The Development Of International Environmental Law At The .

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The development of international environmentallaw at the Multilateral Environmental Agreements’Conference of the Parties and its validityLouise Kathleen Camenzuli

Reliance on institutional machinery in the form of intergovernmental commissionsand meetings of treaty parties as a means of co-ordinating policy, developing thelaw, supervising its implementation, resolving conflicts of interest and puttingcommunity pressure on individual States, meets these needs much more flexibly andeffectively than traditional bilateral forms of dispute settlement.Institutionalsupervision of this kind has become since 1972 the international community’sprimary model for the regulation and control of environmental risks. No other modeloffers useful solutions to the problem of controlling phenomena of global character,such as global warming or ozone depletion, where no single State’s acts areresponsible and where the interests of all are at stake. 1It is now well understood that many environmental challenges are global in nature. Thisrecognition has led to a proliferation of international legal instruments directed atenvironmental conservation and protection, such as multilateral environmental agreements(MEAs). This paper examines the role of Conferences of the Parties (CoPs) in MEA basedlaw making. It promotes the view that effective international environmental law must bedynamic and responsive to changing environmental conditions and changes in the state ofknowledge on the best measures and methods to deal with the subject matter of MEAs. Inthis context, it is now recognised that while MEAs may set out the basic framework in respectof global environmental matters, treaty based law must be shaped by continuous interactionof member States to provide guidance on, and ensure consistency in, the implementation ofthe MEA in a way that responds to the environmental challenge it seeks to address. It is inthis process that MEA CoPs have and should have law making functions. However, thelegal status of acts and decisions of CoPs is unclear. To date, little consideration has beengiven to the legal personality of CoPs, in particular, whether the exercise of their law makingpowers (if any) are properly conceptualised within the law of treaties and/or withininternational institutional law. This in turn has given rise to questions regarding the validityand legally binding nature of CoP made ‘law’.In this context, this paper reviews existing research on what powers CoPs have to developinternational law. It considers the validity of the exercise of these powers and theimplications of CoP law making for the legitimacy of international environmental law.Through this process of review, several important research priorities are identified that mustbe urgently pursued in view of the significant role CoPs play in providing efficient andeffective responses to serious emerging and pre-existing environmental challenges. Therecent attention to CoP made law and the questions being asked about its legal basis willotherwise result in a significant threat to the legitimacy of international environmental law.1AE Boyle, ‘Saving the World? Implementation and Enforcement of International Environmental Law ThroughInternational Institutions’ (1991) 3 Journal Environmental Law 229 at 230.2

1MEAs, CoPs and the global nature of variousenvironmental challengesRecognition of the inherently global character of many environmental challenges, forexample, climate change and the depletion of the ozone layer, and the global impacts ofthese issues has resulted in the emergence of global regulatory regimes that seek to providean appropriate global response, for example the United Nations Framework Convention onClimate Change (UNFCCC),2 the Convention on the Protection of the Ozone Layer (ViennaConvention),3 and their respective protocols.4 Increasingly, international law is alsoaddressing national or domestic environmental problems of global significance, such asthrough the conservation of biological diversity, protection of natural heritage areas, orpromotion of sustainable development.MEAs, amongst other international legal instruments for the regulation of activities affectingthe environment, form an essential framework for the international community to respond tothese environmental issues and to promote environmental protection and sustainabledevelopment.There are over 500 international treaties and other agreements related to the environment, ofwhich a substantial percentage are multilateral. Over 300 of these agreements have beennegotiated since 1972.5 The core environmental conventions and related internationalagreements are generally divided into five thematic clusters: Biodiversity;6 Atmosphere;7 Land;8 Chemicals and hazardous wastes;9 and Oceans, seas and water.10This broad coverage of MEAs clearly establishes that these legal instruments, if effectivelyimplemented, have an important role to play in international environmental protection. Whilethere are many criticisms regarding the shortcomings of MEAs,11 the reality is that MEAs are2New York, 9 May 1992. Available at: www.unfccc.de/ (12 January 2007).Vienna, 22 March 1985, 1513 UNTS 293.4ndP Birnie & A Boyle (2002) International Law & The Environment (2 edition), Oxford University Press, New York at 7.5Multilateral Environmental Agreements: Summary (UNEP/IGM/1/INF/1). 30 March 2001. Background paper presentedby the Secretariat at the Open-ended Intergovernmental Group of Ministers or their Representatives on InternationalEnvironmental Governance, first meeting. New York, 18 April 2001. Available at:http://www.unep.org/IEG/WorkingDocuments.asp (1 January 2007).6For example, Convention on International Trade in Endangered Species and the Convention on Biological Diversity.7For example, the United Nations Framework Convention on Climate Change and the Vienna Convention for theProtection of the Ozone Layer.8 For example, the United Nations Convention to Combat Desertification in Those Countries Experiencing Drought and/orDesertification, Particularly in Africa.9For example, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and TheirDisposal.10For example, the United Nations Convention on the Law of the Sea. See UNEP, Division of EnvironmentalConventions, ‘Links to Multilateral Environmental Agreements’: http://www.unep.org/dec/links/index.html (1 January2007).11A review of many of these shortcomings can be found in C Bruch ‘MEA Enforcement and Compliance Meeting Bulletin:A Summary Report of the High Level Meeting on Compliance with and the Enforcement of Multilateral EnvironmentalAgreements (April 2006) Ali-Aba Course of Study Materials. Published by the International Institute for SustainableDevelopment. See also P Birnie & A Boyle, note 4 at 11-11533

