problems are regional, such as the conservation of fish stocks, the allocation of water resources, or transboundary air pollution, some form of international management and cooperation will usually facilitate the equitable allocation and conservation of such resources. In the following sections we consider the role and powers of these international regulatory bodies.

Whether they are autonomous bodies or part of an international organization, the essential elements of environmental treaty institutions are threefold. First, and most importantly, the parties must meet regularly. Conferences or meetings of the parties p. 87(‘COPs/MOPs’) may be provided for in the treaty itself or may be convened by the UN or one of its specialized agencies, or by a commission established to manage the treaty. It is this ongoing role which institutionalizes these gatherings. Secondly, it will usually be the responsibility of the parties to keep the relevant treaty under review and take whatever measures they are empowered to adopt to further its object and purpose. Some treaties, usually described as ‘framework’ or ‘umbrella’ treaties, are specifically designed to facilitate further development through the addition of protocols, annexes, additional agreements, amendments, decisions or recommendations which give detailed content to the outline legal regime created by the treaty.270 COPs are usually the fora in which these measures are negotiated and adopted, and it is in this sense that they are law-making bodies. Thirdly, they will usually be assisted by expert bodies providing scientific, technical and legal advice where appropriate. These bodies may be the source of recommendations for further regulation, or they may be concerned with treaty implementation, or they may have other functions. Additionally, some treaty bodies also have a responsibility for supervising compliance with the treaty regime, but this is not a necessary feature of a law-making agreement.271

In general, effective treaty institutions are those which combine political direction and inclusive, transparent, informed decision-making processes with the availability of technical, financial and capacity-building support for developing state parties from UN specialized agencies, the GEF, or developed states.272 In all these respects environmental treaties have been notably innovative. Not all such bodies have been a success, however. Some lack a wide enough remit, or sufficient resources. In a few cases they have been unable to ensure the full participation of all the states most closely concerned. Rather than any failure to ensure compliance with agreed standards of environmental protection, MEA institutions are most likely to fail when seeking consensus on the more stringent measures that may be needed to tackle environmental problems effectively. Such bodies are often open to the criticism that their decisions represent only the lowest common denominator of agreement: the climate change regime considered in Chapter 6 and the Conventions on toxic chemicals considered in Chapter 8 are good examples. Those failings are the product of political choice, or the lack of adequate political commitment, rather than of inherent institutional weakness. In that respect they are no different from the UN, or from any of the other political institutions considered earlier in this chapter.

Thus, a commitment to a multilateral approach may in some cases prove an obstacle to stronger action. The IMO, whose record was considered above, is perhaps the best current example of this phenomenon. The true role of such bodies may in some cases be closer to legitimation of policies acceptable to the relevant industry than to acting as a trustee for the interests of the environment. For the same reasons, it does p. 88not follow that replacing the present fragmented structure of treaty supervision with a single global environmental organization would necessarily improve the effectiveness of international environmental regimes. As one experienced participant observes, ‘each IEA [international environmental agreement], regardless of how superficially similar, develops its own unique sense of what is politically possible’.273

5(2) Autonomous Treaty Bodies

Two principal models of governance are found in the majority of MEAs. One consists of regular meetings of the parties, with institutional continuity usually provided by a permanent secretariat.274 This model is adopted by the 1985 Ozone Convention and the 1992 Climate Change Convention (see Chapter 6), the 1972 London Convention (see Chapter 8), the UNEP Regional Seas Conventions (see Chapter 8), the 1959 Antarctic Treaty,275 and the 1973 CITES (see Chapter 12). The alternative approach is to establish a commission in which member states are represented. This model is employed by the 1974 and 1992 Paris Conventions and the Helsinki Convention on the Protection of the Baltic Sea (see Chapter 8) the 1976 and 1999 Rhine Conventions (see Chapter 10) and, as we shall observe in Chapter 13, it is common in the case of multilateral fisheries or marine living resources treaties, including the 1980 Convention for the Conservation of Antarctic Marine Living Resources (‘CCAMLR’) and the 1946 ICRW.

The International Joint Commission (‘IJC’) established by the US and Canada in the 1909 Boundary Waters Treaty represents a third model, unique among environmental bodies in exercising quasi-judicial functions and having a composition independent of its member governments.276 It is noteworthy, however, that these states have been reluctant to allow the IJC to perform a truly regulatory role, probably because of its independent structure. In all other cases considered in this work the regulatory body, whether a meeting of the parties or a commission, is in substance no more than a diplomatic conference, and the existence in some cases of a separate legal personality does not alter the reality that these institutions are in no sense independent of their member states.277 This is not necessarily a weakness, however. Because the development of regulatory standards and further measures is essentially a political task, entailing adoption and implementation by governments, in practice it can only be performed by an intergovernmental body with appropriate negotiating authority. The idea of an ‘independent’ regulatory agency in this context is thus an unhelpful analogy.

This does not mean that questions of structure and process are unimportant.278 Several general considerations apply. First, community interests will only be protected p. 89if the right community of interest is defined. Institutions whose membership is too narrowly drawn are more likely to legitimize pollution or the over-exploitation of resources than to tackle them. Secondly, transparency is an essential ingredient if these institutions are to be made responsive to a wider community. That may, thirdly, entail a greater willingness to facilitate NGO participation, and to publish reports and findings. Fourthly, decision-making within treaty bodies must be inclusive and effective. Majority voting will not necessarily achieve either objective. Fifthly, the problem of ‘free-riders’—states whose non-participation may undermine the effectiveness of the regulatory regime—needs to be addressed in some fashion. Finally, scientific recommendations, verification and review of national reports and environmental data, compliance procedures and inspection regimes will not be successful if the subsidiary bodies which carry them out do not have a measure of independence from the political organs. These functions must be carried out with objectivity and detachment and the institution must therefore be structured in such a way as to facilitate this goal.279

(a) Membership

The effectiveness of treaty bodies is significantly affected by their composition. A crucial question is whether membership is limited to those who benefit from the activity or resource in question, as in the consultative meetings of the Antarctic Treaty system and most regional fisheries agreements, or whether membership is drawn from a wider category including those who may be adversely affected by the activity in question. Examples of the latter are the 1972 London Convention Consultative Meeting, and the IWC, which any state may join.280 Both of these bodies now contain a preponderance of members opposed respectively to dumping and whaling and this has greatly facilitated gradual progress towards the decision to phase out dumping and impose a moratorium on whaling, despite inconclusive scientific evidence in both cases. These are institutions in which community pressure is arguably at its strongest because of their broadly drawn membership and because they have allowed significant NGO involvement at meetings of the parties: they have substantially answered the question who may speak for the global commons in their respective areas of competence, and can be regarded as bodies which have fulfilled a fiduciary role on behalf of the environment. Up to a point the same could be said of the 1985 Ozone and 1992 Climate Change Conventions and their associated protocols.281

Where membership and functions are too narrowly defined the wrong states may then address the issues from the wrong perspective. One of the reasons for the ineffectiveness of fisheries commissions is that their membership is drawn exclusively from those states participating in the exploitation of a particular area or stock. As Koers has observed, ‘such restrictions on membership may also result in the organization becoming an instrument to further the interests of its members rather than p. 90as an instrument to regulate marine fisheries rationally’.282 Despite radical changes made by the 1995 UN Fish Stocks Agreement, the right to participate in a regional fisheries agreement remains limited to ‘states having a real interest in the fisheries concerned’.283 The same problem affects the ITTA and commissions on land-based sources of marine pollution. Only timber producing and consuming states may join the former.284 In the latter case a regional approach is dictated both by geopolitical considerations and the special ecological needs of enclosed or semi-enclosed seas,285 but it has the effect of leaving environmental protection in the hands of those whose economic and industrial activities would be most affected by high standards or strict enforcement of pollution controls. What is lacking in these cases is a constituency of outside states able to speak for the environmental interests of a wider community. For this reason, some regional seas treaties now combine responsibility for pollution control and ecosystem protection, as envisaged by Article 194(5) of the 1982 UNCLOS.286

In spite of difficulties in their practical operation, there are advantages in a regional approach to some environmental issues. Such arrangements facilitate policies and rules appropriate to the needs of particular areas. Political consensus may be obtainable at a regional level which could not be achieved globally. Cooperation in enforcement, monitoring, and information exchange may be easier to arrange. These advantages are recognized in a number of treaties, including the 1982 UNCLOS, whose environmental provisions assume the need for appropriate regional action. But it is important not to overlook the weaknesses of many regional regimes, or the benefits to be derived from ensuring that such regimes are structured within a framework of minimum global standards with some oversight and supervision at global level. Chapter 8 shows clearly the benefits of coordinating regional action within a global framework such as the 1972 London Convention, and the limitations of leaving the problem to regional solutions alone, as in the case of land-based sources of marine pollution.

(b) NGO participation

Non-governmental organizations play an increasingly important role in environmental treaty bodies.287 NGOs can turn the fear of adverse publicity into a weapon for putting pressure on states to agree stricter standards or ensure better compliance. p. 91The climate regime in particular has witnessed unprecedented levels of civil society involvement, with a staggering 22,000 observers attending the Copenhagen Climate Conference in 2009. Some studies have suggested that this sizeable civil society involvement has exerted some influence on the evolution of the climate regime.288

There is now widespread provision for NGOs qualified in relevant fields to be accorded observer status at meetings of the parties to MEAs.289 While there is no general right to observer status, and some treaties continue to exclude NGOs,290 the usual empowering formulation presumes admission unless at least one third of member states object.291 Unusually, relevant NGOs have a right to take part in the meetings of regional fisheries bodies by virtue of Article 12 of the 1995 UN Fish Stocks Agreement, but there is no comparable provision in the 1997 UN Watercourses Convention.

NGOs serve four main functions as participants in MEA institutions.292 First, although they cannot vote as full members, their observer status allows them in many cases to make proposals, to influence other parties, and to join actively in the negotiating process. Their influence on policy in the development of treaty regimes such as 1973 CITES and the 1992 Climate Change Convention has been substantial, often more so than the contribution of many states. Secondly, NGOs can to some extent further the interests of public participation and transparency in decision-making by treaty bodies. The 1998 Aarhus Convention recognizes the importance of NGOs in this respect.293 Thirdly, NGOs may be a source of technical and scientific expertise, and for that reason are sometimes given observer status or even full membership in advisory committees established by several treaties.294 Fourthly, NGOs such as Greenpeace have on some occasions helped monitor implementation and compliance p. 92with treaty commitments by exposing, for example, illegal nuclear waste dumping in the Barents Sea.295 However, one study concluded that NGOs perform this function only rarely.296

(c) Transparency

The functionalist view of transparency visible in national law-making is equally relevant to international law-making: it has become an indispensable element of legitimacy and accountability.297 This is partly a consequence of wider participation, but it also reflects a significant change in the way governments and international organizations view their role as international law-makers. Transparency is perceived as an essential ingredient if these institutions are to be made responsive to a wider public. That entails a willingness to facilitate NGO participation, to make information available, and to publish reports and findings. Quite apart from the publicity generated by press reporting and NGOs, international organizations and treaty secretariats put enormous amounts of material into the public domain via websites. Transparency of this kind can be seen as enhancing both the effectiveness of MEAs and the legitimacy of international regulatory institutions in exercising responsibility for global environmental governance. It is notable, for example that the GEF was restructured in accordance with principles of ‘universality, transparency and democracy’.298

The importance of transparency is recognized in at least two important treaties which lay down general principles. Article 12 of the 1995 UN Fish Stocks Agreement requires that states ‘shall provide for transparency in the decision-making process and other activities of…fisheries management organizations.’ The 1998 Aarhus Convention commits UNECE member states to ‘promote the application of the principles of this Convention in international environmental decision-making processes and within the framework of international organizations in matters relating to the environment’.299 Some treaties provide for reports to be made public, while only a few insist on the maintenance of confidentiality.300 However, there is remarkably little identifiable international law underpinning this rather significant constitutional development. It is easy enough to identify the principle that law-making should be transparent. It is harder to translate this conclusion into something an international lawyer can work with.

