UNEP Training Manual on International Environmental Law

UNEP Training Manual on International

Environmental Law

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FOREWORD

Today’s world is facing an unprecedented environmental crisis. Deterioration of the Earth’s environmentincreasingly threatens the natural resource base and processes upon which all life on Earth depends. Withoutstrong and multifaceted action by all of us, the biosphere may become unable to sustain human life and futuregenerations will suffer deprivation and hardship unless current patterns of production, consumption and wastemanagement dramatically change. The urgency of balancing development with the Earth’s life support systemsis being finally recognized and understood. Now it is time to act upon this understanding.

It is widely recognized that most environmental problems, challenges and solutions are transboundary, regionalor global in scope. The environment is an area where states and stakeholders are cooperating extensively andprogressively. Although environmental degradation and competition for scarce resources are potential sourcesfor conflict, history has repeatedly shown that they are more often catalysts for cooperation. Problems of sharedresources regularly produce shared solutions. The environment can make its full and rightful contribution topeace and stability in the world.

Worldwide commitments are necessary to protect environmental features such as the biosphere including theozone layer, migratory species, habitats and ecosystems. Control of movement of wastes, environmentallyharmful activities and installations can only be achieved by common and widely applied standards.Environmental law is recognized as an effective tool for catalyzing national and international action to achievesuch protection and control. As one of UNEP’s priority areas, environmental law has expanded rapidly over thelast decades and today comprises hundreds of global and regional norms that aim to protect our Earth.

Without analyzing each of the hundreds of agreements and instruments in the field, this Training Manual seeksto provide a comprehensive overview of the current body of environmental law. It is aimed at legal stakeholdersfrom all backgrounds including government representatives, judges, university professors and students from bothdeveloped and developing countries, to enable them to more effectively participate in the global, regional andnational efforts to preserve our Earth for future generations.

Specific topics are first presented at the international level and then followed by extracts of national legislationshowcasing real life examples of how national law today reflects developments in the international arena.

Klaus TöpferExecutive Director

United Nations Environment Programme

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ACKNOWLEDGEMENTS

Writing this book was a collaborative effort and the editors are indebted to many people. First and foremost welike to express our gratitude to all internationally acclaimed authors for contributing their expertise to thedifferent chapters of this Training Manual. The editors further thank Donald Kaniaru for using his scrutinizingeyes and boundless knowledge in the final stages of this publication, as well as Melis Lucas Korlaar, PieterThomaes, Justin Wolst, Paul Awi and especially María Elena García Mora for their advice and assistance.

We are grateful also to the Pace University School of Law Center for Environmental Legal Studies, including theLaw School’s Dean, Prof. Stephen Friedman, the Center’s Co-Director, Prof. Richard L. Ottinger, and the Directorof the Pace Law School’s Environmental Law Programs, Prof. LeRoy Paddock, and the environmental law internsat the Center: Deepa Bandrinaraya, Laura Bucher, Erin Flanagan, Megan Kelly, Susan Marriott, and Janice WoodsWeber. The contributions of Leslie Crincoli and Mary Stagliano are gratefully acknowledged also.

The editors wish to furthermore thank the visionary frontrunners who pioneered the development of UNEP’s firstEnvironmental Law Training Manual, in particular Professor Ben Boer. Last but not least the editors are indebtedto the many legal experts who participated in UNEP training courses useful suggestions and comments on thiseditions predecessor. In the same spirit comments of those who come to use this edition are most welcome tofurther enrich future editions of this Training Manual.

Lal KurukulasuriyaChief, Environmental Law Branch (retired)Division of Environmental Policy & LawUnited Nations Environment Programme

and

Nicholas A. RobinsonGilbert & Sarah Kerlin Distinguished Professor

of Environmental LawPace University School of Law (New York)

On behalf of the IUCN Academy of Environmental Law

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Foreword iiiAcknowledgements v

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hapter 1: Multilateral environmental agreement

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I. Introduction 1II. Sources of international environmental law 1

1. Law of treaties 22. Customary international law 73. General principles of law 84. Judicial decisions and qualified teachings 9

III. Negotiating multilateral environmental agreements 9IV. Administering treaties 11

hapter 2: The role of national environmental law 15I. Introduction 15II. Foundations of national environmental law 15

1. Environmental law and sustainable development 172. The prerequisites for effective national environmental law 17

a) Adequate regulation and institutional regimes 17b) The role of case law 18c) Implementation, enforcement and compliance of national laws 18

3. Template for elements of comprehensive national legal regimes for environmentally managing of different sectors 19

4. Implementation of international environmental law at the national level 205. UNEP’s capacity building programme on environmental law 20

hapter 3: Principles and concepts of international environmental law 23I. Introduction 23II. Overview of international environmental law principles and concepts 23III. Emerging principles and concepts 24

1. Sustainable development, integration and interdependence 252. Inter-generational and intra-generational equity 263. Responsibility for transboundary harm 274. Transparency, public participation and access to information and remedies 285. Cooperation, and common but differentiated responsibilities 296. Precaution 307. Prevention 328. “Polluter Pays Principle” 339. Access and benefit sharing regarding natural resources 3510. Common heritage and common concern of humankind 3611. Good governance 36

hapter 4: Compliance and enforcement of multilateral environmental agreements 39I. Introduction 39II. International framework 39