being used and will continue to be used, at least for the immediate future, as a primaryinternational environmental law making tool, and, therefore, measures to improve theeffectiveness of MEAs should continue to be investigated, including the role of MEA CoPs.Many of the existing MEAs, in particular those post-dating 1972, set up a CoP shortly afterthe MEA came into force. The CoP then meets on a regular basis to, amongst other things,provide guidance on the implementation of the MEA.12The CoP is typically the plenary organ of the MEA.13 For example, Article 7.2 of theUNFCCC states:The Conference of the Parties, as the supreme body of the Convention, shall keepunder regular review the implementation of the Convention and any related legalinstrument that the Conference of the Parties may adopt, and shall make, within itsmandate, the decisions necessary to promote the effective implementation of theConvention.Accordingly, MEA law making processes essentially take place under this institutional core.As the CoPs are freestanding and distinct both from the State parties to a particularagreement and from existing intergovernmental organisations (IGOs), they are generallyconsidered autonomous They are also considered to be autonomous in the sense that theyhave their own law making powers and compliance mechanisms.14 To evaluate the exerciseof CoP ‘law’ making powers and their legal validity, it is useful to have a basic understandingof the genesis of CoPs.2History of the development of the MEA CoPStrong institutional arrangements of MEAs (CoPs, secretariats and one or more specialistsubsidiary bodies) have increasingly become recognised over time as crucial to theireffectiveness. In particular, the lack of proper institutions makes it very difficult to develop,update and adapt MEAs to changing circumstances, which is necessary for two mainreasons:15(a)knowledge of the environmental issues with which MEAs deal is constantlyexpanding; and(b)when an MEA is initially concluded, the parties may reach only limitedpolitical agreement on how to tackle the particular environmental challenge(eg, under framework conventions).16This appreciation of the importance of strong institutional arrangements in aiding theeffectiveness of international agreements informed the series of major MEAs that weredeveloped at and grew out of the 1972 UN Conference on the Human Environment.1712Each meeting of the CoP is numbered (eg, CoP1, CoP2, etc).MEAs adopt different terms to describe their plenary organs, such as ‘meeting of the parties’ (MoPs) or ‘conference ofthe contracting parties’. Unless otherwise indicated, the acronym ‘CoP’ is used generically in this paper to refer to all suchorgans.14See, for example, R Churchill and G Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral EnvironmentalAgreements: A Little-Noticed Phenomenon in International Law’ (2000) 94 American Journal of International Law 623 at623.15See G Palmer, ‘New Ways to Make International Environmental Law’ (1992) 86 American Journal of International Law278 and R Churchill and G Ulfstein, note 14.16For example, the Vienna Convention, United Nations Framework Convention on Climate Change and the Conventionon Biological Diversity.17R Churchill and G Ulfstein, note 114 at 629.134