(d)p. 93 Regulatory decision-making

The form in which detailed environmental rules and standards are adopted varies widely. In some cases new treaties may be required. As we have seen, the Antarctic Treaty system has extended its regulatory scope mainly in this way. Other treaties provide for the negotiation of protocols to lay down detailed standards. The 1979 LRTAP Convention and the 1985 Ozone Convention have relied on this method.301 In some treaties specific technical standards are found in annexes: the 1973/78 MARPOL Convention regulates various aspects of pollution from ships in this way. These annexes can easily be amended by a vote of the parties in the IMO without having to amend the treaty itself. The 1982 UNCLOS indirectly incorporates regulations drawn from IMO regulatory treaties among the category of ‘generally accepted international rules and standards’ to which Part XII refers.302 More informal methods of rule-making, such as recommendations, resolutions, codes of practice, and guidelines all fall into the category of soft law but they are nevertheless an important means by which states undertake further measures of treaty implementation. The legal status of these instruments was considered in Chapter 1.

Whether formally binding or not, all of these various methods of rule-making have in common that no obligation may be imposed on any state without its consent. Differences exist in the manner in which this is achieved. Where consensus is required for any decision, as in the climate change regime, or in the listing of additional chemicals in the 1998 Rotterdam Convention on Prior Informed Consent, one state can block the adoption of a new treaty, protocol or amendment by expressing its opposition.303 Where consensus is not required for decisions to be taken, a two-thirds or three-quarters majority vote of the parties will typically be enough for the adoption of decisions. The benefit of the consensus model is that it allows complex, comprehensive and inclusive agreements to be negotiated, relying on the politics of interdependence that characterizes regulation of world trade, the oceans, or the global environment. As with the UNCED and UNCLOS III conferences, the consensus negotiating procedure generates a greater need to engage in diplomacy, to listen, and to bargain than would be the case when decisions are taken by majority vote.304 Every state or group of states has to be accommodated in this process—none can be ignored. Powerful states cannot simply dictate what should be in an agreement without risking ultimate breakdown. This explains the influence of the Alliance of Small Island States (‘AOSIS’) during the UNFCCC negotiations, but also the need to keep the US on board. The consensus negotiating model does not always facilitate agreement, however: if the compromises necessary to engineer consensus cannot be reached then nothing will be agreed, and p. 94some way must be found to overcome that outcome, as the failure of the 2009 Climate Change Conference in Copenhagen so spectacularly demonstrated.

Whether to join in a consensus is thus a potentially delicate decision. A state that refuses to do so may find itself ignored, as Bolivia was during the climate negotiations in Cancun, or it may be part of a tiny minority if it forces matters to a vote, a position in which the US sometimes finds itself. But if the participation of that state is essential to the deal under discussion then other states may have no option but to keep negotiating if stalemate is to be avoided. Any climate negotiations would be pointless unless the US, China, and India, the largest greenhouse gas emitters, are part of the deal. The difficulty of bringing them on board is one of the reasons why negotiation of the 2015 Paris Agreement took so long, and why that agreement says so little of substance.305

However adopted, entry into force of new agreements or amendments will normally follow only if enough states then decide to ratify or accede. This often slow ‘opt-in’ process can be a serious impediment to law-making, since, as we saw in Chapter 1, states which fail to ratify will not be bound. An alternative approach relies on tacit consent or non-objection to bring amendments to technical annexes into force within a set time-limit. This method of amendment reverses the normal procedure and is now widely used for annexes to treaties such as the 1973/78 MARPOL Convention, the 1989 Basel Convention, the 1973 CITES, the 2001 Stockholm Convention on Persistent Organic Pollutants (‘POPS Convention’) and most fisheries conventions, since it enables schedules of protected species, prohibited substances, or conservation regulations to be changed speedily as circumstances require. The procedure has enabled parties to the 1973 CITES to list and de-list protected species easily and regularly.306 The success of the parties to the 1972 London Convention and the 1989 Basel Convention in progressively adopting stricter standards leading to the elimination of hazardous waste exports for dumping at sea or disposal in developing countries shows how in the right conditions substantial changes can come about within the terms of an existing treaty.307 Although states still remain free to opt out of these measures if they object within the prescribed time limit, the onus is on them to do. In many cases simple inertia operates in favour of stronger regulation covering more states than an opt-in procedure would capture.

Inertia does not always work, however. Much depends on the politics of each treaty body. A willingness to object has enabled a small number of whaling states to delay or opt out of proposals adopted by large anti-whaling majorities in the IWC.308 For the same reason some fisheries commissions have had difficulty setting appropriate catch quotas.309 The so-called ‘Turbot war’ in 1994 between Canada and Spain resulted from the abuse by the European Community of its power to object to quotas set under p. 95the 1978 Northwest Atlantic Fisheries Convention.310 In an attempt to overcome this problem the 1995 UN Fish Stocks Agreement now requires parties to regional fisheries agreements to ‘agree on decision-making procedures which facilitate the adoption of conservation and management measures in a timely and effective manner’.311 Any failure to do so in respect of fishing for straddling or highly migratory fish stocks on the high seas could be dealt with by the FAO or the UN General Assembly recommending international minimum standards which become binding under Article 10.312

The 1987 Montreal Protocol shows that a more radical approach to the problem of regulatory opt-outs is possible. Combined majorities of industrialized and developing states are empowered to amend standards set by the protocol for production and consumption of controlled ozone-depleting substances.313 Once adopted, these adjustments are automatically binding on all parties to the protocol. Withdrawal from the protocol is then the only option left for those states which find such an amendment unacceptable. The result is to make isolated opposition to majority decisions as difficult and costly as possible. In practice such opposition is pointless and it has never been necessary to adopt amendments using this procedure. However, the 1987 Montreal Protocol precedent is unique among environmental agreements.314

(e) Non-participants

Treaties or regulations adopted under them cannot bind states which refuse to participate in the treaty.315 In order to tackle this potential challenge to the universality of major global environmental agreements, various techniques have been employed to minimize non-participation or objection. Diplomatic and economic pressure applied by other states may help to make objectors comply with majority decisions; such pressure was successfully used by the US to persuade Japan to accept the whaling moratorium adopted by the IWC in 1982. Japan has remained in the 1946 ICRW ever since. Through the Marine Mammal Protection Act, the High Seas Driftnet Fisheries Enforcement Act, the Packwood-Magnuson and Pelly amendments to its fisheries laws, and the Sea Turtle Conservation amendments to the Endangered Species Act, the US has made extensive use of trade restrictions to enforce compliance with international conservation agreements, or with its own national conservation objectives.316 Unilateral measures of this kind will not always be consistent with international trade agreements, however, nor are they endorsed by Principle 12 of the 1992 Rio Declaration.317 But the Shrimp-Turtle case shows that where Article XX of the GATT p. 96can be invoked, and the other party refuses to negotiate, trade sanctions aimed at encouraging treaty participation remain permissible in accordance with GATT rules.318

Other forms of pressure or persuasion have also been built into some treaty regimes: in effect a mixture of carrots and sticks.319 The 1985 Ozone and 1992 Climate Change Convention and the 1992 CBD, and their protocols, employ trust funds, technology transfer provisions, and other capacity-building measures in order to encourage participation by developing states. All of these agreements use ‘common but differentiated responsibility’ to place fewer burdens on developing states. The 1992 CBD goes further than most such agreements in encouraging participation. It seeks to provide resource-rich developing countries with additional economic incentives through the sharing ‘in a fair and equitable way’ of the benefits arising from the utilization of genetic resources.320 In much the same way the 1982 UNCLOS was widely ratified by developing states because of the benefits from deep seabed mining and the exclusive economic zone which at one time it appeared to offer them. Non-participants thus deprive themselves of whatever potential benefits any of these treaties may provide.

Some treaties also impose constraints on non-parties. Trade with non-parties is restricted under the 1987 Montreal Protocol, the 1989 Basel Convention, the 1973 CITES, and the 1946 ICRW. Article 10 of the 1980 CCAMLR allows its Commission to put pressure on non-parties whose activities affect implementation of the Convention. This attempt to involve non-parties is a distinctive feature of the Antarctic Treaty system, but it is probably too limited in scope and insufficiently supported by acquiescence to constitute an assertion of jurisdiction or to create an objective regime binding on all states.321 However, parties to the 1995 UN Fish Stocks Agreement must now participate in regional fisheries agreements such as 1980 CCAMLR if they wish to continue high seas fishing,322 and even non-parties to such regional agreements must comply with their rules and may be subject to compulsory dispute settlement under Part XV of the 1982 UNCLOS if they refuse to cooperate.323

5(3) International Resource Management Bodies

Exceptionally, a small number of international institutions perform functions more appropriately described as international resource management. Their responsibilities include protection of the environment but they differ from other treaty bodies in that p. 97the right of individual states to exploit the resource is subordinated to the authority of collective decision-making. These institutions thus possess stronger powers than is normally the case, since exploitation may take place only with their prior consent and subject to rules some of which are established by qualified majorities which bind all participants. The most prominent example is the International Seabed Authority (‘ISA’), designed as a means of implementing the concept of the common heritage of mankind which the 1982 UNCLOS applies to deep seabed mineral resources.324

The ISA is concerned only with exploration for and exploitation of deep seabed mineral resources; earlier proposals to include management of high seas fisheries and protection of the whole marine environment within its mandate were not pursued.325 More recently it has been suggested that it might take on the role of regulating access to and conservation of deep seabed biological resources and bio-prospecting, although that would probably require an amendment of the Convention or an implementing protocol.326 Article 157 of the 1982 UNCLOS provides that the ISA ‘…is the organization through which States Parties shall…organize and control activities in the [deep seabed ] Area, particularly with a view to administering the resources of the Area.’ No exploitation of these resources may take place outside the control and administration of this body, which is given the duty to adopt appropriate rules, regulations, and procedures for ensuring effective protection of the marine environment.327 Although seabed mining is carried out by companies sponsored by member states, the Convention as amended in 1994 also provides for the ISA to enter into joint ventures with mining companies, so there is some potential for a conflict of interest with its role as a regulator.328

The ISA comprises several elements, including the Assembly, a political organ consisting of all member states, to which other organs of the authority are responsible. Its approval is necessary for the adoption of regulations governing exploitation and exploration of the deep seabed, including environmental protection measures, and it also approves arrangements for the equitable sharing of benefits derived from seabed activities. The second component is the Council, a small executive body reflecting a balance of geographical, political, and economic groupings, whose functions are, inter alia, to establish specific policies, to supervise and coordinate the implementation of the Convention’s provisions on the deep seabed, to approve proposed plans p. 98for exploration and exploitation, and to make recommendations to the Assembly.329 Both bodies are empowered to take decisions on most questions by qualified majority, although in a few instances consensus is required (e.g. amendments to Part XI of the Convention).330

For reasons partly of political, economic, and ideological opposition, internationalized management of natural resources has had a troubled history. Establishment of the International Seabed Authority was only possible following reforms agreed in the 1994 Implementation Agreement intended to reduce its bureaucratic complexity and possible expense. The very similar Antarctic Mineral Resources Commission (‘AMRC’) was stillborn, following French and Australian opposition to the Convention for the Regulation of Antarctic Mineral Resource Activities (‘CRAMRA’),331 which never entered into force. CRAMRA was replaced in 1991 by the Antarctic Protocol, which bans all Antarctic mineral resource activities for fifty years, designates Antarctica as a natural reserve, and lays down new rules for the protection of the Antarctic environment and the management of activities in Antarctica.332 However, the 1991 Antarctic Protocol creates no management institutions with distinctive powers comparable to those of the AMRC or the ISA. A Committee on Environmental Protection is established, within the framework of the Antarctic Treaty Consultative Meetings, but it performs only the usual supervisory and regulatory functions associated with other environmental treaty institutions. Although a case can still be made for regarding Antarctica as part of the ‘common heritage’ of mankind,333 managed by the Consultative Parties to the 1959 Antarctic Treaty under a form of international trusteeship, regulatory ‘measures’ under the 1991 Antarctic Protocol can only be adopted, or the Protocol amended, by unanimous agreement.334 Thus, although the 1991 Antarctic Protocol otherwise establishes a strong environmental regime, application of the Treaty’s unanimity requirement to decision-making by the parties leaves Antarctica in quite a different category from the ISA.

