Session 4: Lecture Notes on Role of International Organizations in the Emergence of Environmental Law

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1 Session 4: Lecture Notes on Role of International Organizations in the Emergence of Environmental Law Dr. Luther Rangreji Legal Officer, Ministry of External Affairs I. Background In the earlier session we saw the growth of international conferences and the development of IEL. Today with more than 3000 multilateral environmental agreements (MEAs), international organizations have come to play a very important role and are often considered to be a link between various States. So much so that there is an institutional proliferation and fragmentation of international institutions within and outside the UN system with parallel or complimentary or conflicting mandates. IEIs have grown at a steady pace within and outside the United Nations. Many of these have been established as specialized agencies of the UN, functional and regional commissions, as well as programmes. IEIs are vested with legal personality and are created on the basis of a constituent instrument. Such instruments can exist as an international treaty convention, or the constitution or founding charter of international organizations. To give examples these IEIs or organizations form a complex web and link themselves with the UN with different cooperative arrangements. Functional UN Specialized Agencies which are international organizations established by Treaty based on the agreements they draw with the ECOSOC as per Article 63 of the UN Charter. Examples include the World Bank, the International Maritime

2 Organization (IMO), the Food and Agricultural Organization (FAO), the United Nations Industrial Development Organization (UNIDO), International Civil Aviation Organization (ICAO) etc. UN General Assembly bodies established pursuant to Article 22 of the Charter of the UN such as United Nations Environment Programme (UNEP), and the Commission on Sustainable Development (CSD) Institutions based on the cooperative arrangements between other international institutions which include the Global Environment Facility (GEF), the Inter-Organization Programme for the Sound Management of Chemicals (IOMC) and the Inter-governmental Panel on Climate Change (IPCC). Treaty based institutions such as Conference of Parties (COPs) and Meetings of Parties (MOPs) and the Secretariats of the multilateral environmental agreements and other subsidiary bodies It may be noted that the General Assembly, the ECOSOC and the Commission of Sustainable Development play an important role as coordinators. In view of the above, an easier classification of these organizations can be undertaken on the basis of their functional roles and mandates. Here I very much agree with the classification provided in your notes namely: (i) Functional international organizations; (ii) Specialized environmental institutions; (iii) Treaty bodies or institutional structures established by sectoral regimes. (iv) Multilateral financial institutions

3 (i) Functional international organizations As stated earlier the post-stockholm scenario saw witnessed a number of international organizations having varied areas of functioning and specialization being asked to green their mandates. To name a few these may include: the International Labour Organization (ILO), Food and Agricultural Organization (FAO), International Civil Aviation Organization (ICAO), United Nations Educational, Scientific and Cultural Organization (UNESCO), the World Health Organization (WHO), the International Atomic Energy Agency (IAEA) and the World Meteorological Organization (WMO). What this really meant was to draw up suitable linkages between various organizations for protection of the international environment as such. Something similar is happening today after the Bali Summit where nearly all departments of the UN as well as governmental departments are questioning a need to refashion environmental negotiations based on public goods/trade based focus and understanding. While many organizations were and still continue to work based on their constituent instrument/ constitution, other had to amend the constitutions to bring them in line with the need for international protection and preservation of the environment. For example: the ILO adopts conventions relating to health and safety workers, the environmental rights provided to indigenous peoples; the FAO has adopted a number of agreements in the field of forestry and sustainable fisheries management. An important Convention on Protection of Plant Genetic Resources was adopted under the FAO. Similarly, the IAEM which largely regulates the peaceful use of nuclear energy after the Chernobyl disaster adopted two conventions on: Early Notification of a Nuclear Accident (1986) and Assistance in the Case of a Nuclear Accident or Radiological Emergency (1986). The ICAO a competent organization in

4 the field of international civil aviation, is in the process of negotiating an agreement on greenhouse gases emitted by aircrafts. (ii) Specialized Environmental Institutions (SEIs) UNEP Many of the above organizations dealt with environment problems in a routine way and for these reasons a need was felt for establishment of international organizations devoted exclusively to the field of environment. The UNEP is one such organization, which was established soon after the 1972 UN Conference on Human Environment, held in Stockholm in It was established by a resolution of the General Assembly. Rather than taking this negatively, a more positive way to look at the whole issue is say that States were unanimous to create such a body. The UNEP functions within the UN Secretariat and is mainly responsible for coordinating activities related to the field of environment. The Council consists of 58 members, who lay the policies of the organization. Its headquarters/secretariat is based in Nairobi. The establishment of the UNEP the growing problems of environment in different sectors, particularly in the developing world began to attract the attention of policy makers, environmental lobbies and States. Although, initially focus was on weather and climate modification and seabed exploitation, rivers and river basins, enclosed and semi-enclosed seas, transfrontier pollution and ground waters. Between , the UNEP did not make much progress in helping States to develop proper environmental legislations due to lack of proper resources and constraints faced by developing countries to accelerate their economic development in an environmentally friendly way. Thereafter, it