1. The importance of compliance and enforcement 402. Institutional arrangements for the implementation of MEAs 41

a) Conferences/meetings of the Parties of a MEA 41b) Convention secretariats 41c) Advisory bodies 41d) Reporting mechanisms to track progress in the implementation of treaties 42e) Financial mechanisms 42f) Non-compliance procedures/mechanisms 43

3. Effectiveness of the non-compliance procedure 444. Capacity building programmes: the role of international organizations and

compliance and enforcement networks 45

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5. Compliance and enforcement opportunities 46III. National implementation 47

Chapter 5: Liability and compensation regimes related to environmental damage 51I. Introduction 51II. International framework 51

1. Rationale for introducing liability regimes for environmental damage 512. Liability for environmental damage versus traditional liability systems 523. State responsibility and liability versus civil liability 524. State responsibility and liability for environmental harm 53

a) Transboundary environmental damage 53b) State responsibility and state liability 53c) State responsibility for wrongful acts 53d) State liability for lawful acts 55e) Civil liability regimes for environmental damage 57f) Types of civil liability for environmental damage 57g) Scope and threshold of environmental damage 58

5. Who is liable? 586. Forms of compensation 587. International civil liability 59

Chapter 6: The Global Environment Facility 65I. Introduction 65II. GEF structure 65III. National participation, eligibility and coordination 66IV. GEF projects 66V. Project eligibility and basic principles of the GEF 67VI. GEF programming framework: focal areas, operational programmes and strategic 68

1. Focal areas 682. Operational programmes 683. Strategic priorities in the current phase of the GEF 68

VII. The GEF project cycle 691. Full size projects 702. Medium-sized projects 703. Enabling activities 704. Small grant projects 70

VIII. The GEF project portfolio scope and division of responsibility among GEF agencies 70IX. UNEP as an implementing agency of the Global Environment Facility 71X. The scientific and technical advisory panel of the GEF 71XI. UNEP/GEF projects 72

1. Regional environmental frameworks and programmes of action 72a) Africa 72b) Central Asia 73c) Asia 73d) Latin America 73

(i) Formulation of a water resources management framework for the Plata river basin 73

(ii) Supporting stakeholder participation in international environmental legal processes 74

(iii) Fostering active and effective civil society participation inpreparations for implementation of the Stockholm Convention 74

(iv) The global biodiversity forum: multistakeholder support for the implementation of the Convention on Biological Diversity 74

(v) The indigenous peoples’ network for change 74(vi) Providing environmental information for policy making 74

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(vii) Building national capacity to implement global environmental agreements 75a) Biodiversity 75b) Biosafety – the safe use of biotechnology 75c) Climate change 75d) Climate change national adaptation programme of action 76e) Persistent organic pollutants 76f) National capacity needs self-assessment for global

environmental management 76(xii) Current developments within the GEF 76

Chapter 7: Information, public participation, and access to justice in environmental matters 79I. Introduction 79II. International framework 80

1. Global principles 802. Global conventions 823. Regional conventions 854. Non-binding international legal instruments 85

III. National implementation 86

Chapter 8: Transboundary air pollution 91I. Introduction 91II. International framework 91

1. Long-range transboundary air pollution 91a) The problem 91b) Smog 91c) The Geneva Convention on Long-Range Transboundary Air Pollution 92d) LRTAP’s general rules 92e) Protocols to 1979 LRTAP 92f) LRTAP compliance and supervision 94

2. Haze pollution 95a) The problem 95b) Negotiation history 95

III. National implementation 961. Europe 96

a) Austria 96b) Poland 96

2. Asia 97IV. The 2002 ASEAN Agreement 98

Chapter 9: Ozone depletion 101I. Introduction 101II. International framework 102

1. The Vienna Convention for the Protection of the Ozone Layer 1022. The 1987 Montreal Protocol on Substances that Deplete the Ozone Layer 102

a) Institutions 103b) The Multilateral Fund, its executive committee and secretariat 104c) Non-compliance procedure 105

III. National implementation 1061. Malaysia 1062. Canada 1073. South Africa 109

Chapter 10: Global climate change 111I. Introduction 111II. International framework 111

1. The climate change convention regime 1112. The United Nations Framework Convention on Climate Change 113

a) Capacity building and financial mechanism 114

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b) Compliance and dispute settlement 1143. The Kyoto Protocol to the United Nations Framework Convention on

Climate Change 115a) The negotiations 115b) Commitments 115c) The flexible mechanisms 116

4. Compliance mechanism – compliance committee 118III. National implementation 119

1. Europe 1192. Japan 1203. China 121

Chapter 11: Hazardous wastes 125I. Introduction 125II. Institutional framework 126