The significance of international management for environmental protection and resource conservation is that it represents a model of international trusteeship which, p. 99by taking away from individual states’ control over resource allocation and regulation of the environment, overcomes the two central problems confronting the more limited regulatory and supervisory institutions established under other treaties. Crucially, it substitutes an obligation to comply with majority decisions for an obligation merely to cooperate in reaching decisions. As Wijkman points out, the latter type of voluntary agreement under which international fisheries commissions have typically operated has proved economically inefficient in utilizing common property resources or arresting the ‘tragedy of the commons’. He concludes that: ‘When many governments share a resource, the management authority must be given power to determine harvesting limitations unilaterally and to enforce the observance of national quotas allocated within this general limit’.335 If this cannot be achieved, it may be preferable to remove the resource from a common property regime entirely, as has now happened for fish stocks falling within the exclusive economic zone.336 A similar inability to make international control of the high seas environment fully effective has also resulted in the transfer to coastal states of pollution jurisdiction in the exclusive economic zone.337 However, as we shall see in Chapters 9 and 12, it is not clear that this transfer has been wholly successful.

Proposals to give the UN Trusteeship Council responsibility for management of the global commons were not adopted at UNCED and no other UN body has a mandate to manage common areas on behalf of the international community. Thus the ISA remains a uniquely powerful resource management and environmental regulatory body within its very specific and limited sphere.

5(4) International Regimes: Conclusions

There has plainly been a need for improvements in environmental treaty regimes, which themselves represent a pragmatic attempt to find workable answers to difficult problems affecting many states with diverse and competing interests. The essential modesty of what has been achieved falls well short of international management of the global environment and remains heavily dependent on progress by consensus. Measures of the type considered earlier in this chapter may increase the costs of isolated opposition to majority decisions, but they cannot guarantee either participation or adherence to treaty regimes by all states. Resort to soft-law techniques only partially resolves this dilemma, since there may be no obligation to comply. The more radical alternative of allowing majorities of states to impose regulations on dissenting minorities is at variance with the philosophy of consent on which the international legal order is based and would accentuate the problem of democratic legitimacy in international governance. Nevertheless, the problem of dissentient minorities must be p. 100addressed if environmental protection regimes are to deliver common rules and implement collective policies followed by all states.338 It is for this reason that the tentative steps towards majority decision-making in the 1987 Montreal Protocol and more extensively in Part XI of the 1982 UNCLOS remain of particular significance, since they eliminate opt-outs and increase the likelihood of more stringent standards being adopted and enforced. It is notable, however, that no subsequent MEA has followed these precedents. For the rest, consensus decision-making or ad hoc opt outs continue to be the preferred options.

Improving and measuring the performance of environmental treaty bodies was an item on the UNCED agenda in 1992. The conference considered the facilitation of wider participation, especially by developing countries, the provision of better financing arrangements, and improvements in the rule-making and amendment procedures.339 We have seen in this chapter that, although there have been improvements, some of those issues remain under discussion. Perhaps the most important development, however, has been the creation of a growing number of non-compliance procedures. These are considered further in Chapter 4.

6 Scientific Organizations

Many intergovernmental organizations and treaty bodies have established their own scientific advisory committees; depending on the quality of the science these can provide vital input into environmental policy-making.340 A number of international bodies exist specifically to provide independent scientific advice and research on matters of environmental importance.341 The value of most of these bodies is that they represent ‘a diversity of knowledge and expertise’,342 and provide an independent or neutral source of publicly accessible data. Scientists cannot be expected to take policy decisions that are ultimately the responsibility of politicians; rather their role as experts is ‘to refine problem definition and to identify and expand the range of response options’, setting out uncertainties, assumptions, and the probable consequences of action or inaction.343

p. 101One of the most active is the International Council for Exploration of the Seas (‘ICES’).344 ICES was founded informally by scientists in 1902 but put on a treaty basis in 1964. It is open to any state approved by its members, though its scope is limited to the Atlantic Ocean and adjacent seas. Its aim is to promote, encourage, and organize research and investigation for the study of the sea, especially its living resources, and to disseminate the results. It has a coordinating, not a managerial or law-making, role but gives advice on request or by formal agreement to such bodies as the FAO, IMO, UNESCO, WHO, UNEP, the EU, the North-East Atlantic Fisheries Commission, and the Helsinki and Paris Commissions. It has interpreted its mandate broadly to cover not only fisheries but also pollution from various sources. It can make recommendations, drawing attention to management and legislative needs, indicating whether species or pollutants should be added to regulatory annexes. The Antarctic Treaty system generally makes use of the Scientific Committee on Antarctic Research (‘SCAR’), an independent scientific NGO, to provide advice.345

UNESCO’s Intergovernmental Oceanographic Commission (‘IOC’) is also active in structuring and coordinating marine scientific research projects and has increasingly involved developing countries in joint research programmes.346 It is notable that the US and United Kingdom (‘UK’), even when they withdrew from UNESCO, continued to participate in and support the work of the IOC. Scientific research is conducted at the regional level through intergovernmental commissions, such as those dealing with land-based pollution, pollution from dumping and fisheries discussed in later chapters. The IOC works closely with an inter-agency Group of Experts on the Scientific Aspects of Marine Pollution (‘GESAMP’) whose reports have provided invaluable information on the state of the marine environment.347

Other non-governmental groups providing independent, authoritative advice include the International Council for Science (‘ICSU’) which has various environmental programmes and has cooperated inter alia with the WMO, UNEP and UNESCO in scientific studies relating to climate change and in organizing scientific conferences calling for policy decisions from governments.348 The ICSU is also prominent in the provision of scientific advice to the Antarctic Treaty system, through the SCAR. The Intergovernmental Panel on Climate Change (‘IPCC’), an independent scientific body established by UNEP and the WMO, now has the principal responsibility for scientific assessment of climate change science and policy.349 Climate change deniers have sought to undermine the IPCC’s credibility, and in response it has strengthened the robustness of its peer review process. As Ghaleigh observes, ‘while…the COP was under p. 102no binding obligation to follow IPCC recommendations, UNFCCC decision-making processes de facto regarded the IPCC as singular in its expertise, independence and legitimacy.’350 The IPCC’s ‘remarkable success’351 has prompted the establishment in 2010 of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (‘IPBES’) which has been entrusted to assesses the state of biodiversity and of the ecosystem services in response to state requests.

7 Non-Governmental Organizations

7(1) Role of NGOs in General

Some of the earliest NGOs were formed to protect birds, the first in 1867. In the US the Sierra Club was founded in 1892. The movement to save whales began at the 8th International Zoological Congress in 1910.352 NGOs continue to play an important role in contemporary environmental governance.353 This is evident in the presence of many NGOs at the 1992 UNCED and in the references to NGOs in Agenda 21.354 NGOs have influenced the development of international environmental law, whether by promoting or opposing particular initiatives, but not all were established purely for purposes of environmental protection. Japanese fishermen’s unions have attended IWC meetings alongside conservationist NGOs. Organizations representing oil companies and the car industry are as active as environmentalist NGOs at meetings of the parties to climate change treaties.

By allowing alternative views distinct from those of states to be heard, NGO participation can be seen as democratizing and helping to legitimize the processes of international law-making.355 In some cases NGOs have provided an effective voice because of their freedom from governmental control and ability to influence public opinion and supranational bodies. Increasingly they have networked their activities, and since the adoption of Agenda 21 their presence at UN conferences on the environment and development has become institutionalized.356 At the same time some NGOs may be little more than self-appointed elites from developed states, addressing a limited range of issues, and unresponsive to the broader compromises required by any p. 103modern society. There is no guarantee that the views expressed by even high-profile environmental NGOs are representative, nor do they command the democratic legitimacy which most governments can rightly claim.357

NGOs’ aims and activities are diverse and so is their impact on the real world. Some are international professional bodies, usually in the scientific field, such as the ICSU; some have exclusively educational or research purposes, such as the World Resources Institute. Others are campaigning organizations advocating particular courses of action, such as Friends of the Earth International, Greenpeace International, the International Fund for Animal Welfare (‘IFAW’), and the WWF. Most of the major international environmental NGOs are headquartered in developed states, but their regional and national offices play an increasingly important role in developing countries.

Despite the prevalence of NGOs in UN fora, participation falls within the discretion of each organization or treaty body, and no general principle can be identified.358 In accordance with Article 71 of the UN Charter, ECOSOC defines the terms on which NGOs whose mandates are ‘in conformity with the spirit, purposes and principles of the UN Charter’359 may be accorded consultative status with the UN. Inter alia they must have a democratically adopted constitution, representative structure, appropriate mechanisms for ensuring accountability to members and transparent decision-making processes.360 Different categories of NGO status determine the level of participation.361 The practice of most UN specialized agencies, such as the IMO and FAO, is similar: NGOs participate in meetings as observers only if they are concerned with matters within the competence of the relevant organ or organization. NGO participation remains controversial in the IAEA and WTO, due to opposition from some member states.362

7(2) International Union for the Conservation of Nature

The IUCN is not an NGO but it merits special mention in this section because of its broad environmental mandate and hybrid character. Founded in 1948, the diversity of its membership is unique, comprising over 200 governmental agencies, over 1100 national and international NGOs, and some 10,000 experts. As such it is neither p. 104exclusively intergovernmental nor wholly non-governmental in character. Of particular note is the IUCN Environmental Law Centre, which performs advisory activities and, together with the FAO and UNEP, maintains the ECOLEX database, a repository of information on environmental law. The Species Survival Commission oversees the compilation of the IUCN Red List of Threatened Species, one of the most comprehensive information sources on the conservation status of species and subspecies, highlighting those threatened with extinction.

IUCN’s hybrid character has helped it to play a catalytic role in initiating or supporting new legal developments. It perceived the need to link environment and development and prepared the IUCN/WWF/UNEP World Conservation Strategy.363 IUCN was also instrumental in drafting the World Charter for Nature.364 It did preparatory work on the 1992 CBD and the Earth Charter proposed for UNCED, and contributed to the negotiation of the 1971 Convention on Wetlands of International Importance, the 1972 World Heritage Convention, the 1973 CITES and the 1979 Convention on Conservation of Migratory Species of Wild Animals.365 As an international organization IUCN also has the ability to participate in ICJ or ITLOS advisory proceedings if requested.366 This makes it unique among international environmental organizations but, as a mainly expert body, IUCN tends to avoid politically controversial cases.