However, this period coincided with a period of widespread dissatisfaction with traditionalIGOs because of their cost and bureaucratic nature. This in turn resulted in a disinclinationto create new IGOs18 and the alternative CoP model evolved over a period of time.The earliest obvious form of the CoP was that introduced by the Convention on Wetlands ofInternational Importance, Especially as Waterfront Habitat (Ramsar Convention) in 1971.19However, that CoP, as originally contemplated, was given advisory powers only. Article 6 ofthe Convention stated, at the time of introduction of the Convention, that “the ContractingParties shall, as the necessity arises, convene Conferences on the Conservation ofWetlands and Waterfowl” and that these conferences should “have an advisory character”.20In 1987, experience in the working of these conferences and the operation of CoPs in otherMEAs led the parties to amend Article 6 to provide for the establishment of a “Conference ofthe Contracting Parties to review and promote the implementation” of the Convention. Thereference to the advisory character of the conference was deleted.21In the next MEA on the Prevention of Marine Pollution by Dumping of Wastes and OtherMatter (London Convention)22 in 1972, the equivalent of the CoP was much moredeveloped than the Ramsar Convention,23 although it was not given any express power toestablish subsidiary bodies and its powers of supervision were more limited.24The first MEA to use the term ‘Conference of the Parties’ was the Convention onInternational Trade in Endangered Species of Wild Flora and Fauna (CITES)25 in 1973. TheCITES CoP has amongst the broadest powers of the various types of CoPs. The CITESCoP originally lacked the power to adopt financial provisions, but this power was added byan amendment to the Convention in 1979.Churchill and Ulfstein note the significance of the negotiation of the CITES Convention underthe auspices of the United National Environmental Programme (UNEP), unlike the Ramsarand London Conventions.26 The subsequent Conventions, in chronological order, theConvention on the Conservation of Migratory Species of Wild Animals (BonnConvention),27 the Vienna Convention,28 the Convention on the Control of TransboundaryMovements of Hazardous Wastes and Their Disposal (Basel Convention)29 and theMontreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol),30 werealso negotiated under the supervision of the UNEP and all contain the CoP model as theirinstitutional arrangements. Broadly speaking, these Conventions have virtually the samepowers as those of the CITES Convention CoP. The primary Articles of the aboveconventions that set out the powers of their CoPs are extracted and summarised in the tableattached to the end of this paper. The table provides an overview of the current range of18As above.Ramsar, 2 February 1971. Available at: www.ramsar.org/ (12 January 2007); 1971, TIAS No. 11,084, 996 UNTS 245.20Ramsar Convention, note 19, Article 6.21Amendments to Articles 6 and 7 of the Convention on Wetlands of International Importance, Especially as WaterfowlHabitat, 28 May 1987, 1996 UKTS No. 13.221972, 26 UST 2403, 1046 UNTS 120.23This Convention adopted the term ‘Consultative Meetings of the Parties’.24R Churchill and G Ulfstein, note 14 at 629.25Washington, 3 March 1973. Available at: www.wcmc.org.uk/cites/ (12 January 2007).26Note 14 at 630.271979, 1990 UKTS No.87.28Note 3.29Basel, 22 March 1989. Available at: www.unep.ch/basel/index.html (12 January 2007); 1989, 28 ILM 657.30Montreal, 16 September 1987. Available at: www.unep.org/ozone/ (12 January 2007); 1987, 1522 UNTS 293.195