1. Multilateral instruments on hazardous wastes 126a) Basel Convention on the Control of Transboundary Movements

of Hazardous Wastes and their Disposal 126i. Background and contents of the convention 126ii. Strict control of transboundary movement of hazardous wastes 127iii. Environmentally sound management of hazardous wastes 129iv. Enforcement of provisions for strict control of transboundary

movements and for environmentally sound management of hazardous wastes 130

v. Dispute settlement mechanisms 131vi. Institutional framework for implementation 131vii. Developments since the adoption of the convention

b) Marine environment compensation and liability agreements and marine pollution prevention agreements 132i. Marine environmental compensation and liability agreements 132ii. Marine pollution prevention agreements 133

c) Convention for Prevention of Marine Pollution by Dumping of Wastes and Other Matter 134

2. Regional instruments on hazardous wastes 134a) Bamako Convention on the Ban of Imports into Africa and

the Control of Transboundary Movement and Management of Hazardous Wastes within Africa 134

b) Regional sea agreements 135i. Convention for the Protection and Development of Marine

Environment of the Wider Caribbean Region 135ii. Kuwait region. 135

ii.a. Kuwait Regional Convention on the Protection of the Marine Environment from Pollution 136

ii.b. Kuwait Regional Protocol on the Control of Marine Transboundary Movements and Disposal of Hazardous Wastes and other Wastes 137

iii. Convention to Ban the Importation into the Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region 138

3. Bilateral instruments on hazardous wastes 1394. Non-legally binding instruments on hazardous wastes 139

III. National implementation 1391. Japan 1402. Kenya 141

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Chapter 12: Chemicals 145I. Introduction 145II. The international framework 145

1. Rotterdam Convention on the Prior Informed Consent procedure for certain hazardous chemicals and pesticides in international trade 147

a) Institutions 148b) PIC procedure 148c) Information exchange 148d) Core PIC procedure 148e) PIC listing 149f) Import decisions 149g) General obligations 149h) Technical assistance 149i) Non-compliance 150

2. Stockholm Convention on Persistent Organic Pollutants 150a) Intentionally produced POPs 150b) Unintentionally produced POPs 151c) Stockpiles 151d) General obligations 151e) Institutions 152f) Addition of new POPs 152g) Financial and technical assistance 152h) Non-compliance 152

3. Clustering of related agreements 152III. National implementation 153

1. The European Union – PIC procedure 1532. Ghana – PIC and POPs 153

Chapter 13: Marine pollution 157I. Introduction 157II. International framework 157

1. The problem 1572. The law of the sea process 1583. The law of the sea and the marine environment 1594. Land-based sources of marine pollution 1605. Vessel-based sources of marine pollution 1616. Dumping of wastes at sea 1647. Offshore hydrocarbon and mineral recovery 1658 Regional sea agreements 165

a) Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean 166

b) Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region 167

c) Convention for the Protection of the Marine Environment of the North-East Atlantic 167

III. National implementation 1681. Romania 1682. South Africa 1683. Australia 168

Chapter 14: Conservation of species and habitats, including trade in and sustainable use of endangered species 171

I. Introduction 171II. International framework 171

1. The 1979 Convention on the Conservation of Migratory Species of Wild Animals 171a) Obligations and Instruments 172

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b) Appendix I species 173c) Appendix II species and other species 173d) National implementation 173e) Relationship and cooperation with other biodiversity related MEAs 174f) Agreements concluded under the CMS 174

i. Agreement on the conservation of seals in the Wadden Sea 174ii. Agreement on the conservation of small cetaceans of the Baltic

and North Seas 174iii. Agreement on the conservation of populations of European bats 174iv. Agreement in the conservation of African-Eurasian migratory waterbirds 175v. Agreement on the conservation of cetaceans of the Black Sea,

Mediterranean Sea and contiguous Atlantic area 175vi. Memorandum of understanding concerning conservation measures

for the Siberian crane 175vii. Memorandum of understanding concerning conservation for the

slender-billed curlew 175viii. Agreement on the conservation of albatrosses and petrels 176ix. Memorandum of understanding on the conservation and

management of marine turtles and their habitats of the Indian Ocean and South East Asia 176

x. Memorandum of understanding concerning conservation measures for marine turtles of the Atlantic coast of Africa 176

xi. Memorandum of understanding on the conservation and management of the Middle-European population of the great bustard 177

xii. Memorandum of understanding concerning conservation and restoration of the Bukhara deer 177

xiii. Memorandum of understanding and action plan concerning measures for the aquatic warbler 177

2. The 1971 Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat 177

a) Obligations 178b) National implementation 179c) Institutions 179d) Relationship and cooperation with other biodiversity related MEAs 179

3. The 1973 Convention on International Trade in Endangered Species of Wild Flora and Fauna (“CITES”) 179

a) Definitions 180b) Obligations and structure 180

i. Trade in appendix I specimens (article III) 180ii. Trade in appendix II specimens (article IV) 181iii. Trade in appendix III specimens (article V) 181iv. Compliance and enforcement 181

c) National implementation 181d) Institutions 182e) Relationship and cooperation with other biodiversity-related MEAs 182

4. The 1994 Lusaka Agreement on Cooperative Enforcement Operations Directed at Illegal Trade in Wild Flora and Fauna 182

a) Obligations of the parties 183b) National implementation 183c) Institutions 183d) Relationship and cooperation with other biodiversity-related MEAs 183