IUCN’s most ambitious but so far unsuccessful undertaking has been the drafting of an International Covenant on Environment and Development, a detailed and comprehensive attempt to codify and progressively develop international environmental law.367 A less ambitious attempt to synthesize international environmental law in a binding treaty (‘Global Pact for the Environment’) was launched by IUCN and UNEP in 2018, but negotiations ended without success a year later. The Global Pact resembled what the WCED attempted when international environmental law was in its infancy.368 Many of the states and NGOs most supportive of global environmental initiatives were lukewarm. It always seemed unlikely that this idea would advance the subject.

8 Conclusions

In his book, On Global Order, Hurrell refers without much enthusiasm to the ‘technocratic and interest-driven literature on global governance.’369 Much of that literature focuses on process rather than outcomes. Hurrell prefers to emphasize ‘the need to p. 105capture shared and common interests, to manage unequal power, and to mediate cultural diversity and value conflict.’370 From that perspective the core question in concluding this chapter is whether 25 years after the first Rio Conference the institutional structure of global environmental governance is still an important part of the problem. Has it addressed our shared and common interest in saving the planet from environmental catastrophe? Despite successive attempts at reform, it is probably still true that the UN and its agencies have not generated a system of governance that is well suited to synthesizing environmental and developmental goals, a fusion that UNCED identified as the key issue in the achievement of sustainable development.371 But as we saw when assessing proposals for a global environmental organization, what really matters is whether better institutional structures would generate better environmental outcomes. That is far from obvious.372 Climate change, the health of the oceans, and loss of biodiversity on a global scale continue to worsen despite the effort devoted to institutional and policy reform, but these are complex problems any system of global governance would struggle with, however structured. If the system as a whole has failed, the most convincing explanations in the following chapters are that key environmental problems have not been given sufficient priority, or the measures agreed have been too weak, not that global governance institutions have been inadequate.

Anyone who compares the 1st edition of this book (1992) with the present text cannot fail to observe that there is a great deal more international environmental policy and law today than 25 years ago and it is much more sophisticated than it was then. Much of that law and policy has been negotiated and developed in the UN, its specialized agencies, and treaty conferences. Whatever the perceived imperfections of the UN system as a whole, it has not been idle or unproductive if measured by this record. What UNCED and subsequent conferences have produced is a set of policies and tools for achieving the goal of sustainable development in the long term. Much depends, as always, on the political will of states to use these tools effectively. As Hurrell and Kingsbury have pointed out, ‘It would be wrong to assume … that the universal rhetoric of ecological interdependence translates readily into effective international action.’373 The debate on the green economy at UNCSD has shown signs that the international community is increasingly aware of the inherent non-sustainability of present economic development patterns. The question remains: can the world do enough to remedy these problems before it is too late? This a profound political and economic challenge; it seems likely that only at the margins might the solutions lie in further international institutional reform.

Since the Rio Conference sustainable development has provided a unifying concept for the utilization of natural resources and the integration of environment and development, but it nevertheless requires concrete political action if it is to be implemented as p. 106envisaged in the 2015 SDGs. In Chapter 3 we will explore further the contours and legal implications of the concept, as well as the 1992 Rio Declaration’s codification and development of certain principles of international law relating to sustainable development and environmental protection. We will see that from a legal perspective sustainable development is as much about process as about outcomes. Integration, environmental impact assessment, access to information and public participation in policy formation and environmental governance are among the more important elements of that process.374 Nevertheless, it is worth repeating the obvious point: process without substance risks merely legitimizing unsustainable outcomes. Giving real substance to the environmental elements of the sustainable development goals thus matters. Later chapters will show that while much of value has been achieved, much remains to be done if the global environment is to survive in anything like its present form.

Notes

  • * We are grateful to Dr Annalisa Savaresi, University of Stirling, for her contribution to revising this chapter.

  • 1 Commission on Global Governance, Our Global Neighbourhood (Oxford, 1995) 2–4. For a succinct account of ‘governance’ in international relations see Toope, in Byers (ed), The Role of Law in International Politics (Oxford, 2000) 94–9, and generally Hurrell, On Global Order (Oxford, 2007) esp. Ch 9. In relation to the environment see in particular Sand, Lessons Learned in Global Environmental Governance (New York, 1990); Young, Demko and Ramakrishna, Global Environmental Change and International Governance (Dartmouth, 1991); Haas, Keohane and Levy (eds), Institutions for the Earth: Sources of Effective Environmental Protection (Cambridge, Mass, 1993); Winter (ed),Multilevel Governance of Global Environmental Change (Cambridge, 2006); Axelrod, VanDeveer, Downie (eds) The Global Environment: Institutions, Law, and Policy (Washington, 2011) Chs 15; Kötze, Global Environmental Governance (Cheltenham, 2012).

  • 2 Our Global Neighbourhood, 4; Roberts and Kingsbury (eds), United Nations, Divided World (2nd edn, Oxford, 1993) 14–17.

  • 3 Roberts and Kingsbury, United Nations, Divided World, 16–17, and see generally, Our Global Neighbourhood, 2–6 and Hey, in Bodansky, Brunnée and Hey (eds), Oxford Handbook of International Environmental Law (Oxford, 2007) 750–69.

  • 4 Churchill and Ulfstein, 94 AJIL (2000) 623, at 658–9, and see infra, section 5.

  • 5 Kingsbury, Krisch and Stewart, 68 Law & Cont.Problems (2005) 15.

  • 6 See infra, section 4 (4).

  • 7 See generally Dunoff, in Bodansky, Brunnée and Hey, Handbook of IEL, 85–106.

  • 8 See infra, section 4 (3).

  • 9 See infra, section 4 (5).

  • 10 See generally Boyle and Chinkin, The Making of International Law (Oxford, 2007) Ch 3.

  • 11 Infra, section 3(3). UNEP is now known as ‘UN Environment’.

  • 12 Membership of IUCN is open both to governments and non-governmental bodies: see infra, section 7(2).

  • 13 UNCED Agenda 21, Ch 37, para 9. See infra, section 4(7).

  • 14 Brunnée and Toope, 39 Columbia JTL (2000) 19. See also Brunnée, 15 LJIL (2002) 1, 6, and id, Legitimacy and Legality in International Law (Cambridge, 2010). The arguments in Bodansky, 93 AJIL (1999) 596, have general relevance. See also Charlesworth and Coicaud (eds), Fault Lines of International Legitimacy (Cambridge, 2010) Chs 13.

  • 15 See Boyle and Chinkin, The Making of International Law, Ch 2, and infra, sections 5 and 7.

  • 16 Reparations for Injuries Case, ICJ Reports (1949) 174.

  • 17 See infra, Chs 7 and 9, respectively.

  • 18 For a succinct account see Baldwin and McCrudden (eds), Regulation and Public Law (London, 1987) 9–12, and literature at 333–4.

  • 19 Toope, in Byers (ed), The Role of Law in International Politics, 96.

  • 20 Commission on Global Governance, Our Global Neighbourhood, 253–60; and Boyle and Chinkin, The Making of International Law, Ch 2. On NGO participation in the work of international organizations see infra, section 7. Higgins, Problems and Process: International Law and How We Use it (OUP, 1994) Ch 3, argues strongly that discussion of the ‘subjects’ of international law is outmoded and should be replaced by ‘participants’. On participation by individuals see 1998 Aarhus Convention, and 1989 ILO Convention No.169 Concerning Indigenous and Tribal Peoples, infra, Ch 5.

  • 21 Haas, in Bodansky, Brunnée and Hey (eds), Handbook of IEL, 791; Szasz, in Joyner (ed), The UN and International Law, 34–5; Slaughter, 76 Foreign Affairs (1997) 183; Walker, Intimations of Global Law (Cambridge, 2015) 42–54.

  • 22 1989 Basel Convention, Rept. of 6th COP, UNEP/CHW.6/40 (2003) para 21.

  • 23 For examples see infra, sections 5(2) and 7.

  • 24 The arguments reviewed in Bodansky, 93 AJIL (1999) 596, have general relevance.

  • 25 Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Helsinki, 1989) and Allott, Eunomia (Oxford, 1990) exemplify the opposing arguments in a much more sophisticated form. See also Toope, in Byers (ed), The Role of Law in International Politics, 99–104; Roberts and Kingsbury, United Nations, Divided World, Ch 1; Alvarez, International Organizations as Law-makers (Oxford, 2005) Chs 5 and 6.

  • 26 The literature is too extensive to cite but see in particular Brunnée and Toope, 39 Columbia JTL (2000) 19; Franck, Fairness in International Law and Institutions (Oxford, 1995).

  • 27 A number of seminal books had stimulated awareness, including Carson, Silent Spring (New York, 1962); Commoner, The Closing Circle (New York, 1971); Falk, This Endangered Planet (Toronto, 1971); Meadows et al, The Limits to Growth (London, 1972).

  • 28 Development and Environment: Report and Working Papers of Experts Convened by the Secretary-General of the United National Conference on the Human Environment, Founex, Switzerland, 4–12 June 1971.

  • 29 The Report of the Conference on the Human Environment, together with the Action Plan, is found in UN Doc. A/CONF. 48/14/Rev. 1 (1972). For a full account see Caldwell, International Environmental Policy (3rd edn, Durham NC, 1996) Chs 2 and 3.

  • 30 Reports of the Preparatory Committee relevant to the Declaration are in UN Doc. A/CONF. 48/PC 9, 13 and 17. The Final Report of the Working Group on the Declaration is in UN Doc. A/CONF. 48/14/Rev. 1/Annex II. See Sohn, 14 Harv. ILJ (1973) 423.

  • 31 See infra, section 3(3).

  • 32 See infra, Ch 5, section 2.

  • 33 See infra, Ch 3, section 2 (2).

  • 34 See infra, Ch 3, section 5.

  • 35 See infra, Ch 6 (air pollution), Ch 7 (radioactive pollution), Ch 8 (toxic substances), Ch 9 (pollution from ships) and Ch 10 (pollution of watercourses).

  • 36 See infra, Chs, 9, 11, 12.

  • 37 No comparable provisions were included in the 1992 Rio Declaration: see infra, section 2(2).

  • 38 See infra, Chs 4, 5, 6, 7, 8 and 9.

  • 39 World Conservation Strategy: Living Resource Conservation for Sustainable Development (1980) prepared by the IUCN in collaboration with UNEP, the WWF, the FAO and UNESCO; see also the updated version prepared for the UNCED, Caring for the Earth: A Strategy for Sustainable Living (1991).

  • 40 WCED, Our Common Future (Oxford, 1987); see also report of the WCED’s Legal Expert Group on Environmental Law, in Munro and Lammers (eds), Environmental Protection and Sustainable Development (London, 1986). See generally Ginther, Denters and De Waart (eds), Sustainable Development and Good Governance (Dordrecht, 1995) esp. Ch by Matsui; Schrijver, Sovereignty over Natural Resources (Cambridge, 1997) esp. Ch 4; Bugge and Voigt (eds), Sustainable Development in International and National Law (Groningen, 2008) esp. Chs 1 and 2, and see infra, Chs 3 and 11.

  • 41 UNGA Res 44/228 (1989). On the negotiations and the conference see Campiglio et al (eds), The Environment after Rio (London, 1994); Spector, Sjöstedt, Zartman (eds), Negotiating International Regimes: Lessons Learned from the UNCED (London, 1994); Johnson (ed), The Earth Summit (London, 1993); Sand, 3 YbIEL (1992) 3; Freestone, 6 JEL (1994) 193; ‘Symposium: UNCED’, in 4 Colorado JIELP (1993) 1ff; and report in 22 EPL (1992) 204–225.

  • 42 See Bodansky, Yale JIL (1993) 451, 471–92.

