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Multilateral Environmental Treaty-Making

Chapter
Part of the Nijhoff Law Specials book series (Nijhoff Law Specials)

Abstract

Treaties are the most important source of international environmental law,1 and constitute the primary method for creating rules and standards regulating the conduct of States and, indirectly, other actors in the environmental arena. Indeed, “the history of the development of environmental law ... can to a large extent be traced through the history of the conclusion of international agreements concerning environmental issues.”2 Writing in 1991, Weiss estimated that over 900 instruments, multilateral and bilateral, had been concluded in the field3; the report to UNCED on the effectiveness of international environmental agreements examines 124 agreements and instruments, using UNEP’s Register of International Treaties and Other Agreements in the Field of the Environment (1991)4 as its point of departure.5 Treaties can also be an important generator of customary international environmental law norms.6

Keywords

Clean Development Mechanism Kyoto Protocol International Environmental Agreement Vienna Convention Basel Convention 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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References

  1. 1.
    For excellent discussion of the sources of international law from an environmental perspective, see further Patricia W. Birnie and Alan E. Boyle, International Law and The Environment (Oxford/New York, Clarendon Press/Oxford University Press, 1992), at pp. 929; see also Philippe Sands, Richard Tarasofsky and Mary Weiss, Principles of International Environmental Law: Frameworks, Standards and Implementation (Manchester/New York, Manchester University Press, 1995), ch. 4 (“International Law-making and Regulation”); Paul C. Szasz, “International Norm-making” in Edith Brown Weiss (ed.), Environmental Change and International Law: New Challenges and Dimensions (Transnational Publishers, 1992) at pp. 41–80; and M. A. Fitzmaurice, “International Environmental Law as a Special Field” (1994) XXV Netherlands Yearbook of International Law, pp. 181–226. For discussion of “Environmental Law: When Does It Make Sense to Negotiate International Agreements?” see Proceedings of the 87th Annual Meeting of the American Society of International Law (1993), Theme III “International Regimes: Progress and Problems”, at pp. 377–397. See also the 1996 resolution of l’Institut de Droit international on environmental treaty making, Vol. 67-II, Annuaire de l’Institut de Droit international, session de Strasbourg, pp. 514–527.Google Scholar
  2. 2.
    Fitzmaurice, ibid., at p. 187. One feature of this history of treaty-making reveals that, in common with the development of domestic environmental laws, treaty-making in the environmental field initially took a sectoral approach: see A.O. Adede, “Lessons from Twenty Years of International Law-Making in the Field of the Environment” in Alexandre Kiss and Françoise Burhenne-Guilmin (eds.), A Law for the Environment: Essays in Honour of Wolfgang E. Burhenne (IUCN/WCU, Gland/Cambridge, 1994), at p. 1; see also ibid., “International Environmental Law from Stockholm to Rio — an Overview of Past Lessons and Future Challenges” (1992) 22/2 Environmental Policy and Law, pp. 88–105.Google Scholar
  3. 3.
    Edith Brown Weiss, “Environment and Trade as Partners in Sustainable Development: A Commentary” (1992) 86 AJIL, pp. 728–735. Palmer rightly points out that, while international environmental agreements may be impressive in number, the delay in ratification and entry into force, compliance, and the deteriorating state of the global environment, paint a less rosy picture. Geoffrey Palmer, “New Ways to Make International Environmental Law” (1992) 86 AJIL, pp. 259–283, at p. 263.Google Scholar
  4. 4.
    Since 1977, at the request of the United Nations General Assembly, the United Nations Environment Programme has maintained a “Register of International Treaties and Other Agreements in the Field of the Environment”: see http://www.unep.org/ See also Bernd Rüster and Bruno Simma (eds.), International Protection of the Environment: Treaties and Related Documents (30 volumes 1975–1983, Dobbs Ferry NY, Oceana, with subsequent loose-leaf service). The CIESEN/SECAD/NASA maintained Environmental Treaties and Resources Indicators (ENTRI) lists over 170 instruments (which also includes nonbinding instruments, such as OECD guidelines).Google Scholar
  5. 5.
    Peter H. Sand (ed.), The Effectiveness of International Environmental Agreements: A Survey of Existing Legal Instruments (Grotius, Cambridge, 1992). The agreements and instruments examined are listed in an Annex at pp. 501–538.Google Scholar
  6. 6.