5. The 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage 184

a) World Heritage Committee 185b) World Heritage List 185

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c) List of World Heritage in Danger 185d) International assistance 186e) World Heritage Fund 186f) Advisory bodies 186g) Secretariat 186h) National implementation, supervision and compliance 187i) Relationship with other biodiversity-related MEAs 187

III. National implementation 1871. Uganda: implementing the Ramsar convention 1872. Singapore: implementing CITES 1893. South Africa: implementing the World Heritage Convention 189

Chapter 15: Biological diversity 193I. Introduction 193II. International framework 1931. The Convention on Biological Diversity 194

a) General principles and concepts 195b) Measures for the conservation and sustainable use 196c) Access to genetic resources and benefit sharing 197d) Access to and transfer of technology 199e) The role of indigenous and local communities 201f) International cooperation and the financial mechanism 202g) Institutional arrangements 203h) Compliance, liability and dispute settlement 203i) Relationship with other international agreements 203

2. Intellectual property rights and biological diversity 2043. International convention for the protection of new varieties of plants 207

a) Agenda 21 208b) FAO global system for the conservation and sustainable use

of plant genetic resources 208III. National implementation 211

1. Costa Rica 2112. India 2123. China 213

Chapter 16: Biosafety 217I. Introduction 217II. International framework 218

1. General 2192. Some of the specific requirements of the Cartagena Protocol on Biosafety 219

a) Advance informed agreement procedure 219b) LMOs intended for direct use of food, feed or for processing 220c) Risk assessment and risk management 221d) Information sharing 221e) Unintentional transboundary movement of LMOs (article 17) 222f) Identification of LMOs 222g) Confidential information (article 21) 222h) Capacity building (article 22) 222i) Public awareness and participation (article 23) 222j) Compliance procedure and mechanisms (article 34) 222k) Liability and redress (article 27) 223l) Transboundary movement of LMOs with non-parties 223m) Administration of the Biosafety Protocol 223

3. Relationship of the Cartagena Protocol with other agreements 223III. National Implementation 224

1. Indonesia 224

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2. Australia 2253. Cuba 225

Chapter 17: Protecting and preserving marine biodiversity, including through sustainable fisheries 229I. Introduction 229II. International framework 232

1. Global legally binding instruments 232a) United Nations Convention on the Law of the Sea 232b) Fish Stocks Agreement and other developments 235c) Convention on Biological Diversity 236d) Global conventions on marine pollution 238e) International Convention for the Regulation of Whaling 239

2. Regional legally binding instruments 241a) Regional fisheries management organizations 241

i. International Convention for the Conservation of Atlantic Tunas 241ii. Convention on the Conservation of Antarctic Marine Living Resources 242

b) Regional sea agreements 243i. Convention for the Protection and Development of the Marine

Environment of the Wider Caribbean Region (Cartagena Convention) 243ii. OSPAR convention 244

3. Global non-legally binding instruments 245a) Rio Declaration and Agenda 21 245b) FAO Code of Conduct for Responsible Fisheries 245c) Johannesburg Plan of Implementation 246

III. National implementation 246a) China: implementation of UNCLOS 246b) Belize: implementation of UNCLOS 247c) Australia: implementation of the Convention on Biological Diversity 248

Chapter 18: Freshwater resources 253I. Introduction 253

1. The hydrological cycle 2532. Water scarcity 2553. Water pollution 2554. Water uses 255

II. International framework 2561. Major developments in the field of cooperation on freshwater 2562. Freshwater regulation at the international level 257

a) The 1997 United Nations Convention on the Law of Non-navigational Uses of International Watercourses 258

3. Freshwater regulation at the regional and subregional level 260a) The 1992 UNECE Convention on the Protection and Use

of Transboundary Watercourses and International Lakes 260b) Protocol on Shared Watercourse Systems in the

Southern African Development Community 261c) Agreements concerning specific watercourses 262

III. National implementation 2631. Major trends in national legislation 2632. Lessons learned 264

Chapter 19: Desertification 269I. Introduction 269II. International context 269

1. The problem 2692. Causes and consequences 2703. Scope and magnitude of the problem 270

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III. National/regional examples 2711. Chile 2712. China 2713. Africa 271

IV. The international legal regime 2721. Committee on science and technology 2742. Resolution of disputes 2753. Developments since adoption 275

V. National Implementation 2761. China 2762. Malawi 2773. Cameroon 278

Chapter 20: Mountain, forest and polar ecosystems 281I. Introduction 281II. Mountain ecosystems 281

1. Ecosystem characteristics and vulnerabilities 2812. International environmental regime relating to mountain ecosystems 282

a) Convention on the Protection of the Alps 282b) Framework Convention on the Protection and Sustainable

Development of the Carpathians 283c) Non-legally binding instruments 284

3. National and local initiatives relating to mountain ecosystems 285III. Forest ecosystems 286

1. Ecosystem characteristics and vulnerabilities 2862. International environmental regime relating to forest ecosystems 287

a) The Ramsar Convention on Wetlands of International Importance, especially as Waterfowls Habitat 287

b) The Convention Concerning the Protection of the World Cultural and Natural Heritage 288

c) The Convention on International Trade in Endangered Species of Wild Flora and Fauna 288

d) The Rio Conference instruments 288e) The International Tropical Timber Agreement 289f) The Rio Forest Principles 290