  • 43 See Beijing Ministerial Declaration on Environment and Development, UN Doc. A/CONF.151/PC/85 (1991); South Centre, Environment and Development: Towards a Common Strategy of the South in the UNCED Negotiations and Beyond (Geneva, 1991); Mensah, in Campiglio et al, The Environment after Rio (London, 1994) 33–54.

  • 44 Bodansky, Yale JIL (1993) 451.

  • 45 On the UNCED negotiations see references cited infra, Ch 3, fn 45.

  • 46 Sand, 8 J Nat Resources & Env L (1992) 209, at 9–10.

  • 47 UNGA Res 47/191 (1992) para 4 (c).

  • 48 Section 1(2).

  • 49 UN, Report of the UN Conference on Environment and Development I, UN Doc. A/CONF.151/rev.1 (1992) [‘UNCED Report’]. Agenda 21 is so called because implementation of the plan would extend well into the 21st century.

  • 50 UNGA Res 44/228 (1989) at 12.

  • 51 Proposal for an International Convention on Conservation and Development of Forests, FAO Committee on Forestry, 10th Session, Rome, 24–8 September 1990, FAO Doc COFO-90/3(a).

  • 52 UNCED, Report I (1992), 480. See Palmer, 70 Wash ULQ (1992) 1005, at 1020; Schally, 4 YbIEL (1993) 30; Tarasofsky (ed), Assessing the International Forests Regime (IUCN, 1999).

  • 53 A revised Non-Legally Binding Instrument on All Types of Forests was adopted in 2007: see UNGA Res 62/98 (2007). It is now known as the UN Forest Instrument.

  • 54 UN, Report of the WSSD, UN Doc. A/Conf.199/20 (2002) Resolution 1 and Annex. See Beyerlin and Reichard, 63 ZAÖRV (2003) 213–38. For background see Dodds (ed), Earth Summit 2002 (London, 2001).

  • 55 UN Millennium Declaration, UNGA Res 55/22 (2000) para 7. See also World Summit Outcome Document, UNGA Res 60/1 (2005) para 16; and Galizzi, 29 Fordham ILJ (2006) 952–1008.

  • 56 UNGA Res 64/236 (2010) para 20(a).

  • 57 Ibid.

  • 58 See generally Morgera and Savaresi, 22 RECIEL (2012) 14 and other articles in this special issue of RECIEL.

  • 59 UNEP, Global Green New Deal (Nairobi, 2009) and UNEP, Towards a Green Economy: Pathways to Sustainable Development and Poverty Eradication (Nairobi, 2011); OECD, Towards Green Growth (Paris, 2011); and World Bank, Inclusive Green Growth (Washington, 2012).

  • 60 Morgera and Savaresi, 22 RECIEL (2012) 14, at 22–24.

  • 61 Earth Negotiations Bulletin, Summary of the First PREPCOM for the UN Conference on Sustainable Development: 17–19 May 2010, at 5.

  • 62 UNCSD, The Future We Want, UN Doc A/CONF.216/L.1 (2012) and UNGA Res 66/288 (2012) Annex. For analysis, see Morgera and Savaresi, 22 RECIEL (2012) 14.

  • 63 The Future We Want, para 56.

  • 64 Ibid, para 62.

  • 65 Ibid, para 84, and see infra, section 3(2)(c).

  • 66 Ibid, para 83, and see infra, section 3(2)(c).

  • 67 Ibid, para 88; and UNGA Res 67/213 (2012). See infra, section 3(3).

  • 68 Ibid, paras 246 and 248.

  • 69 Transforming our World: the 2030 Agenda for Sustainable Development, UNGA Res 70/1 (2015).

  • 70 The Future We Want, para 283. In preparation for WSSD, UNGA Res 56/226 encouraged ‘global commitment and partnerships, especially between Governments of the North and the South, on the one hand, and between Governments and major groups on the other.’

  • 71 See e.g. Voigt, Sustainable Development as a Principle of International Law: Resolving Conflicts Between Climate Measures and WTO Law (Leiden, 2009).

  • 72 Barral, 23 EJIL (2012) 377, at 388.

  • 73 Pulp Mills Case, ICJ Reports (2010) 14, at 177. See infra, Ch 3, section 2.

  • 74 WCED, Our Common Future, at 43.

  • 75 Annex II to UNEP GC decision 15/2, May 1989; Thacher, in Hurrell and Kingsbury (eds), The International Politics of the Environment: Actors, Interests and Institutions (Oxford, 1992) 183–211, 190.

  • 76 UN, Report of the WSSD, UN Doc. A/CONF.199/20 (2002) Resolution 1, para 5.

  • 77 Transforming Our World: the 2030 Agenda for Sustainable Development, UNGA Res 70/1 (2015).

  • 78 See infra, Ch 8.

  • 79 See infra, Ch 6.

  • 80 See infra, Chs 9 and 12.

  • 81 SDG 15. See infra, Ch 11.

  • 82 UNGA Res 70/1 (2015) paras 72–91; UNGA Res 71/313 (2017), and see infra, section 3(2)(c).

  • 83 Norichika and Biermann, Governing through Goals—Sustainable Development Goals as Governance Innovation (Cambridge, Mass, 2017).

  • 84 See generally Redclift, Sustainable Development: Exploring the Contradictions (London, 1987); Pearce, Markandya and Barbier, Blueprint for a Green Economy (London, 1989); Jacobs, The Green Economy (London, 1991); Reid, Sustainable Development (London, 1995); Moffat, Sustainable Development: Principles, Analysis and Policies (London, 1995) esp. Ch 3; Goldin and Winters (eds), The Economics of Sustainable Development (OECD, Cambridge, 1995); Dresner, The Principles of Sustainability (2nd edn, London, 2008); Neumayer, Weak Versus Strong Sustainability (4th edn, Cheltenham, 2013); Dernbach and Cheever, 2 Transnational Env L (2015) 247; Helm, Natural Capital: Valuing the Planet (London, 2016).

  • 85 Helm, Natural Capital: Valuing the Planet, 14–15.

  • 86 1992 Rio Declaration, Principle 3, and see Brown-Weiss, In Fairness to Future Generations (Dobbs Ferry, NY, 1989).

  • 87 WCED, Our Common Future, 44–5; 1992 Rio Declaration, Principle 5.

  • 88 See infra, section 4 (7).

  • 89 1992 CBD, Articles 12, 15, 16, 19, infra, Ch 11; 1992 Convention on Climate Change, Articles 4 (2) and (3) infra, Ch 6.

  • 90 1992 Rio Declaration, Principle 7, and see infra, Ch 3, section 4 (3).

  • 91 1992 CBD, Article 20 (4); and 1992 Convention on Climate Change, Article 4 (7); 2015 SDGs 1 and 2 and UNGA Res 70/1 (2015): Transforming Our World: the 2030 Agenda for Sustainable Development.

  • 92 Helm, Natural Capital: Valuing the Planet, 8, 40, and see infra, Ch 3, section 2.

  • 93 Pearce, Markandya and Barbier, Blueprint for a Green Economy, at 5; Helm, Natural Capital: Valuing the Planet, 54–62.

  • 94 Op cit, 8.

  • 95 OECD, Towards Green Growth, at 9; ten Brink, The Economics of Ecosystems and Biodiversity for National and International Policy Makers (IIEP, 2009)

  • 96 See Neumayer, Weak Versus Strong Sustainability; Bosselmann, in Alam et al (eds), Routledge Handbook of IEL (Abingdon, 2013) Ch 37; Dernbach and Cheever, 2 Transnational Env L (2015) 247.

  • 97 Jacobs, The Green Economy, 60.

  • 98 See infra, Ch 11, section 3(2).

  • 99 Ibid

  • 100 See infra, Ch 11.

  • 101 2015 SDGs 13–15.

  • 102 UNDP, Human Development Report 2013: The Rise of the South: Human Progress in a Diverse World (New York, 2013) at 1.

  • 103 UNEP, Global Environmental Outlook 5: Summary for Policy Makers (Nairobi, 2012) at 6. See also infra, Chapter 11, and UN reports cited there.

  • 104 UNEP, Towards a Green Economy, at 2.

  • 105 Helm, Natural Capital: Valuing the Planet, 63.

  • 106 See Roberts and Kingsbury, United Nations, Divided World, 1.

  • 107 ICJ Reports (1949) 174, at 180.

  • 108 On the interpretation of these articles see Simma et al (eds), The Charter of the United Nations: A Commentary (3rd edn, Oxford, 2012).

  • 109 See infra, section 4(2).

  • 110 See Werksman (ed), Greening International Institutions (London, 1996); White, The Law of International Organisations, Ch 10; Desai, Institutionalizing International Environmental Law (Ardsley, 2004) Ch 5.

  • 111 Infra, section 4.

  • 112 Infra, section 4(5).

  • 113 Infra, sections 4(6) and (8).

  • 114 ICJ Reports (1996) 66 (WHO) and 226 (UNGA).

  • 115 UN Charter, Article 7. The others are the Trusteeship Council, the ICJ and the Secretariat.

  • 116 UN Charter, Article 10. See generally Peterson, The General Assembly in World Politics (London, 1986); id, in Weiss and Daws (eds), The Oxford Handbook on the UN (Oxford, 2007) Ch 5.

  • 117 On the UN’s general contribution to international law see Joyner (ed), The United Nations and International Law (Cambridge, 1997) and on the environment see Birnie, in Roberts and Kingsbury, United Nations, Divided World, Ch 10.

  • 118 See infra, Chs 3 and 10.

  • 119 Via the UN Forum on Forests and the Non-Legally Binding Instrument on All Types of Forests, UNGA Res 62/98 (2007). For another example see UNGA Res 59/25 (2004) which gives directions on fisheries policy to FAO, IMO and UNEP.

  • 120 See infra, section 4.

  • 121 UNGA Res 44/225 (1989); 45/197 (1990); 46/215 (1991); 59/25 (2004). See Rothwell, in Shelton (ed), Commitment and Compliance (Oxford, 2000) 121–145.

  • 122 Consisting of the UN, FAO, IMO, UNEP, UNCTAD, International Labour Organization (‘ILO’), and OECD. See UN Doc A/59/63 (2004) Rept of the Consultative Group on Flag State Implementation.

  • 123 UNGA Res 47/190 (1992) and 48/191 (1993).

  • 124 See infra, Ch 3, section 2(3).

  • 125 See e.g. the renegotiation of regional seas agreements after 1992, infra, Ch 8.

  • 126 UN Charter, Articles 23–5, 27, 41–2.

  • 127 For differing views of the limits to Security Council powers see chapters by Gowlland-Debbas and Nolte in Byers (ed), The Role of Law in International Politics (Oxford, 2000) and generally Alvarez, International Organizations as Law-makers (Oxford, 2005) 184–217.

  • 128 UNSC resolutions 1373 (2001) and 1540 (2005) and see generally Boyle and Chinkin, The Making of International Law, Ch 3, section 4.

  • 129 Lockerbie Case (Provisional Measures) ICJ Reports (1992) 114, para 42; UN Charter, Article 103, and commentary in Simma (ed), The Charter of the United Nations (3rd edn, Oxford, 2012).

  • 130 But compare Bianchi, 13 EJIL (2002) 263.

  • 131 Timoshenko, in Weiss (ed), Environmental Change and International Law (Tokyo, 1992) Ch 13; Elliott, in Chambers and Green (eds), Reforming International Environmental Governance: from Institutional Limits to Innovative Reforms (Tokyo, 2005); Hulme, 20 YbIEL (2010) 41; Boyle, in Cassese (ed)Realizing Utopia (Oxford, 2012) 172. For contrary views see Szasz, in Brown Weiss, Environmental Change and International Law, 359–361; Tinker, 59 Tennessee LR (1992) 787.