    As Handl observes, customary international law has an important role to play here in the introduction of new concepts into international law which may challenge existing concepts, e.g. the challenge to national sovereignty posed by the concept of the common concern of humankind. See further Günther Handl, “Environmental Security and Global Change: the Challenge to International Law”, (1990) 1 Yearbook of International Environmental Law, pp. 3–33.Google Scholar
  7. 7.
    Thus I will not consider here the broader issue of whether there is anything particularly distinctive about environmental treaties, an enquiry which necessarily would require consideration from negotiation through to termination.Google Scholar
  8. 8.
    A point which could equally be made about international law as a whole, viz. as process rather than (merely) rules: see further Rosalyn Higgins,Problems and Process: International Law and Flow We Use It ( Clarendon Press, Oxford, 1994 ).Google Scholar
  9. 9.
    Caldwell observes that “[t]he signing of a treaty customarily completes the first phase of a formalized effort toward institutionalized international environmental cooperation.” Lynton K. Caldwell, “Beyond Environmental Diplomacy: the Changing Institutional Structure of International Co-operation” in John E. Carroll (ed.), International Environmental Diplomacy: The Management and Resolution of Transfrontier Environmental Problems (Cambridge University Press, Cambridge, 1988), ch. 1, at p. 20. See further Oran R. Young, International Governance: Protecting the Environment in a Stateless Society (Cornell University Press, Ithaca NY/London, 1994), at p. 27: “The provisions of international governance systems are ordinarily articulated explicitly in constitutional contracts that may, but need not, be codified in legally binding instruments such as conventions or treaties.”Google Scholar
  10. 10.
    To adopt the contract analysis of Professor Macneil in his critique of traditional contract doctrine’s view of contract-making as a largely one-off event divorced from its social context. See Ian R. Macneil, “Relational Contract Theory as Sociology” (1987) 143 Journal of Institutional and Theoretical Economics, pp. 272–290.Google Scholar
  11. 11.
    Fiona McConnell, The Biodiversity Convention: A Negotiating History. A Personal Account of Negotiating the United Nations Convention on Biological Diversity — and After (Kluwer Law International, London/The Hague, 1996), at p. 151. This analogy of baton-passing within a race is apt to the extent that negotiation, conclusion, implementation and enforcement of a treaty text may be perceived as existing on a continuum. Where the analogy is less apt is in terms of a finish line, for many environmental obligations cannot be defined (nor achieved) in absolute terms given their normative and frequently indeterminate nature.Google Scholar
  12. 12.
    These are regimes with “semi-institutionalized multilateral rule-making frameworks”. The legal regulation of hazardous waste also provides an example of inter-treaty regime building within what Kummer calls “the Basel Convention regime” including, inter alia, the 1972 London (Dumping) Convention and the soft law codes of the IAEA, as well as regional waste regulation: Katharina Kummer, International Management of Hazardous Wastes: The Basel Convention and Related Legal Rules (Clarendon Press, Oxford, 1995).Google Scholar
  13. 13.
    Thomas Gehring, “International Environmental Regimes: Dynamic Sectoral Legal Systems” (1990) 1 Yearbook of international Environmental Law, pp. 35–56, at p.38.Google Scholar
  14. 14.
    As to whether such regimes might be viewed as self-contained, see generally Bruno Simma, “Self-Contained Regimes” (1985) XVI Netherlands Yearbook of International Law, pp. 111–136; and (1994) XXV Netherlands Yearbook of International Law passim, in particular Fitzmaurice, op. cit., n. 1.Google Scholar
  15. 15.
    See for example Andrew Burrell and Benedict Kingsbury (ed.), The International Politics of the Environment: Actors, Interests and Institutions (Clarendon Press/Oxford University Press, Oxford/New York, 1992) (“rules and regimes established to facilitate environmental co-operation”).Google Scholar
  16. 16.
    Winfried Lang, “Diplomacy and International Environmental Law-Making: Some Observations” (1992) 3 Yearbook of International Environmental Law, pp. 108–122, at p. 115; and pp. 117–122 (regime-building).Google Scholar
  17. 17.
    Ibid., at p. 115.Google Scholar
  18. 18.