3. National initiatives relating to forest ecosystems 291a) United States 291b) Japan 292

IV. Polar ecosystems 2931. Ecosystem characteristics and vulnerabilities 2932. International environmental regime relating to Antarctica 296

a) The Antarctic Treaty 296b) Convention for the Conservation of Antarctic Seals 297c) Convention on the Conservation of Antarctic Marine Living Resources 297d) Protocol on Environmental Protection to the Antarctic Treaty 299

3. International environmental regime relating to the Arctic 300a) Declaration on the Protection of the Arctic Environment 300b) The Arctic Council 300c) The Barrow Declaration 300d) Regional programme of action for the protection of Arctic

marine environment from land-based activities 301e) Sub-regional regimes 301f) Legally binding instruments 301

4. National and local initiatives relating to the polar regions’ ecosystems 301a) United States 302b) Australia 303

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Chapter 21: Environmental impact assessment 307I. Introduction 307II. International framework 308

1. Convention on Environmental Impact Assessment in a Transboudary Context 3082. Protocol on Strategic Environmental Assessment 309

III. National implementation 3101. Brazil 3102. Uganda 3103. Kiribati 311

Chapter 22: Human rights and the environment 313I. Introduction 313

1. General 3132. The relationship between human rights and environmental law 3133. Human rights relevant to the environment 314

II. International framework 3141. Human rights instruments 3142. Environmental law instruments 3163. The international framework from an indigenous peoples’ perspective 317

III. Regional human rights systems 3181. The European Convention on Human Rights 3182. The Inter-American human rights system 3193. The African human rights system 321

IV. National implementation: national legislation/judicial decisions 3211. Philippines 3222. India 322

a) The right to life 322b) Equality before the law 322c) The right to property 323d) Environmental laws and policies 323e) Procedural right 323f) Right to remedy 323

3. South Africa 323a) Right to life 323b) Equality before the law 324c) The right to property 324

Chapter 23: International labour, health and the environment 327I. Introduction 327II. International framework 327

1. The problem 3272. International regulatory bodies 3283. Selected ILO conventions relating to the workplace environment 3284. The WHO and “environmental health” 329

III. National implementation 3301. China 3302. South Africa 3313. Kenya 331

Chapter 24: Trade and environment 333I. Introduction 333 II. International framework: the pillars of the World Trade Organization system -

the agreements and the dispute settlement understanding 3351. The agreements of the World Trade Organization 3352. 1994 General Agreement on Tariffs and Trade 335

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3. General Agreement on Trade in Services 3374. Agreement on Trade-Related Investment Measures 3385. Agreement on Technical Barriers to Trade 3396. Agreement on the Application of Sanitary and Phytosanitary Measures 3397. Agreement on Trade-related Aspects of Intellectual Property Rights 3408. Dispute Settlement Understanding 3409. Institutional structure of the World Trade Organization 34110. Examples of cases dealt with by the dispute settlement system of the GATT/WTO

concerning environmental issues 34211. Trade and multilateral environmental agreements 34512. Trade-restrictive measures in multilateral environmental agreements 34513. Reconciling trade restrictive provisions with GATT 1994 34514. Regional trade agreements and the environment 346

a) North American Free Trade Agreement 346b) Free Trade Agreement of the Americas 347c) Mercado Común del Sur 347d) European Union 348

III. National implementation 349

Chapter 25: Energy, renewable energy and nuclear energy 353I. Introduction 353

1. Challenges of sustainable energy 3532. Energy efficiency and renewable energies 3543. Nuclear energy 356

II. International framework 3561. International legal regimes: nuclear 356

a) Convention on Early Notification of a Nuclear Accident 356b) Convention on Assistance an the Case of a Nuclear Accident

Emergency or a Radiological Emergency 357c) Convention on the physical protection of nuclear material 357d) Joint Convention on the Safety of Spent Fuel Management and

on the Safety of Radioactive Waste Management 357e) The Convention on Nuclear Safety 358

2. International cooperation on energy 358a) The Energy Charter Treaty 358b) The Energy Charter Protocol on Energy Efficiency and Related

Environmental Aspects 359III. National implementation 360

1. Republic of Korea 360a) Energy conservation policy 360b) Policy objectives 360c) Major energy efficiency and conservation programmes 360d) Energy audits and technical support 360e) Financial and taxation assistance to energy efficiency investments 361f) Regional energy planning 361g) Energy impacts assessments on energy-intensive projects 361h) Demand-side management 361i) Management and publication of energy statistics 361j) Public awareness programmes 361k) Energy equipment efficiency management: standards and labelling 361 l) Inspection of heat-using equipment 362m) Promotion of research and development of energy technologies 362

2. Germany 3623. Australia 363

a) Regulatory framework for promotion of energy conservation and energy efficiency 363

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b) Domestic appliances and equipment 363c) Mandatory programmes 364d) Voluntary programmes 364e) Buildings 364f) Electricity generation and distribution 365g) Transport 365

Chapter 26: Corporations and the environment 369I. Introduction 369II. International framework 371