5 began to develop a more focused programme on development of environmental law through its Montevideo Programme on Development of Environmental Law, The Programme was devoted to conclusion of international agreements, development of international principles, guidelines and standards and provision of international assistance for national legislation and administration. One of the important contributions of the UNEP in law making has been the Regional Seas Programme established under its auspices. The 16 odd Programmes have seen adoption of more than 35 regional agreements regulating marine pollution. The areas covered include: land-based marine pollution, pollution by oil, pollution by solids, pollution by dumping, pollution by radioactive contamination (South Pacific), pollution by plastics etc. In the last several years, a large number of international treaties were concluded under its auspices. To name a few these include: the Convention on Migratory Species of Wild Animals, 1979, the Vienna Convention and the Montreal Protocol for the Protection of the Ozone Layer (1985 and 1987 respectively), the Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal 1989 and the Convention on Biological Diversity 1992, Most of the SEIs have definite mandates and institutional structure to help States to implement their obligations. This is not to deny that SEIs always derive the powers from their constituent instrument. But it is common knowledge in intuitional functioning that many SEIs also have implied powers such like the United Nations has. For example, although the General Assembly that created UNEP s does not provide an active role for it, the organization exercised implied powers for servicing the adoption of multilateral instruments under its auspices.

6 As stated in my Lecture Notes in Session III, the UNEP acts as a catalyst for action by other groups. The Action Plan of the UNEP has 3 main arms i. Environmental Assessment that provides for an Earth watch program. ii. Management of the environment that involves organizing under its auspices international conferences, especially regional conferences; and iii. Providing supporting measures that involve a Legal program. Commission on Sustainable Development The United Nations Commission on Sustainable Development (CSD) was established at UNCED. It was established as an environmental institution devoted to the implementation of Agenda 21. Similar to the UNEP, the CSD too was adopted through a resolution of the General Assembly of the UN. It is designated as a functional commission of the ECOSOC. It consists of 53 Members elected for a period of three years. Role of the Commission been assigned a high level forum task on sustainable development that includes: To review progress at the international, regional and national levels in the implementation of recommendations and commitments contained in the final documents of the United Nations Conference on Environment and Development (UNCED), namely: Agenda 21; and the Rio Declaration on Environment and Development. To elaborate policy guidance and options for future activities to follow up the Johannesburg Plan of Implementation and achieve sustainable development To promote dialogue and build partnerships for sustainable development with governments, the international community and the major groups identified in Agenda 21 as key actors outside the central

7 government who have a major role to play in the transition towards sustainable development. These Major Groups include women, youth, indigenous peoples, non-governmental organizations, local authorities, workers and trade unions, business and industry, the scientific community, and farmers The Johannesburg Plan of Implementation mandated for: Renewed emphasis on integration of the three dimensions of sustainable development in a balanced way Focus on reviewing and monitoring progress in the implementation through a broad exchange of views and experiences, best practice and lessons learned Enhanced linkages between global, regional and national endeavors Integrated process that enhances coherence between the implementation of Agenda 21, initiatives and partnerships Greater involvement at the regional level Opportunity to look at new challenges and opportunities in the context of implementation Innovative methods of work Broader participation of all stakeholders, particularly UN agencies/international financial institutions and the Major Groups Greater consideration to scientific contributions Contributions of educators Focus on a limited number of issues and Negotiations once every two years