    A case in point is the 1946 International Convention for the Regulation of Whaling and the various treaty arguments employed by the pro-and anti-whaling lobbies in respect of the interpretation of the Convention: should general rules of treaty law apply or the “internal law and practice” of the parties, which has seen a rise in conservatory attitudes? With this and with other venerable living resources agreements, the issue arises of the extent to which an intertemporal approach may be taken to interpretation of its provisions. These are acute issues particularly given the rapid pace of change under many environmental agreements and the consequent apparent gulf between treaty language and treaty practice.Google Scholar
  19. 19.
    MARPOL 73/78 has six annexes covering different marine pollutants: Annexes I (oil) and II (noxious liquid substances in bulk) are mandatory for any State becoming party to MARPOL 73/78, with further annexes addressed to harmful substances carried in packages (Annex III); sewage (Annex IV); garbage (Annex V) and a sixth Annex, on air pollution from ships, adopted in 1997. The original 1973 Convention was revised in 1978 to facilitate entry into force, hence “MARPOL 73/78”. Whilst MARPOL 73/78 provides the framework for its accompanying annexes, it is the 1982 LOSC which might be viewed as the general framework treaty on protection of the marine environment (Part XII) with MARPOL the specific substantive regulation of pollution from ships.Google Scholar
  20. 20.
    See generally Peter G. G. Davies, “Global Warming and the Kyoto Protocol” (1998) 47 ICLQ, pp. 446–461 and http://www.unfccc.de/Google Scholar
  21. 21.
    In Hurrell and Kingsbury (eds.), op. cit., n. 15, at p. 172.Google Scholar
  22. 22.
    Nine regional regimes have been established under UNEP’s Regional Seas Programme, covering the Mediterranean, Black Sea, Wider Caribbean, Eastern African, Kuwait, Red Sea and Gulf of Aden, South Pacific, South-East Pacific, and West and Central African Regions. For further details see the Yearbook of International Cooperation on Environment and Development 1998/99 (Fridtjof Nansen Institute, Earthscan, 1998) at pp. 118137.Google Scholar
  23. 23.
    See Winfried Lang, op. cit., n.16, at p. 116. Further amendments to the 1987 Protocol have been made, most notably in 1990.Google Scholar
  24. 24.
    The 1984 Protocol on Long-term Financing of the Co-operative Programme for Monitoring and Evaluation of the Long-range Transmission of Air Pollutants in Europe (EMEP); the 1985 Protocol on the Reduction of Sulphur Emissions or their Transboundary Fluxes by at least 30 per cent; the 1988 Protocol concerning the Control of Emissions of Nitrogen Oxides or their Transboundary Fluxes; the 1991 Protocol on the Control of Emissions of Volatile Organic Compounds or their Transboundary Fluxes; the 1994 Protocol on Further Reduction of Sulphur Emissions; the 1998 Protocol on Heavy Metals; and the 1998 Protocol on Persistent Organic Pollutants. For texts see http://www.unece.org/env/lrtap. A further protocol, known as the “multi-effect, multi-pollutant agreement” is under negotiation (1999) which sets new national emission limits on key air pollutants (S02, NH3, NOx and VOCs) to reduce acidification, eutrophication and ozone pollution.Google Scholar
  25. 25.
    LRTAP is a particularly good example of this, with only two of the participating States (Norway and Sweden) initially convinced of the need for stringent reductions in SO2 to prevent acid rain: see further E. Fouéré, “Emerging trends in international environmental agreements” in John E. Carroll, ed., op. cit., n.9, ch. 3, at pp. 35–36; and Marc A. Levy, “European Acid Rain: The Power of Tote-Board Diplomacy”, in Peter M. Haas, Robert O. Keohane and Marc A. Levy (eds.), Institutions for the Earth: Sources of Effective International Environmental Protection (The MIT Press, Cambridge MA/London, 1993), ch. 3, at 76.Google Scholar
  26. 26.
    The Barcelona Convention was amended in 1995: see the Convention for the Protection of the Marine Environment and Coastal Region of the Mediterranean, adopted 10 June 1995, amending the 1976 Convention. Six Protocols have been added to the Convention, addressed to hazardous waste (1996), pollution from continental shelf exploration and exploitation (1994), specially protected areas (1982), land-based pollution (1980), oil and other harmful substances in emergencies (1976) and dumping (1976). The Barcelona Convention has been viewed as a prototype for the other regional seas agreements concluded under UNEP’s regional seas programme, listed at n.22 above. See, generally, Peter H. Sand,Marine Environment Law in the United Nations Environment Programme: An Emergent Eco-Regime ( Tycooly Publ., London/New York, 1988 ).Google Scholar
  27. 27.