1. The international legal regime 371a) United Nations Convention on the Law of the Sea and the Fish

Stocks Agreement 371b) Framework Convention on Tobacco Control 372c) Ozone regime 372d) Basel convention 373e) Liability for oil pollution 374

2. International non-legally binding instruments 375a) Agenda 21 and the Rio Declaration 375b) Pesticides code 376c) Fisheries code 377d) OECD guidelines 377e) International standards - ISO 378f) Other instruments 379

3. Regional agreements 380a) North Atlantic Free Trade Agreement 380b) Association of South East Asian Nations 381c) European Union 382

III. National implementation: national legislation governing private businesses 3821. The Oil Pollution Act of the United States of America 3822. Philippine Fisheries Code of 1998 3833. National Pollutant Inventory of Australia 3844. Kenya and the Standards act (Chapter 496) 385

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MULTILATERAL ENVIRONMENTAL AGREEMENTSChapter 1

1. MULTILATERAL ENVIRONMENTAL AGREEMENTS

I. Introduction

1. Widespread concern about the need for globalaction for the protection of the natural environmentis a relatively recent phenomenon. General publicawareness of the problems relating to the globalenvironment and the need for coordinatedmultilateral action to address these problems wasnot evident even a few decades ago. With thewider dissemination of information relating to theever increasing environmental challenges,international concern has grown steadily over theyears. Some inter-state efforts to address problemsrelating to the oceans, endangered species, andother natural resources, date back to thenineteenth century, but many problem areasrelating to the environment remained to beaddressed. These early international efforts wererelatively uncoordinated. Modern internationalenvironmental law received a major boost with the1972 United Nations Conference on the HumanEnvironment held in Stockholm, Sweden, whichbrought much broader attention to the issues.

2. In order to understand international environmentallaw, it is necessary to have a basic grasp of generalinternational law. International environmental lawis a subset of international law; and internationallaw has been developing over a long period oftime. Since a significant part of internationalenvironmental law is incorporated in MultilateralEnvironmental Agreements (“MEAs”), anintroduction to treaty law is essential forunderstanding the contents of this Manual. Inaddition to exploring the basic principles relatingto treaty law, this chapter will also discuss certainaspects of the negotiation of MEAs.

3. While every effort will be made to provide factualguidance on the sources of international law in thischapter, due to obvious space constraints and thelimited objectives of this publication, it will not bepossible to make this a comprehensive work.Should further detail be required, the reader shouldconsult one or more of the reference materialssuggested at the end of the chapter.

II. Sources of International Law

4. The principal judicial organ of the United Nations(”UN”) is the International Court of Justice (“ICJ”).

The jurisdiction of the ICJ, specified in article 36(1)of its Statute, “...comprises all cases which theparties refer to it and all matters specially providedfor in the Charter of the United Nations or intreaties and conventions in force...” The UnitedNations’ Charter further stipulates that all membersof the United Nations are ipso facto parties to theICJ Statute (article 93). Besides decisions, the ICJ isauthorized to render advisory opinions on anylegal question, when requested by the GeneralAssembly or the Security Council. Other organs ofthe United Nations and specialized agencies mayalso request advisory opinions of the ICJ on legalquestions arising within the scope of theiractivities, when authorized by the United NationsGeneral Assembly (“UNGA”) (article 96). The ICJ,by the very nature of its functions, plays animportant role in the development of internationallaw. Accordingly, the sources of law relied uponby the ICJ are pertinent when examining thesources of international law and, consequently,international environmental law.

5. Article 38(1) of this Statute lists the four sources thatthe ICJ may rely upon to determine the lawapplicable to a case brought to its attention. Thesources listed in article 38(1) are regarded as theauthoritative sources of international law, and thusalso of international environmental law.

6. Article 38 establishes a practical hierarchy ofsources of international law in settling of disputes.First, relevant treaty provisions applicable betweenthe parties to the dispute must be employed. In theevent that there are no applicable treatyprovisions, rules of “customary international law”should be applied. If neither a treaty provision nora customary rule of international law can beidentified, then reliance should be placed on the

Statute of the International Court of Justice(Article 38)

“1.The Court, whose function is to decide inaccordance with international law such disputesas are submitted to it, shall apply:a. international conventions, whether general or

particular, establishing rules expresslyrecognised by the contesting states;

b. international custom, as evidence of ageneral practice accepted as law;

c. the general principles of law recognized bycivilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the mosthighly qualified publicists of the variousnations, as subsidiary means for thedetermination of rules of law.”

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MULTILATERAL ENVIRONMENTAL AGREEMENTS Chapter 1

general principles of law recognized by civilizednations. Finally, judicial decisions and writings ofhighly qualified jurists may be utilized as asubsidiary means of determining the dispute. It isimportant to remember that in many cases, due tothe absence of any unambiguous rules, the ICJ hashad to rely on multiple sources.

7. Article 38(1)(a), (b) and (c) are the main sources ofinternational law and international environmentallaw. However, given the uncertainties that prevail,article 38(1)(d) also becomes a significant source inthis area of law.