  • 132 Szasz, loc cit, 359.

  • 133 UNSC Res 687. See infra, Ch 4, section 2.

  • 134 Gray, in Rayfuse and Scott (eds), International Law in the Era of Climate Change (Cheltenham, 2012) 219. For a comprehensive treatment of the UNSC’s potential with respect to climate change see Scott and Ku (eds), Climate Change and the UN Security Council (Cheltenham, 2018) esp. Ch 6.

  • 135 Caron, 87 AJIL (1993) 552; Szasz, 96 AJIL (2002) 901, but contrast Sato, in Coicaud and Heiskanen, The Legitimacy of International Organisations (Tokyo, 2001) 327–9.

  • 136 UN Charter, Articles 55, 62. See generally Rosenthal, in Weiss and Daws, Oxford Handbook on the UN, Ch 7.

  • 137 Chambers and Green (eds), Reforming International Environmental Governance, 35.

  • 138 The Future We Want, para 83.

  • 139 UNGA Res 68/1 (2013).

  • 140 The Future We Want, para 84; UNGA Res 67/203 (2012); UNGA Res 67/290 (2013).

  • 141 UNGA Res 70/299 (2016).

  • 142 UN Charter, Articles 64, 71.

  • 143 See Birnie, 20 Melb ULR (1995) 80–93.

  • 144 UNGA Res 2997 (XXVII)(1972).

  • 145 UNEP Governing Council, Introductory Statement by the Executive Director (11 February 1975) UNEP/GC/31; UNEP/GC/31/Add.1; UNEP/GC/31/Add.2; UNEP/GC/31/Add.3.

  • 146 See Tarasofsky in Chambers and Green (eds), Reforming International Environmental Governance, 66; Desai, Institutionalizing International Environmental Law, 166–88; Kimball, Forging International Agreements: Strengthening Intergovernmental Institutions for Environment and Development (Washington, 1992); Szasz, in Brown Weiss (ed), Environmental Change and International Law (Tokyo, 1992) 340; Thacher, in Hurrell and Kingsbury (eds), The International Politics of the Environment, 183; Sand, Lessons Learned in Global Environmental Governance (Washington DC, 1990).

  • 147 See Birnie in Roberts and Kingsbury (eds), United Nations, Divided World, 373–9

  • 148 UNCED Agenda 21, Ch 38, para H. See also UNGA Res S/19-2 (1997); 1997 Nairobi Declaration on the Role and Mandate of UNEP, adopted by UNEP Governing Council decision 19/1 (1997); UNGA Res 53/242 (1999).

  • 149 Ibid, Ch 38, para H, and UNGA Res 55/198 (2001). See Von Moltke, in Winter (ed), Multilevel Governance of Global Environmental Change (Cambridge, 2006) 409–29; Oberthur in Chambers and Green (eds), op cit, 40–65; Caddell, 22 YbIEL (2011) 37.

  • 150 Tarasofsky in Chambers and Green (eds), Reforming International Environmental Governance, 70.

  • 151 UNCSD, Co-Chairs’ paper ‘The Future We Want: Zero Draft of the Outcome Document,’ 10 January 2012, para 51 sets out the two options.

  • 152 Ibid, para 88; and UNGA Res 67/213 (2012). See also infra, section 3(3).

  • 153 See resolutions adopted at the meetings in 2014, 2016, and 2017.

  • 154 UNEP/Env. Law/2/3 (1991); UNEP/Env.Law/4/4 (2001); UNEP/GC/25/INF/15 (2008).

  • 155 Agenda 21, Ch 38, para H (1)(h); UNGA Res S/19-2 (1997); UNGA Res 53/242 (1999); Desai, 40 Ind JIL (2000) 455. See also the 1997 Nairobi Declaration on the Role and Mandate of UNEP, adopted by UNEP Governing Council decision 19/1 (1997) which refers to ‘international environmental law aiming at sustainable development’.

  • 156 Timoshenko and Berman, in Werksman (ed), Greening International Institutions, at 43.

  • 157 These include the so-called ‘Regional Seas Conventions’, on which see infra, Ch 9; 1979 Convention on the Conservation of Migratory Species of Wild Animals 1979, infra, Ch 11; 1985 Ozone Convention, infra, Ch 6; 1989 Basel Convention, infra, Ch 8; 1992 CBD, infra, Ch 11; 1998 Rotterdam Convention on Prior Informed Consent (in collaboration with the FAO) infra, Ch 8; 2001 Convention on Persistent Organic Pollutants and 2013 Convention on Mercury, infra, Ch 8.

  • 158 These include the 1978 Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States; 1985 Montreal Guidelines for the Protection of the Marine Environment against Pollution from Land-based Sources; 1987 Conclusions on Legal Aspects Concerning the Environment related to Offshore Mining and Drilling Carried Out Within the Limits of National Jurisdiction; 1987 Cairo Guidelines and Principles for the Environmentally Sound Management of Hazardous Waste; 1987 Goals and Principles of Environmental Impact Assessment; 1989 London Guidelines for the Exchange of Information on Chemicals in International Trade; 1995 Global Programme of Action for the Protection of the Marine Environment from Land-based Activities; 2002 Guidelines on Compliance with and Enforcement of MEAs; 2010 Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters.

  • 159 See UNEP, New Directions in Environmental Legislation and Administration Particularly in Developing Countries (Nairobi, 1989) and Environmental Law in the UNEP, 36–40.

  • 160 Supra, Ch 1, section 2.

  • 161 Infra, Ch 9.

  • 162 Infra, Ch 8.

  • 163 Infra, Ch 3, section 7.

  • 164 Tsioumani, 43 EPL (2013) 90.

  • 165 On soft law see supra, Ch 1, section 2.

  • 166 UNEP GC Decision 13/18 (II) (1985).

  • 167 UNEP GC Decision 14/30 (1987) emphasis added

  • 168 On proposals for a new UN environmental agency see Palmer, 86 AJIL (1992) 259; Esty, Greening the GATT: Trade, Environment and the Future (Washington, 1994); Dunoff, 19 Harv ELR (1995) 241, 257–70; Ayling, 9 JEL (1997) 243; Desai, 40 Ind JIL (2000) 455; Charnovitz in Chambers and Green (eds), Reforming International Environmental Governance, 93–123; Desai, Institutionalizing International Environmental Law, Ch 6.

  • 169 The arguments are comprehensively reviewed in Biermann and Bauer, A World Environment Organization (Aldershot, 2005).

  • 170 A point illustrated by the exclusion of aviation and shipping carbon emissions from the 1997 Kyoto Protocol and the Paris Agreement in deference to ICAO and IMO: see Martinez Romera 25 RECIEL (2016) 215.

  • 171 E.g. the WHO, the WMO and the ILO. The work of these bodies is referred to when appropriate in later chapters.

  • 172 The seminal study is Contini and Sand, 66 AJIL (1972) 37.

  • 173 See Kirgis in Joyner (ed), The UN and International Law, 82–88.

  • 174 See Morgera and Savaresi, 22 RECIEL (2012) 14.

  • 175 In 2018 ECLAC adopted an Agreement on Access to Justice, Information and Participation in Decision-making on Environmental Matters: see infra, Ch 5, section 2.

  • 176 Infra, Ch 6.

  • 177 Infra, Chs 3, 5, 6 and 10. For an overview see Schrage et al, 18 YbIEL (2008) 3.

  • 178 Infra, Ch 3, section 7, and Ch 5, section 2(6).

  • 179 Infra, Ch 10.

  • 180 1945 Constitution of the FAO, Article 2.

  • 181 1945 Constitution of the FAO, Article 1,

  • 182 See Dobbert in Schachter and Joyner (eds), United Nations Legal Order (ASIL, 1995) 902.

  • 183 See Dobbert, loc cit, 930–8; Raustiala and Victor, 58 Int Org (2004) 277.

  • 184 See Petit et al, Why Governments Can’t Make Policy: The Case of Plant Genetic Resources (Lima, 2001) 6; Chambers, 6 J World Intellectual Property (2003) 311.

  • 185 International Treaty on Plant Genetic Resources for Food and Agriculture, Article 1.

  • 186 Infra, Ch 11.

  • 187 Savaresi, 9 JHRE (2018) 32.

  • 188 See Edeson, in Boyle and Freestone (eds), International Law and Sustainable Development (Oxford, 1999) Ch 8; Harrison, Making the Law of the Sea (Cambridge, 2011) Ch 9; and infra, Ch 12.

  • 189 E.g. the 2001 International Plan of Action on Illegal, Unreported and Unregulated Fishing. For others see infra, Ch 12, section 3.

  • 190 See Edeson, 22 IJMCL (2007) 485.

  • 191 FAO, State of World Fisheries and Aquaculture (Rome, 2016) 38–45, and see infra, Ch 12.

  • 192 See in particular Edeson, in Boyle and Freestone (eds) International Law and Sustainable Development, Ch 8; Moore, in Hey (ed), Developments in International Fisheries Law, 55ff; Reyfuse, ibid, 107ff; and infra, section 5.

  • 193 Notably Articles 211, 217, 218. See IMO, Implications of the Entry into Force of the UNCLOS for the IMO, LEG/MISC/2 (1997) and Harrison, Making the Law of the Sea (Cambridge, 2011) Ch 6.

  • 194 Article 1, 1948 Convention Establishing the International Maritime Consultative Organization (changed to IMO in 1982) (‘IMO Convention’).

  • 195 IMO Res A297 (VIII)(1973). See de La Fayette, 16 IJMCL (2001) 155.

  • 196 See Gaskell, 18 IJMCL (2003) 155.

  • 197 See M’Gonigle and Zacher, Pollution, Politics and International Law (London, 1979); Tan, Vessel-Source Marine Pollution (Cambridge, 2006) 29–102.

  • 198 Agenda 21, Ch 17.30. See Report of the IMO to the Commission on Sustainable Development, IMO Doc MEPC 37/Inf (1995) and Report on Follow-Up Action to UNCED, MEPC 37/10/1 (1995). On subsequent IMO regulatory developments see Nordquist and Moore (eds), Current Maritime Issues and the International Maritime Organisation (The Hague, 1999); Harrison, Saving the Oceans through Law (Oxford, 2017) Ch 6, and infra, Ch 9.

  • 199 1997 Kyoto Protocol, Article 2(2). See infra, Ch 9, section 4.

  • 200 See infra, Ch 9, section 4.

  • 201 But only the states parties have a vote: see 1973/78 MARPOL Convention, Article 16; 2004 Ballast Water Convention, Article 19.

  • 202 See infra, Ch 9, section 2.

  • 203 See infra, Ch 9, section 8.

  • 204 See e.g. the discussion of the 2004 Ballast Water Convention in Tsimplis, 19 IJMCL (2004) at 444–5.

  • 205 See infra, Ch 9, section 4(3)(d).

  • 206 Gaskell, 18 IJMCL (2003) 172–4; de La Fayette, 16 IJMCL (2001) 213–6; Tan, Vessel-Source Marine Pollution, 34–46.

  • 207 See Hayashi, 16 IJMCL (2001) 501; de La Fayette, 16 IJMCL (2001) 215–20.

  • 208 Gaskell, 18 IJMCL (2003) 212–4.

  • 209 See de La Fayette, 16 IJMCL (2001) 195–6; Frank, 20 IJMCL (2005) 1, 62–4.

  • 210 See infra, Ch 9, section 5(2) and see also Martinez Romera, 25 RECIEL (2016) 215.

  • 211 1956 IAEA Statute. See infra, Ch 7.

  • 212 1994 Marrakesh Agreement Establishing the World Trade Organization.