    Op. cit., n.25, at p. 76; with LRTAP “out of weakness came strength”. He notes that perhaps only two of the original 30 Contracting Parties to LRTAP considered acid rain an environmental problem, thus underscoring the consensus-building attributes of the treaty.Google Scholar
  28. 28.
    Susskind and Ozawa suggest a further problem — that the lowest common denominator will prevail (or the laggard state problem) — not a problem unique to environmental treaties, of course. Lawrence Susskind and Connie Ozawa, in Burrell and Kingsbury (eds.),op. cit., n.15, at p. 147; see also Lawrence E. Susskind,Environmental Diplomacy: Negotiating More Effective Environmental Agreements ( Oxford University Press, Oxford/New York, 1994 ).Google Scholar
  29. 29.
    See further Geoffrey Palmer, op. cit. n.3; for discussion of institutional proposals see further this author, Intergenerational Trusts and Environmental Protection (Juris/MUP, 1999).Google Scholar
  30. 30.
    See, generally, M.J. Bowman, “The Multilateral Treaty Amendment Process — A Case Study” (1995) 44 ICLQ, pp. 540–559 (with case study of the Ramsar Convention on Wetlands of International Importance).Google Scholar
  31. 31.
    The dumping of waste at sea is one example of a framework convention following specific rectoral/regional regulation. The 1972 London (Dumping) Convention and further regional agreements are to be read in the light of the essentially framework provisions of the 1982 LOSC. There is cross-referencing in the LDC to the (then) forthcoming law of the sea negotiations, whilst Part XII of the LOSC is clearly drafted with reference to existing detailed international and regional treaties on various aspects of marine pollution.Google Scholar
  32. 32.
    As Bowman observes, “Such structures may generate a need for an equally sophisticated array of amendment procedures, differentially tailored according to the levels of obligation.” Op. cit., n.30, at p. 542. A variation on this tiered structure is treaty, annex, appendix and decision. See, for example, the 1992 Convention on the Protection of the Marine Environment of the North-East Atlantic (“OSPAR”), which is a framework treaty with five detailed Annexes and a number of appendices, the latter expressly stated to be of a scientific, technical or administrative nature (Article 14). Separate provisions are included for the amendment of the Convention (Article 15), and for the adoption and amendment of Annexes (Articles 16 and 17) and of Appendices (Articles 18 and 19). The treaty provides for the binding force of decisions where certain procedural requirements are met, namely, after the expiry of 200 days for those parties which voted for the decision and which have not indicated within this period that the decision is no longer accepted (Article 13). De La Fayette observes that the decision route may be used for “indirect amendments of the Convention by a faster and more flexible route than the formal amendment procedure in Article 15.” Louise de La Fayette, “The OSPAR Convention Comes into Force: Continuity and Progress” (1999) 14 International Journal of Marine and Coastal Law, pp. 247–297, at p. 257. The move to prohibit the dumping, and the leaving wholly or partly in place, of disused offshore installations, embodied in Decision 98/3 (in force 9 February 1999), might be viewed in this light.Google Scholar
  33. 33.
    See also ibid. (OSPAR Convention).Google Scholar
  34. 34.
    In addition to the 1959 Antarctic Treaty and the 1991 Environmental Protocol, the Antarctic Treaty System comprises the 1978 Convention on the Conservation of Seals and the 1982 Convention on the Conservation of Antarctic Marine Living Resources. The 1988 Convention on the Regulation of Antarctic Mineral Resource Activities is now defunct in consequence of the 50-year moratorium on Antarctic mineral resource activities embodied in the 1991 Protocol.Google Scholar
  35. 35.
    For further discussion of the Protocol and its annexes, see this author, “Environmental Protection in Antarctica: the 1991 Protocol” (1994) 43 ICLQ, pp. 599–634.Google Scholar
  36. 36.
    Decision 1 (1995) established that legally binding provisions adopted by the ATCPs will be expressed as “measures” whilst “decisions” will regulate internal organizational matters; the format of “resolution” is reserved for purely hortatory texts.Google Scholar
  37. 37.