powers of CoPs under various MEAs and their protocols and demonstrates that CoPs arenot all set up the same nor do they have the same breadth of powers.The flexibility of the CoP model and its acceptability to all States means that it is likely tocontinue to be used. Further, despite calls from some commentators,31 both the 1992 UNConference on Environment and Development and its follow up, the 1997 Special Session ofthe UN General Assembly, rejected the idea of creating new intergovernmental institutionsfor the environment.32 Further, while there are also strong arguments in support of theestablishment of a global environmental organization to respond to past inadequacies andlimitations of MEAs,33 at present, even if warranted, such an organization does not appearlikely to emerge in the near future. This is largely because of the implications for sovereigntyand the lack of consensus of the organizational model for such an institution,34 in particular,the extent and parameters of the powers of the institution.35 Accordingly, the roles ofexisting international institutions are now recognised as integral to the development ofinternational environmental law.With this realisation, the powers of international institutions, such as CoPs are evolving toinclude law making functions not previously enjoyed by their predecessors. This will meanincreased scrutiny of the validity of the exercise of these powers and the legal status of CoPlaw. The law making powers of CoPs and other such international organisations that are notsubsidiary organs of the United Nations is an important matter for international environmentallaw making, which has surprisingly received little attention to date.Section 3 of this paper broadly identifies the primary roles of CoPs and section 4 considersthe ways in which CoPs exercise law making powers to develop international law. Section 5then considers the validity of CoP made ‘law’ in the context of current debates regardingwhether CoP law making powers fall within the law of treaties and/or within the law ofinternational institutions with capacity to exercise law making powers. Finally, limitations onthe exercise of CoP law making powers are noted and various recommendations andresearch priorities identified.3631For example, LA Kimball & WC Boyd, ‘International Institutional Arrangements for Environment and Development: APost-Rio Assessment’ (1992) 1 Review of European Commission and International Environmental Law Journal 295; andG Palmer, note 15 at 278-82.32R Churchill and G Ulfstein, note 14 at 630.33See, for example, F Biermann,‘The case for a World Environment Organisation’ (2000) 42 Environment Magazine23-31. Available at: http://www.findarticles.com/p/articles/mi m1076/is 9 42/ai 67319834 (12 January 2007); G Palmer,note 15 at 282; S Silard, ‘The Global Environment Facility: A New Development in International Law and Organisation’(1995) 28 George Washington Journal of International Law & Economics 607; B Lukitsch Hicks, ‘Treaty Congestion inInternational Environmental Law: The Need for Greater International Co-ordination’ (1999) 32 University of Richmond LawReview 1643 at 1661-1662; and JL Dunoff ‘From Green to Global: Toward the Transformation of InternationalEnvironmental Law’ (1995) 19 Harvard Environmental Law Review 241 at 268-271.34F Biermann, note 33, identifies three alternative models.35See, for example, A Steiner, LA Kimball & J Scanlon, ‘Global governance for the environment and the role ofMultilateral Environmental Agreements in conservation’ (2003) 37(2) Oryx 227-237 at 232; D Brack & J Hyvarinen (2000)Global Environmental Institutions: Analysis and Options for Change, Royal Institute of International Affairs, London.Available at: http://www.chathamhouse.org.uk/index.php?id 135 (12 January 2007); D Brack & J Hyvarinen (eds) (2002)Global Environmental Institutions: Perspectives on Reform, Royal Institute of International Affairs, London. Available at:http://www.chathamhouse.org.uk/index.php?id 135 (12 January 2007); and F Biermann, note 33.36The most significant research on the law making powers of international institutions of relevance tot eh paper andidentified by this article in the course of writing is that undertaken by J Brunee, COPing with Consent: Law Making UnderMultilateral Environmental Agreements (2002) 15 Leiden Journal of International Law 1-52; and R Churchill & G Ulfstein,note 14.6

3The roles of CoPsThe roles of MEA CoPs vary in accordance with the terms of the Articles of each Conventionthat establishes a CoP. It is apparent from a review of the resolutions of various CoPs thatthese institutions are integral to change management at the local, national and internationallevel, as without this process of planning, information gathering, participation and awarenessbuilding, the objectives of MEAs would be unlikely to be effectively achieved.37Generally speaking, CoPs exist to: set priorities and review implementation of the Convention based on reportssubmitted by governments; consider new information from governments, NGOs and individuals to makerecommendations to the Parties on implementation; make decisions necessary to promote effective implementation; revise the treaty if necessary; and act as a forum for discussion on matters of importance.38The powers of the CoP are explicitly set out in treaty articles and relate to, for example, theadoption of the rules of procedure, financial regulations and the budget, the establishment ofnew subsidiary bodies, and the provision of guidance to these bodies and the secretariatpowers to develop substantive obligations through various forms of law making and treatyinterpretation, powers to supervise the implementation of and compliance with thoseobligations; on the external plane MEAs have powers to enter into agreements with States,international organisations and the institutions of other MEAs.39 Some MEAs also contain acatchall provision authorizing the CoP to “consider any additional action that may berequired”,40 “fulfil such other functions as may be appropriate under the provisions of thepresent Convention”41 or “exercise such other functions as are required for the achievementof the objective of the

Agreements: A Little-Noticed Phenomenon in International Law’ (2000) 94 American Journal of International Law 623 at 623. 15 See G Palmer, ‘New Ways to Make International Environmental Law’ (1992) 86 American Journal of International Law 278 and R Churchill and G Ulfstein, note 14.