8 The overburdened task of the CSD would become clear if one were to look at the thematic areas on sustainable development. These among others include: agriculture, atmosphere, biodiversity, climate change, capacity building, desertification and drought, energy, finance, forests, health, human settlement, industry, international law, institutional cooperation, land, mountains, oceans and seas, poverty, science, technology, toxic wastes etc. The CSD is also involved in Inter-Agency coordination on matters relating to water, gender, oceans and energy. To date 14 sessions of the CSD have been held. Global Environmental Facility The GEF IS an independent financial organization, that provides grants to developing countries for projects that benefit the global environment and promote sustainable livelihoods in local communities. During the pilot phase ( ) the task of its implementation task was assigned to three bodies- the UNDP, UNEP and the World Bank. The GEF took shape when these agencies agreed by a tripartite agreement in 1991 and established by a resolution of the board of directors of the World Bank a grant mechanism to provide financing for projects in four focal areas: ozone layer depletion, global warming, biodiversity, and international waters. During this period, about $US800 million, contributed or pledged by 28 countries, including 12 developing countries. Since 1991, the GEF has provided $6.8 billion in grants and generated over $24 billion in co financing from other sources to support over 1,900 projects that produce global environmental benefits in more than 160 developing countries and countries with economies in transition. Donor countries contribute all GEF funds.

9 The Organizational structure of GEF is as follows: GEF Member Countries include developing and developed countries, as well as those with economies in transition. Each country has a GEF representative know as a "Focal Point". The GEF Council is the main governing body of the GEF comprising 32 members who represent GEF member countries. The GEF Council must approve all GEF full-size projects. The GEF Assembly is comprised of all the countries that are members of the GEF. It meets once every four years to review the policies and operations of the GEF. Only the Assembly can make any amendments to the GEF Instrument i.e. the document that established the GEF. The Chief Executive Officer of the GEF CEO is Chairperson Monique Barbut who heads the GEF Secretariat. The Secretariat prepares reports submitted to the Assembly and Council. The Secretariat also coordinates the implementation of GEF's projects and programs, as well as the formulation of policies and operational strategies. The implementing Agencies and Executing Agencies are responsible for creating project proposals and for managing GEF projects. The nongovernmental organizations (NGOs) participate in the GEF activities and assist in the design, execution, and monitoring of projects. Besides, the Scientific and Technical Advisory Panel (STAP) provides objective scientific and technical advice to the GEF. The Monitoring and Evaluation Unit conducts reviews of GEF s work and publishes lessons learned so that the GEF s effectiveness can enhanced. (iii) Treaty Bodies or sectoral/regime specific institutions Besides these SEIs there are a number Treaty based institutions such as Conference of Parties (COPs) and Meetings of Parties (MOPs) and the

10 Secretariats of the multilateral environmental agreements and other subsidiary bodies that help implementation of the MEA. The COP functions as the plenary and supreme decision-making body of the MEA. Although not a permanent standing body looking into day to day functioning the COP comprises all States and is responsible for the final decision of any MEA. Nearly all MEAs on climate change, biological diversity, ozone depletion, desertification etc. have COPs and the Protocols MOPs which realize the smooth and effective functioning and implementation of the obligations agreed upon in MEAs. Another aspect of regime specific conventions is the need for e Secretariat that services the day-to-day functioning of the MEA. The UNEP for example services the administration of five MEAs CITES, CMS, Convention for Protection of the Ozone Layer, Basel Convention on Hazardous Wastes and the CBD. COPs are generally headed by Executive Secretary who is the CEO of the Convention Secretariat established under the Convention. All subsidiary bodies responsible for scientific assistance and implementation of the MEA work under the overall supervision of the COP and also report to the COP. Every session of the COP is headed by a President who is generally from the host State which is hosting the COP. (iv) Multilateral Financial Institutions Another important feature is the presence of international or multilateral financial institutions that contribute to the management and execution MEAs. These among others include: African Development Bank (AfDB), Asian Development Bank (ADB), European Bank for

11 Reconstruction and Development (EBRD), United Nations Food and Agriculture Organization (FAO), Inter-American Development Bank (IDB), International Fund for Agricultural Development (IFAD), and United Nations Industrial Development Organization (UNIDO). It is of utmost importance that along with States, the private sector and the lay civil society play a role in the implementation of the MEA. A classic example of this is the implementation of the Vienna/Montreal regime governing depletion of the Ozone layer. One of the reasons for the effective implementation of the regime has been the role played by the private sector and international financial institutions. II. Conclusion The UNEP and the CSD are the two major IEIs we have today. There has been a growing demand to have a World International Environmental Organization just like the WTO. No one knows whether such a body can become a reality because of the different mandates of environment and trade organizations and their linkages and conflicts. International environmental law is sectoral and shall remain that way. Liability and Redressal regimes under MEAs are separately negotiated. The reality is that no one body whether UN or otherwise can manage so diverse and difficult areas. The private sector and the civil society have an important role to play.

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