    The complexity of environmental negotiations may also lead to a considerable lead-in time from initiation through negotiation to the adoption of the treaty text, with a further period elapsing before the entry into force of the treaty. A good example is the 1982 Law of the Sea Convention, negotiated from 1973–1982 and which entered into force in 1994. In marked contrast is both the 1992 Biodiversity and Climate Change Conventions, which took less than two years to negotiate and which entered into force very rapidly (1993 and 1994 respectively). There are, of course, many key points of distinction between these texts, not least the tremendous breadth and complexity of the LOSC which is a rule-making and codification treaty par excellence, whilst both the Climate Change and Biodiversity Conventions are more framework in character. Other key points of distinction are levels of political support and the entry into force requirements of the treaties. In respect of the former, both the Biodiversity and Climate Change Conventions enjoyed high levels of political support particularly given the coincidence of the 1992 Rio Conference on Environment and Development with the period for signature. Entry into force of the Law of the Sea Convention, on the other hand, was delayed by concerns by some industrialized States regarding the operation of Part X1 (addressed via the treaty mechanism of the 1994 Agreement on Implementation). Moreover, the LOSC required 60 ratifications to enter into force, whilst the Biodiversity Convention required 30 ratifications and the Climate Change 50 ratifications.Google Scholar
  38. 38.
    A. Hurrell and B. Kingsbury, “The International Politics of the Environment: An Introduction” in ibid., op. cit., n. 15, at p. 19.Google Scholar
  39. 39.
    See, generally, Phoebe Okowa, “Procedural Obligations in International Environmental Agreements” (1996) 67 BYIL, pp. 275–336. The first protocol to LRTAP, EMEP, provided an essential foundation for the development of further protocols embodying specific targets and timetables in respect of particular air pollutants.Google Scholar
  40. 40.
    This flows as much from the nature of scientific knowledge as from specific environmental phenomena. On the former see Thomas S. Kuhn,The Structure of Scientific Revolutions (2nd enlarged edition, University of Chicago Press Chicago/London, reprint of Foundations of the Unity of Science series, Vol. II No. 2, 1970 ).Google Scholar
  41. 41.
    See further David Freestone and Ellen Hey (eds.)The Precautionary Principle and International Law: The Challenge of Implementation ( Kluwer Law International, The Hague/London, 1996 ).Google Scholar
  42. 42.
    For discussion of the development of liability regimes in the regional marine pollution context, see R. Lefeber, “Liability in Regional Marine Conventions: Dead Letters in activities,43 oil pollution, 4” hazardous and noxious substances,45 and hazardous waste.4c’ the Sea“, in Davor Vidas and Willy Ostreng (eds.),Order for the Oceans at the Turn of the Century ( Kluwer Law International, The Hague/Boston 1999 ).Google Scholar
  43. 43.
    See, for example, the regional 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy, with its 1963 Brussels Supplementary Convention, and the global Vienna Convention on Civil Liability for Nuclear Damage, linked by a 1988 Joint Protocol.Google Scholar
  44. 44.
    See, for example, the 1969 International Convention on Civil Liability for Oil Pollution Damage and the 1971 Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, both updated in 1992 by Protocols.Google Scholar
  45. 45.
    See the 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea.Google Scholar
  46. 46.
    Parties to the 1989 Basel Convention on the Transboundary Movement of Hazardous Wastes and their Disposal are negotiating a Protocol on Liability and Compensation for Damage, a draft text of which will be forwarded to the fifth meeting of the Conference of the Parties in December 1999.Google Scholar
  47. 47.
    Rüdiger Wolfrum, “Purposes and Principles of International Environmental Law” (1990) 33 GYIL, pp. 308–330, at p. 327; see also Jutta Brunnée, “`Common Interest’ — Echoes from an Empty Shell? Some Thoughts on Common Interests and International Environmental Law” (1989) 49 ZaöRV, pp. 791–808, at p. 794 et seq. As Wolfrurn observes, the process of identification of environmental problems of global significance raises a number of issues, including the competence of the identifier: ibid., at p. 328.Google Scholar
  48. 48.
    Writing in 1990, Wolfrum cites the examples of the 1972 World Heritage Convention, the Ozone Convention, Ramsar and CITES in this connection:ibid., at pp. 327–328.Google Scholar
  49. 49.