1. Law of Treaties

8. Today, treaties are the major mechanism employedby states in the conduct of their relations with eachother. They provide the framework for moderninternational relations and the main source ofinternational law. The starting point fordetermining what constitutes a treaty is to be foundin a treaty itself, the Vienna Convention on the Lawof Treaties, a treaty on treaty law. It was concludedin 1969 and entered into force in 1980 (“1969Vienna Convention”). Whilst the United Nationshas 191 Member States, the 1969 ViennaConvention has only 105 parties (as of September2005). A treaty is binding only among its parties.Although the 1969 Vienna Convention is not atreaty with global participation, it is widelyacknowledged that many of its provisions havecodified existing customary international law.Other provisions may have acquired customaryinternational law status. Since customaryinternational law and treaty law have the samestatus at international law, many provisions of the1969 Vienna Convention are considered to bebinding on all states.

9. A reliable source of practical information on treatylaw and practice is the “Treaty Handbook”,accessible through the internet athttp://untreaty.un.org, prepared by the TreatySection of the United Nations Office of LegalAffairs. Although mainly designed for the use ofgovernment officials and others involved inassisting governments on the technical aspects ofparticipation in treaties deposited with the UnitedNations Secretary-General and the registration oftreaties pursuant to article 102 of the Charter of theUnited Nations, it is of use to anyone interested intreaty law and practice. The “Handbook of FinalClauses of Multilateral Treaties”, also produced bythe Treaty Section of the United Nations Office ofLegal Affairs, is available at the same web address.

10. Article 2(1)(a) of the 1969 Vienna Conventiondefines a treaty as “an international agreementconcluded between states in written form andgoverned by international law, whether embodiedin a single instrument or in two or more relatedinstruments and whatever its particulardesignation.” Accordingly, the designationemployed in a document does not determinewhether it is a treaty. Regardless of the designation,an international agreement falling under the abovedefinition is considered to be a treaty. The term“treaty” is the generic name. The term “treaty”encompasses, among others, the terms convention,agreement, pact, protocol, charter, statute,covenant, engagement, accord, exchange ofnotes, modus vivendi, and Memorandum ofUnderstanding. As long as an instrument fallsunder the above definition, it would be consideredto be a treaty and, therefore, binding underinternational law. International organizations arealso recognized as capable of concluding treaties,depending on their constituent instruments.

11. Occasionally, some of these terms employed bydrafters and negotiators may suggest othermeanings without much consideration for theirtraditionally accepted meanings; that is, they mayalso be used to mean something other than treaties,which, on occasion, makes treaty terminologyconfusing and interpretation a problem.

12. The terms vary because they are often employed toindicate differing degrees of political or practicalsignificance. For example, a simple bilateralagreement on technical or administrativecooperation will rarely be designated to be a“covenant” or “charter”, whereas an agreementestablishing an international organization willusually not be given such labels as “agreedminutes” or “Memorandum of Understanding”.So, the nature of the labelling used to describe aninternational agreement may say something aboutits content, although this is not always the case.The two principal categories of treaties are thebilateral and the multilateral agreements, theformer having only two parties and the latter atleast two, and often involving global participation.

13. The term “treaty” can be used as a generic term oras a specific term which indicates an instrumentwith certain characteristics. There are no consistentrules to determine when state practice employs theterm “treaty” as a title for an internationalinstrument. Although in the practice of certaincountries, the term “treaty” indicates an agreementof a more solemn nature, and is usually reserved

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for regulating matters of some gravity. In the caseof bilateral agreements, affixed signatures areusually sealed. Typical examples of internationalinstruments designated as “treaties” include PeaceTreaties, Border Treaties, Delimitation Treaties,Extradition Treaties and Treaties of Friendship,Commerce and Cooperation. The designation“convention” and “agreement” appear to be morewidely used today in the case of multilateralenvironmental instruments.

14. The term “agreement” can also have a generic anda specific meaning. The term “internationalagreement” in its generic sense embraces thewidest range of international instruments. In thepractice of certain countries, the term “agreement”invariably signifies a treaty. “Agreement” as aparticular term usually signifies an instrument lessformal than a “treaty” and deals with a narrowerrange of subject matter. There is a generaltendency to apply the term “agreement” to bilateralor restricted multilateral treaties. It is employedespecially for instruments of a technical oradministrative character, which are signed by therepresentatives of government departments, andare not subject to ratification. Typical agreementsdeal with matters of economic, cultural, scientificand technical cooperation, and financial matters,such as avoidance of double taxation. Especiallyin international economic law, the term“agreement” is also used to describe broadmultilateral agreements (e.g., the commodityagreements). Today, the majority of internationalenvironmental instruments are designated asagreements.

15. The term “convention” can also have both ageneric and a specific meaning. The generic term“convention” is synonymous with the generic term“treaty.” With regard to “convention” as a specificterm, in the last century it was regularly employedfor bilateral agreements but now it is generallyused for formal multilateral treaties with a broadrange of parties. Conventions are normally openfor participation by the international community asa whole or by a large number of states. Usually,the instruments negotiated under the auspices ofthe United Nations are entitled conventions (e.g.,the 1992 Convention on Biological Diversity andthe 1982 United Nations Convention on the Law ofthe Sea). Because so many internationalinstruments in the field of environment andsustainable development are negotiated under theauspices of the United Nations, many instrumentsin those areas are called “conventions,” such as the1994 United Nations Conventions to combatDesertification in Countries experiencing serious

Drought and/or Desertification, particularly inAfrica, and the 2001 Convention on PersistentOrganic Pollutants, among others.