  • 213 1994 Agreement, Articles 3, 9–10.

  • 214 Article 25(4).

  • 215 Article 9(1).

  • 216 Article 2(1).

  • 217 See Charnovitz, 8 YbIEL 98 (1998) and infra, Ch 13, section 8.

  • 218 2000 Protocol on Biosafety.

  • 219 See especially 1992 Rio Declaration, Principle 12.

  • 220 See Alvarez and others, 96 AJIL (2002) 1–158.

  • 221 See infra, Ch 13.

  • 222 See generally Boyle and Chinkin, The Making of International Law (Oxford, 2007) Ch 3.

  • 223 See in particular Cass, The Constitutionalization of the WTO (Oxford, 2005) who argues against expansion of the role of WTO.

  • 224 World Bank, Articles of Agreement, Article I; Inter-American Development Bank Agreement, Article I; Asian Development Bank Agreement, Article 2. Only the European Bank for Reconstruction and Development has an explicit obligation to promote ‘environmentally sound and sustainable development’: Agreement Establishing the EBRD, Article 1 (vii). See also African Development Bank Agreement, Article 1: ‘The purpose of the Bank shall be to contribute to the sustainable economic development and social progress of its regional members individually and jointly’. See generally Handl, Multilateral Development Banking (The Hague, 2001); Freestone, The World Bank and Sustainable Development (Leiden, 2013).

  • 225 Fox and Brown (eds), The Struggle for Accountability: the World Bank, NGOs and Grassroots Movements (Cambridge, Mass, 1998) 9, citing a WWF assessment.

  • 226 Ibid.

  • 227 See World Bank, 2013 Operational Manual, OP/BP 4.00-37; Di Leva, 4 Laws (2015) 674; Handl, in Krämer and Orlando (eds), Principles of Environmental Law (Cheltenham, 2018) 627–643.

  • 228 See infra, Ch 3, section 7.

  • 229 See Freestone, The World Bank and Sustainable Development (Leiden, 2012) Chs 3 and 7.

  • 230 For the current standards see IFC, Performance Standards on Environmental and Social Sustainability (2012) Overview, para 1, and Performance Standard 1.

  • 231 2012 Performance Standards 3 and 6, at para 2.

  • 232 These include 1979 LRTAP Convention; 1987 Montreal Protocol; 1989 Basel Convention; 1992 CBD; 1992 UNFCCC and 1997 Kyoto Protocol; 1998 Rotterdam Convention on Prior Informed Consent; 2001 Stockholm Convention on Persistent Organic Pollutants. See in particular Performance Standards 3, 4, and 6. See also Morgera, 18 Colorado JIELP (2007) 151.

  • 233 See Pulp Mills Case, ICJ Reports (2010) 14.

  • 234 2012 Performance Standard 1, para 6.

  • 235 2012 Performance Standard 3, paras 4–5.

  • 236 Res 93/10 (1993). See Schlemmer-Schulte, 58 ZAÖRV (1998) 353; Shihata, The World Bank Inspection Panel in Practice (Oxford, 2000); Orakhelashvili, 2 Int Orgs LR (2005) 57; Nurmukhametova, 10 Max Planck YbUNL (2006) 397.

  • 237 See, for example, the Green Climate Fund’s environmental and social management system.

  • 238 The Compliance Advisor/Ombudsman (CAO) is independent of IFC management and reports directly to the President of the World Bank Group.

  • 239 Letter from the UN Human Rights Council to the World Bank President on the World Bank’s draft Environmental and Social Framework, 14 December 2014.

  • 240 1994 Instrument for the Establishment of the Restructured Global Environment Facility, as revised 2002, 2006, 2011, 2015. See generally Freestone, The World Bank and Sustainable Development, Chs 56.

  • 241 Infra, nn 245–6.

  • 242 Werksman, 6 YbIEL (1995) 55–58 reviews the legal status of the GEF.

  • 243 2015 Instrument, para 25(b).

  • 244 2015 Instrument, para 9(a).

  • 245 Werksman, 6 YbIEL (1995) at 60.

  • 246 See infra, Ch 3, section 4 (3).

  • 247 For a detailed assessment see GEF, 5th Overall Performance Study (2014) and Freestone, The World Bank and Sustainable Development, Chs 56.

  • 248 Yamineva and Kulovesi in Hollo, Kulovesi, Mehling (eds), Climate Change and the Law (Berlin, 2013) 191.

  • 249 Climate Policy Initiative, Global Landscape of Climate Finance 2017 (2017) 4.

  • 250 Article 2, OECD Constitution.

  • 251 Infra, Ch 7.

  • 252 OECD, Recommendations C(72) 128 (1972); C(74) 223 (1974) reprinted in OECD, OECD and the Environment, (Paris, 1986) and C(89) 88 (1988). Most of these instruments are collected in OECD, OECD and the Environment (Paris, 1986). See infra, Ch 5, section 4(4).

  • 253 OECD Council Recommendations C (74) 224 (1974); C (77) 28 (1977); C (78) 77 (1978); C (79) 116 (1979). See infra, Ch 5, section 3(2).

  • 254 See infra, Ch 3, section 7.

  • 255 Decision-Recommendation C(88)85 (1988) Provision of Information to the Public and Public Participation in Decision-making Processes related to the Prevention of, and Response to, Accidents Involving Hazardous Substances; Recommendation C(98) 67 (1998) on Environmental Information. See infra, Ch 5, section 2(6).

  • 256 Recommendation C(74)224 on Principles concerning Transfrontier Pollution; OECD, Legal Aspects of Transfrontier Pollution (Paris, 1977).

  • 257 See infra, Ch 3, section 8.

  • 258 Decisions C(83)180 and C(88)90 on Transfrontier Movements of Hazardous Waste. See infra, Ch 8.

  • 259 Recommendation C(2004)100 on Environmentally Sound Management of Waste.

  • 260 See OECD, Environmental Performance Review of OECD Countries (Paris, 1998).

  • 261 OECD, In-depth Evaluation of the Environment Policy Committee, C(2012)14 at 3.

  • 262 OECD, Towards Green Growth (Paris, 2011). For an analysis, see Morgera and Savaresi, 22 RECIEL (2012) at 18.

  • 263 Ibid, 22, para 63.

  • 264 See infra, Ch 3.

  • 265 See Bodansky, The Art and Craft of International Environmental Law (Cambridge, Mass, 2010); Jacur, The Dynamics of Multilateral Environmental Agreements (Naples, 2013); Schiele, Evolution of International Environmental Regimes (Cambridge, 2014) and generally Boyle and Chinkin, The Making of International Law (Oxford, 2007) Ch 4, section 4.

  • 266 Haas, in Bodansky, Brunnée and Hey (eds), Handbook of IEL, 791; Szasz, in Joyner (ed), The UN and International Law, 34–5; Slaughter, 76 Foreign Affairs (1997) 183; Walker, Intimations of Global Law, 42–54.

  • 267 See Rittberger (ed), Regime Theory and International Relations (Oxford, 1993); Slaughter, 87 AJIL (1993) 205; Byers, Custom, Power and the Power of Rules (Cambridge, 1999) Ch 2.

  • 268 For comprehensive studies see Brunnée and Toope, Legitimacy and Legality in International Law (Cambridge, 2010) Ch 4; Bodansky, Brunnée, Rajamani, International Climate Change Law (Oxford, 2017); Yoshida, The International Legal Regime for the Protection of the Stratospheric Ozone Layer (2nd edn, Leiden, 2019) and infra, Ch 6.

  • 269 Churchill and Ulfstein, 94 AJIL (2000) 623; Brunnée, 15 LJIL (2002) 1; Ulfstein, in Bodansky, Brunnée and Hey, Handbook of IEL, 878; French, 21 JEL (2009) 255.

  • 270 Supra, Ch 1, section 2(1).

  • 271 See infra, Ch 4, section 3.

  • 272 See Sand, 56 ZAöRV (1996) 754; Gündling, ibid, 796; Victor, Raustiala and Skolnikoff (eds), Implementation and Effectiveness of International Environmental Commitments, Ch 16; Wettestad, Designing Effective Environmental Regimes (Cheltenham, 1999).

  • 273 Werksman, 6 YbIEL (1995) at 62.

  • 274 See Werksman (ed), Greening International Institutions (London, 1996) Ch 4.

  • 275 See Gautier, in Francioni and Scovazzi, International Law for Antarctica (2nd ed, The Hague, 1996) Ch 2.

  • 276 See infra, Ch 10, section 3(2).

  • 277 But see infra, section 6 on scientific bodies, and Ch 4, section 3 on non-compliance bodies.

  • 278 See Bodansky, The Art and Craft of International Environmental Law, Chs 68, and generally Kingsbury, Krisch and Stewart, 68 Law & Cont. Problems (2005) 34ff.

  • 279 On the role of scientific bodies in MEAs see infra, section 6 and Ch 4, section 3(3).

  • 280 See infra, Chs 8 and 12.

  • 281 See infra, Ch 6.

  • 282 Koers, International Regulation of Marine Fisheries, 126. For a current example see discussion of ICCAT, infra, Ch 12, section 2(3).

  • 283 Article 8(3). See Molenaar, 15 IJMCL (2000) 475. But see also Article 12, which gives NGOs a right to participate.

  • 284 Article 4. See Savaresi, in Morgera and Razzaque (eds), Encyclopaedia of Environmental Law: Biodiversity and Nature Protection Law (Cheltenham, 2017) 203 at 207.

  • 285 See infra, Ch 8.

  • 286 See infra, Ch 9, section 3.

  • 287 See Morgenstern, Legal Problems of International Organisations (Cambridge, 1986) 86ff; Kimball, in Soons (ed), Implementation of the Law of the Sea Convention through International Institutions (Honolulu, 1989) 139; Sands, 30 Harv ILJ (1989) 393; Victor, Raustiala and Skolnikoff (eds), Implementation and Effectiveness of International Environmental Commitments, 664–8; Charnovitz, 18 Mich JIL (1997) 183, and infra, section 7.

  • 288 Savaresi in Francioni and Bakker (eds), The EU, The US and Global Climate Governance (Farnham, 2014); Arts, The Political Influence of Global NGOs: Case Studies on the Climate and Biodiversity Conventions (Utrecht, 1998) at 155; Carpenter, 77 Int Affairs (2001) 313, at 321; Betsill, Hochstetler and Stevis, Advances in International Environmental Politics (Basingstoke, 2005) Ch 7, at 191; Andresen and Gulbrandsen, The Role of Green NGOs in Promoting Climate Compliance (Lysaker, 2003) at 13.

  • 289 See e.g. 1972 World Heritage Convention, Article 8(3); 1973 CITES, Article 11(7); 1979 Migratory Animals Convention, Article 7(9); 1985 Ozone Convention, Article 6(5); 1987 Montreal Protocol, Article 11 (5); 1989 Basel Convention, Article 15(6); 1991 Antarctic Protocol, Articles 11–12; 1991 Convention on the Protection of the Alps, Article 5; 1992 Climate Change Convention, Article 7(6); 1992 CBD, Article 23(5); 1992 Paris Convention, Article 11; 1994 Desertification Convention, Article 22(7); 1995 Agreement on the Conservation of African-Eurasian Migratory Water Birds, Article 7; 1996 Agreement on the Conservation of Cetaceans, Article 3(4). NGO observers have also been admitted to meetings of the parties to the 1946 ICRW and the 1972/1996 London Convention even though there is no specific treaty provision: see Victor et al (eds), Implementation and Effectiveness etc, Chs 10 and 11.

  • 290 See e.g. the 1994 Nuclear Safety Convention.