    See, for example, the grace period for developing countries contained in Article 5 of the Montreal Protocol. Article 175 EC also allows for temporary derogation from measures which impose a disproportionate cost on the public authorities of a Member State. Further latitude may be afforded Member States in individual directives, for example the derogations afforded to Spain under the large combustion plant directive. See further Joanne Scott, EC Environmental Law (Longmans, London, 1998), pp. 37–43, esp. p. 39 (“shared but differentiated responsibilities”).Google Scholar
  50. 50.
    Lang, op. cit., n.16, at p. 116.Google Scholar
  51. 51.
    See further D. W. Bowett, “Reservations to Non-Restricted Multilateral Treaties” (1976–7) 48 BYIL, pp. 67–92; this author, (1993) 65 BYIL, pp. 245–282.Google Scholar
  52. 52.
    On the procedural innovations of UNCLOS III see Albert W. Koers, “The Third United Nations Conference on the Law of the Sea — some remarks on its contribution towards the making of international law”, in Wybo P. Heere (ed.), International Law and its Source: Liber Amicorum Maarten Bos (Kluwer Law and Taxation Publ., Deventer/Antwerp, 1989), at pp. 23–46.Google Scholar
  53. 53.
    Ibid., at p. 34.Google Scholar
  54. 54.
    See Principle 7 of the Rio Declaration and Article 3(1) of the Climate Change Convention; for further discussion see, generally, Daniel B. Magraw, “Legal Treatment of Developing Countries: Differential, Contextual and Absolute Norms” (1990) 1 Colorado Journal of International Environmental Law and Policy, pp. 69–99; and R. Mushkat, “Environmental Sustainability: A Perspective from the Asia-Pacific Region” (1993) 27 UBC Law Review, p. 153, at p. 161.Google Scholar
  55. 55.
    Further evidence of multilateralism is evident in the new approach to dispute settlement through non-compliance procedures, discussed further below (point 9).Google Scholar
  56. 56.
    For further discussion, see Davies, op. cit., n.20.Google Scholar
  57. 57.
    Sand, Summary Report of Survey, op. cit., n.5, at p. 11. He observes further, based on the 124 agreements and instruments surveyed, that technical and financial assistance are crucial elements in facilitating developing State participation. This is considered further below.Google Scholar
  58. 58.
    For comprehensive analysis of conservation trust funds for biodiversity conservation supported by the Global Environmental Facility, see GEF, Evaluation of Experience with Conservation Trust Funds (November, 1998).Google Scholar
  59. 59.
    The GEF provides incremental funding for projects in four key areas: biodiversity, climate change, international waters, and ozone depletion. It is the designated financial mechanism under the Biodiversity and Climate Change Conventions; the Montreal Protocol has its own Multilateral Fund to assist developing countries with the costs of phasing out production and consumption of ozone-depleting substances, but the GEF is able to assist States which do not meet the Fund’s criteria, (mainly economies in transition). For further details see http://www.gefweb.com.Google Scholar
  60. 60.
    The financial mechanisms of the CBD and FCCC are excellent examples both of facilitative financing and also improved governance structures. The GEF Governing Council does not operate along the lines of the World Bank or IMF but rather has equitable representation with 16 representatives from developing countries, 14 from developed countries, and 2 from economies in transition. For background to the restructuring of the GEF, see S. Johnstone, “Financial Aid, Biodiversity and International Law”, in Michael Bowman and Catherine Redgwell (eds.),International Law and the Conservation of Biological Diversity ( Kluwer Law International, London/The Hague, 1996 ).Google Scholar
  61. 61.
    The GEF Report, op. cit. n.58, at p. 10, emphasizes that conservation trust funds are more than financial mechanisms, but `institutions“ with a key role to play in developing national conservation strategies, in providing technical expertise, and in capacity building within local NGO communities. Indeed, NGOs, the private sector, and the scientific community are important players in the design and implementation of GEF-financed projects in all four areas of activity.Google Scholar
  62. 62.
    See also Lang, op. cit., n.16, at p. 122.Google Scholar
  63. 63.
    Adede, op. cit., n.2, at p. 13.Google Scholar
  64. 64.
    See, for example, Article 12 of the Biodiversity Convention which provides for research and training “taking into account the special needs of developing countries”; see also, more generally, Principle 9 of the 1992 Rio Declaration (exchange of scientific and technical knowledge, transfer of technologies).Google Scholar
  65. 65.
    Article 16(5) merely notes that patents and other intellectual property rights may have an impact on the implementation of the Convention and exhorts Contracting Parties to co-operate to ensure that such rights support, rather than run counter, to the objectives of the Convention. For an overview of the issues, see I. Walden, `Intellectual Property Rights and Biodiversity“, in Bowman and Redgwell (eds.), op. cit., n.60. On the Convention generally, see further (1997) 6:3 RECIEL passim. Google Scholar
  66. 66.
    See L.K. Caldwell, “Beyond Environmental Diplomacy: the Changing Institutional Structure of International Co-operation”, in John E. Carroll (ed.), op. cit., n.9, at pp. 19–20 and 22–24 (environmental NGOs’ participation from initiation to negotiation through to ratification and implementation); Philippe Sands, op. cit., n.1, ch. 3; and ibid., “The Environment, Community and International Law” (1989) 30 Harvard International Law Journal, pp. 393–420.Google Scholar
  67. 67.
    The important role of indigenous peoples is explicitly recognized in the Biodiversity Convention: see Article 8(j). COP4 established an ad hoc open-ended inter-sessional working group on the implementation of this provision.Google Scholar
  68. 68.
    Nicholas A. Robinson (ed.), Agenda 21: Earth’s Action Plan (Oceana, New York/London, 1993), chs. 23–32; see also Principles 20–22 of the 1992 Rio Declaration.Google Scholar
  69. 69.
    See, for example, Commission on Global Governance,Our Global Neighbourhood (Oxford/New York, Oxford University Press, 1995 ); and, on the intersection between human rights and the environment, Alan E. Boyle and Michael R. Anderson (eds.),Human Rights Approaches to Environmental Protection ( Clarendon Press, Oxford, 1996 ).Google Scholar
  70. 70.
    On the legal significance of “common concern of humankind”, see Alan E. Boyle, “International Law and the Protection of the Global Atmosphere: Concepts, Categories and Principles”, in Robin Churchill and David Freestone (eds.), International Law and Climate Change (Graham and Trotman/Martinus Nijhoff, London/Dordrecht, 1991), at pp. 7–19. On whether international environmental law is anthropocentric in approach, see this author, “Life, the Universe and Everything: A Critique of Anthropocentric Rights”, in Boyle and Anderson, ibid., ch. 4, at pp. 71–87.Google Scholar
  71. 71.
    For example, the promotion and progressive development of international environmental law is one of UNEP’s major functions. See further Julia Sommer, “Environmental Law-Making by International Organizations” (1996) 56/3 ZaöRV pp. 628–667.Google Scholar
  72. 72.
    See, generally, Anthony Ogus, Regulation: Legal Form and Economic Theory (Clarendon Press/Oxford University Press, Oxford/New York, 1994); this author, “Privatization and Environmental Regulation: Some Observations”, in Klaus Bosselmann and Benjamin J. Richardson (ed.), Environmental Justice and Market Mechanisms: Key Challenges for Environmental Law and Policy (Kluwer Law International, The Hague/London, 1999); and Alfred Rest, “New Legal Instruments for Environmental Prevention, Control and Restoration in Public International Law” (1993) 23 Environmental Policy and Law, pp. 260–272 (with discussion of enhanced co-operation between State and industry).Google Scholar
  73. 73.
    See further Naomi Roht-Arriaza, “Private Voluntary Standard-Setting, the International Organization for Standardization, and International Environmental Law Making” (1995) 6 Yearbook of International Environmental Law, pp. 107–163; and ibid. “Shifting the Point of Regulation: The International Organization for Standardization and Global Lawmaking in Trade and Environment” (1995) 22 Ecology Law Quarterly, p. 479, at pp. 532534 (influence of private standards-setting on public international law-making, with particular reference to oil pollution and to pesticides control).Google Scholar
  74. 74.