  • 291 See Article 11(7) of the 1973 CITES and Article 6(5) of the 1987 Montreal Protocol, which are the two principal provisions repeated in many later treaties.

  • 292 See Bodansky, The Art and Craft of International Environmental Law (Cambridge, Mass, 2010) 123–30.

  • 293 Article 3(7). See infra, Ch 5, section 2(6).

  • 294 See e.g. the 1991 Antarctic Protocol, Articles 11–12 (Scientific Committee on Antarctic Research). IUCN is specifically given observer status by several treaties, including the 1972 World Heritage Convention. The 1995 Agreement on African and Eurasian Migratory Water Birds, Article 7, makes it a full member of that agreement’s Technical Committee.

  • 295 See Stokke, in Victor et al (eds), Implementation and Effectiveness etc, 475.

  • 296 Victor et al (eds), Implementation and Effectiveness etc, 667–8.

  • 297 Bianchi and Peters (eds), Transparency in International Law (Cambridge, 2013) especially Boyle and McCall-Smith at 419.

  • 298 1994 Instrument for the Establishment of the Restructured Global Environment Facility, as revised; see supra, section 4(7).

  • 299 Article 3 (7). See Ebbesson, 8 YbIEL (1997) 51, at 57, and infra, Ch 5.

  • 300 Compare 1973 CITES, Article 8 (8) [reports of parties to be made public]; 1991 Antarctic Protocol, Article 11 (5) [reports of the Committee on Environmental Protection to be made public], with 1994 Convention on Nuclear Safety, Article 27 [reports and meetings to be confidential].

  • 301 See infra, Ch 6.

  • 302 See infra, Chs 8 and 9.

  • 303 On the PIC Convention see infra, Ch 8, section 2(2); on the problems faced by the UNFCCC see Boyle and Ghaleigh in Carlarne et al (eds), The Oxford Handbook of International Climate Change Law (Oxford, 2016) Ch 2.

  • 304 See Boyle and Chinkin, The Making of International Law (Oxford, 2007) Ch 3.

  • 305 See generally Boyle and Ghaleigh, op cit, Ch 2, and infra, Ch 6.

  • 306 Sand, 8 EJIL (1997) 29, and see infra, Ch 11, section 3(4).

  • 307 Infra, Ch 8.

  • 308 E.g. the inability of the IWC to persuade Japan to terminate its programme of ‘scientific’ whaling: see Whaling in the Antarctic Case, ICJ Reports (2014) 226.

  • 309 See infra, Ch 12, section 3(3)(d).

  • 310 See Davies, 44 ICLQ (1995) 927.

  • 311 Article 10(j). See infra, Ch 12, section 3(3)(d). For an analysis of what this might mean see McDorman, 20 IJMCL (2005) 423.

  • 312 See infra, Ch 12, section 5(3).

  • 313 Article 2(9) as amended 1990. See infra, Ch 6, section 2.

  • 314 But see also UN Charter, Article 27, which allows the UNSC to adopt binding resolutions on matters of international peace and security by majority vote.

  • 315 1969 VCLT, Article 34.

  • 316 Zoller, Enforcing International Law Through US Legislation (Dobbs Ferry, 1985); Wolfrum, 272 Recueil des Cours (1998) 62–65.

  • 317 Opposition to the adoption of unilateral measures has been reiterated in multiple fora, including in ‘The Future We Want’, paras 26 and 57(h).

  • 318 See United States—Import Prohibition of Certain Shrimp and Shrimp Products (‘Shrimp/Turtle Case’) WTO Appellate Body (1998) WT/DS58/AB/R, infra, Ch13.

  • 319 See generally Wolfrum, 272 Recueil des Cours (1998) 110–145.

  • 320 See 1992 CBD Articles 1, 15(7) 19(1) and (2); 2010 Nagoya Protocol, and infra, Ch 11.

  • 321 On the status of the Antarctic Treaty system against third states see Charney and Brunner, in Francioni and Scovazzi (eds), International Law for Antarctica (2nd edn, The Hague, 1996) Chs 3 and 4. For other examples see the 1978 Convention for Future Co-operation in Northwest Atlantic Fisheries, Article 19; 1982 North Atlantic Salmon Convention, Article 2(3); 1995 UN Fish Stocks Agreement, Article 33.

  • 322 1995 UN Fish Stocks Agreement, Article 8.

  • 323 Infra, Ch 12.

  • 324 Articles 156–70, and Annexes III-IV. These provisions must now be read together with the 1994 Agreement Relating to Implementation of Part XI. See Nandan, in Freestone, Barnes and Ong (eds), The Law of the Sea (Oxford, 2006) Ch 5.

  • 325 See Carroz, 21 San Diego LR (1984) 516–17; Kenya, Draft Articles for the preservation and protection of the marine environment, UN Doc A/CONF. 62/C3/L/2 (1974).

  • 326 See infra, Chs 9 and 12.

  • 327 UNCLOS Article 143; Annex II, Article 17; 1994 Agreement on Implementation, Annex, Section 1.5. On the environmental regulations adopted by the ISA see infra, Ch 9.

  • 328 UNCLOS Article 170 as modified by 1994 Implementation Agreement, Annex, section 2. See ISA, Legal and Technical Commission, Issues relating to the operation of the Enterprise, in particular the legal, technical and financial implications for the Authority and for States parties, ISBA/20/LTC/12 (2014).

  • 329 UNCLOS Article 161, as revised by 1994 Implementation Agreement, Annex, section 3.15.

  • 330 Articles 159(8) [the Assembly] and 161(8) [the Council].

  • 331 1988 CRAMRA, Articles 18–33. See Watts, 39 ICLQ (1990) 169; Stokke and Vidas (eds), Governing the Antarctic (Cambridge, 1996); Wolfrum, The Convention on the Regulation of Antarctic Mineral Resource Activities (Berlin, 1993).

  • 332 Redgwell, 43 ICLQ (1994) 599; Pineschi, in Francioni and Scovazzi (eds), International Law for Antarctica (2nd edn, The Hague, 1996) Ch 9; Francioni (ed), International Environmental Law for Antarctica (Milan, 1992) Ch 1; Vidas (ed), Implementing the Environmental Protection Regime for the Antarctic (The Hague, 2000); Triggs and Riddell (eds), Antarctica: Legal and Environmental Challenges for the Future (London, 2007); Saul and Stephens (eds), Antarctica in International Law (Oxford, 2015).

  • 333 Francioni, in Francioni and Scovazzi (eds), International Law for Antarctica (2nd edn) 9–10, but compare Charney, ibid, 75–80, and Baslar, The Concept of the Common Heritage of Mankind, Ch 7.

  • 334 1991 Antarctic Protocol, Articles 9 and 10, applying Articles 9 (4) and 12 (1) of the 1959 Antarctic Treaty. Even the annexes can only be amended unanimously, unless the annex itself provides otherwise. On the question whether ‘measures’ are legally binding see Gautier, in Francioni and Scovazzi (eds), International Law for Antarctica, Ch 2.

  • 335 Wijkman, 36 Int Org (1982) 511; Koers, International Regulation of Marine Fisheries: A Study of Regional Fisheries Organizations (London, 1973).

  • 336 1982 UNCLOS, Articles 61–70; see infra, Ch 12.

  • 337 1982 UNCLOS, Articles 56, 207–12; see infra, Ch 9, section 5(3).

  • 338 See McDorman, 20 IJMCL (2005) 423 who looks at the problem from the perspective of fisheries commissions.

  • 339 See e.g. Sand, Lessons Learned in Global Environmental Governance (New York, 1990) 6–20; UNCED, The Effectiveness of International Agreements (Cambridge, 1992).

  • 340 See infra, Ch 4, section 3(3).

  • 341 See generally Andresen et al (eds), Science and Politics in International Environmental Regimes (Manchester, 2000).

  • 342 Kimball, Treaty Implementation: Scientific and Technical Advice Enters a New Stage (Washington, 1996) at 7. See also Andresen and Skjaerseth, in Bodansky et al, Handbook of IEL, 183ff.

  • 343 Ibid.

  • 344 1964 Convention for the International Council for the Exploration of the Seas. See Kimball, Treaty Implementation, 187–8.

  • 345 1991 Antarctic Environment Protocol, Articles 11–12.

  • 346 See Bernal, in Nordquist et al (eds), Law, Science and Ocean Management (Leiden, 2007) 21–63.

  • 347 See infra, Ch 9.

  • 348 Kimball, Treaty Implementation, 188–9.

  • 349 UNFCCC, Article 21; 1997 Kyoto Protocol, Articles 3(4) 5, and 10. See Ghaleigh, in Carlarne, Gray and Tarasofsky (eds), The Oxford Handbook of International Climate Change Law, Ch 3, and infra, Ch 6.

  • 350 Ghaleigh, loc cit, 61.

  • 351 Ibid, 70–1.

  • 352 See McCormick, The Global Environmental Movement (London, 1989) esp. 1–24.

  • 353 See Charnovitz, 18 Mich JIL (1997) 183; id, 100 AJIL (2006) 348; Spiro, in Bodansky, Brunnée and Hey, Handbook of IEL, 771–90; Gupta, 63 ZAöRV (2003) 459; Bodansky, The Art and Craft of International Environmental Law, 123–30.

  • 354 UN, Report of the UNCED (New York, 1993) paras 27.9 and 13; and 38, 42–43.

  • 355 Crawford, 64 BYIL (1993) 113; Anderson, 11 EJIL (2000) 91; Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Cambridge, 1995); Reus Smit (ed), The Politics of International Law (Cambridge, 2004) 35; Boyle and Chinkin, The Making of International Law, Ch 2.

  • 356 See e.g. UNGA Res 64/236, paras 21–22.

  • 357 Anderson and Rieff, in Anheier, Glasius and Kaldor (eds), Global Civil Society (London, 2005) 26, 33–35; Boyle and Chinkin, op cit, Ch 2, section 3.3.

  • 358 Boyle and Chinkin, The Making of International Law, at 57, but see Klabbers, Peters and Ulfstein, The Constitutionalisation of International Law (Oxford, 2011) 219–39.

  • 359 ECOSOC, Resolution 1296 (XLIV) 1968.

  • 360 ECOSOC, Consultative Relationship between the United Nations and Non-Governmental Organizations, Resolution 1996/31 (1996).

  • 361 Chinkin, in Norton, Andenas, Footer (eds), The Changing World of International Law in the 21st Century (The Hague, 1998) 48–50.

  • 362 On WTO see Marceau and Pedersen, 33 JWT (1999) 5–20; Esty, 1 J Int Econ L (1998) 123.

  • 363 See infra, Ch 11.

  • 364 Ibid.

  • 365 On all these agreements see infra, Ch 11.

  • 366 See ICJ Statute, Article 66 and Advisory Opinion on Responsibilities of States for Activities in the Area, ITLOS (2011).

  • 367 The 5th edition was published in 2015. On the earlier versions see Robinson, 13 Pace ELR (1995) 133; Boyle and Freestone, International Law and Sustainable Development, Ch 4.

  • 368 For the draft text see https://www.unenvironment.org/events/conference/towards-global-pact-environment. On the WCED Legal Principles see infra, Ch 3, n 3.

  • 369 Hurrell, On Global Order, 2.

  • 370 Ibid.

  • 371 See discussion of ECOSOC, supra, section 3(2)(c).

  • 372 See in particular Kötze, Global Environmental Governance, Ch 1.

  • 373 Hurrell and Kingsbury (eds), The International Politics of the Environment, 47.

  • 374 See Principles 4, 10 and 17, and supra, Ch 3 and infra, Ch 5.

© A. E. Boyle and C. Redgwell 2021