    See (1998) 7:2 RECIEL passim; L. Campbell, “Emission Trading, Joint Implementation and the Clean Development Mechanism: The Role of Private Sector and Other Non-State Actors in Implementation”, in W. Bradnee Chambers (ed.), Global Climate Governance: Inter-linkages between the Kyoto Protocol and other Multilateral Regimes (UNU/IAS/GEIC, 1998); see also Worika, Brown, Vinogradov and Waelde, “Contractual Aspects of Implementing the Clean Development Mechanisms under the Kyoto Protocol”, and Werksman and Santoro, `Investing in Sustainable Development: the Potential Interaction Between the Kyoto Protocol and a Multilateral Agreement on Investment“, ibid. Google Scholar
  75. 75.
    See further Alan Boyle’s contribution, infra.; see also Pierre-Marie Dupuy, “Soft Law and the International Law of the Environment” (1991) 12 Michigan Journal of International Law, pp. 420–435; P. Birnie, in H. Ringbom (eds.), Competing Norms in the Law of Marine Environmental Protection: Focus on Ship Safety and Pollution Prevention (Kluwer Law International, London/Boston, 1997); and, generally, C.M. Chinkin, “The Challenge of Soft Law. Development and Change in International law” (1989) 38 ICLQ, pp. 850–866.Google Scholar
  76. 76.
    An excellent example of a “non-treaty” is the memorandum of understanding: see, generally, Anthony Aust “The Theory and Practice of Informal International Instruments”, (1986) 35 ICLQ, pp. 787–812. Environmental examples include MOUs for inter-institutional cooperation, e.g. MOU between CITES Secretariat and INTERPOL, and for harmonizing the exercise of port state enforcement of existing international standards (e.g. under MARPOL 73/78). For further discussion see F. Plaza, “Port State control: an update”(1997) 4 IMO News, p. 30; for a chart of existing MOUs, commencing with the 1982 Paris Memorandum of Understanding on Port State Control, see ibid., at p. 34.Google Scholar
  77. 77.
    Alexandre Kiss, “Nouvelles tendances en droit de l’environnement” (1989) 32 GYBIL, pp. 241–263. See also Adede, op. cit., n.2, at p. 14, who identifies six categories of use of soft law instruments in environmental law-making over the past twenty years.Google Scholar
  78. 78.
    On the latter see Palmer, op. cit., n.3, at pp. 269–70.Google Scholar
  79. 79.
    Adede, op. cit., n.2, at p.15; see also the ASIL Proceedings, op. cit.. n.1.Google Scholar
  80. 80.
    Ibid., at p. 11; Roht-Arriaza, op. cit., n.73, at pp. 138–146; and, generally, Peter H. Sand, Lessons Learned in Global Environmental Governance (World Resources Institute, Washington D.C., 1990). As Roht-Arriaza points out, however, the “non-state dominated nature of the standard-setting process does not necessarily guarantee adequate representation for societal interests” raising concerns, inter alga, regarding the legitimacy of the process. Ibid., at p. 140.Google Scholar
  81. 81.
    See, generally, Martti Koskenniemi, “Breach of a Treaty or Non-Compliance? Reflections on Enforcement of the Montreal Protocol” (1992) 3 Yearbook of International Environmental Law, pp. 123–162; Patrick Széll, “The Development of Multilateral Mechanisms for Monitoring Compliance” in Winfried Lang (eds.), Sustainable Development and International Law (Graham and Trotman/Martinus Nijhoff, London/Dordrecht, 1995) at pp. 97–109; James Cameron, Jacob Werksman and Peter Roderick (eds.), Improving Compliance with International Environmental Law (Earthscan, London, 1996); and this author, “Non-Compliance Procedures and the Climate Change Convention”, in Chambers (ed.), op. cit. n.74.Google Scholar
  82. 82.
    Op. cit., n.13, at p. 55.Google Scholar
  83. 83.
    See, for example, Alan E. Boyle, “Saving the World? Implementation and Enforcement of International Environmental Law Through International Institutions” (1991) 3:2 Journal of Environmental Law, pp. 229–245; and Sommer, op. cit., n.71.Google Scholar
  84. 84.
    There are glimmers of differentiation in the VCLT, but only in Article 62(2) and in Article 20(2) and (3).Google Scholar
  85. 85.
    McNair, “The Functions and Differing Legal Character of Treaties” (1930) 11 BYIL, pp. 100–118. However, in its recent (and on-going) examination of reservations to treaties the ILC has clearly rejected the possibility of differentiated general rules, beyond what is already contained in the VCLT and given that the residual rules of the VCLT may always be replaced by express treaty provision.Google Scholar

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