16. The term “charter” is used for particularly formaland solemn instruments, such as the constituenttreaty of an international organisation. The termitself has an emotive content that goes back to theMagna Carta of 1215. More recent examplesinclude the 1945 Charter of the United Nations,the 1963 Charter of the Organization of AfricanUnity and the 1981 African (Banjul) Charter onHuman and Peoples’ Rights. The 1982 WorldCharter for Nature is a resolution adopted by theGeneral Assembly of the United Nations and is nota treaty.

17. The term “protocol” is used for agreements lessformal than those entitled “treaty” or “convention”,but they also possess the same legal force. Aprotocol signifies an instrument that creates legallybinding obligations at international law. In mostcases this term encompasses an instrument whichis subsidiary to a treaty. The term is used to cover,among others, the following instruments:

• An optional protocol to a treaty is an instrumentthat establishes additional rights and obligationswith regard to a treaty. Parties to the main treatyare not obliged to become party to an optionalprotocol. An optional protocol is sometimesadopted on the same day as the main treaty, butis of independent character and subject toindependent signature and ratification. Suchprotocols enable certain parties of the treaty toestablish among themselves a framework ofobligations which reach further than the maintreaty and to which not all parties of the maintreaty consent, creating a “two-tier system.” Anexample is found in the optional protocols to the1966 International Covenant on Civil andPolitical Rights, the first optional protocol ofwhich deals with direct access for individuals tothe committee established under it.

• A protocol can be a supplementary treaty, in thiscase it is an instrument which containssupplementary provisions to a previous treaty(e.g., the 1966 Protocol relating to the Status ofRefugees to the 1951 Convention relating to theStatus of Refugees).

• A protocol can be based on and furtherelaborate a framework convention. Theframework “umbrella convention,” which setsgeneral objectives, contains the mostfundamental rules of a more general character,both procedural and substantive. Theseobjectives are subsequently elaborated by a

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protocol, with specific substantive obligations,consistent with the rules agreed upon in theframework treaty. This structure is known as theso-called “framework-protocol approach.”Examples include the 1985 Vienna Conventionfor the Protection of the Ozone Layer and its1987 Montreal Protocol on Substances thatdeplete the Ozone Layer with its subsequentamendments, the 1992 United NationsFramework Convention on Climate Changewith its 1997 Kyoto Protocol, and the 1992Convention on the Protection and Use ofTransboundary Watercourses and InternationalLakes with its 1999 Protocol on Water andHealth and its 2003 (Kiev) Protocol on CivilLiability and Compensation for Damage causedby the Transboundary Effects of IndustrialAccidents on Transboundary Waters. (Seechapters 9 and 10 of this Manual).

• A protocol of signature is another instrumentsubsidiary to a main treaty, and is drawn up bythe same parties. Such a protocol deals withadditional matters such as the interpretation ofparticular clauses of the treaty. Ratification ofthe treaty will normally also involve ratificationof such a protocol. The Protocol of ProvisionalApplication of the General Agreement on Tariffsand Trade (“GATT”) was concluded to bring the1947 GATT quickly into force in view of thedifficulties facing the ratification of theInternational Trade Organization.

18. The term “declaration” is used to describe variousinternational instruments. However, in most casesdeclarations are not legally binding. The term isoften deliberately chosen to indicate that theparties do not intend to create binding obligationsbut merely seek to declare certain aspirations.Examples include the 1992 Rio Declaration onEnvironment and Development, the 2000 UnitedNations Millennium Declaration and the 2002Johannesburg Declaration on SustainableDevelopment. Exceptionally, declarations maysometimes be treaties in the generic senseintended to be binding at international law. Anexample is the 1984 Joint Declaration of theGovernment of the United Kingdom of GreatBritain and Northern Ireland and the Governmentof the People’s Republic of China on the Questionof Hong Kong, which was registered as a treaty byboth parties with the United Nations Secretariat,pursuant to article 102 of the United NationsCharter. It is therefore necessary to establish ineach individual case whether the parties intendedto create binding obligations, often a difficult task.Some instruments entitled “declarations” were notoriginally intended to have binding force but their

provisions may have reflected customaryinternational law or may have gained bindingcharacter as customary international law at a laterstage, as is the case with the 1948 UniversalDeclaration of Human Rights.

19. Once the text of a treaty is agreed upon, statesindicate their intention to undertake measures toexpress their consent to be bound by the treaty.Signing the treaty usually achieves this purpose;and a state that signs a treaty is a signatory to thetreaty. Signature also authenticates the text and isa voluntary act. Often major treaties are openedfor signature amidst much pomp and ceremony.The United Nations Treaty Section organizesmajor theme based treaty events in conjunctionwith the annual General Assembly of the UnitedNations to encourage wider participation in thetreaties deposited with the Secretary-General. Theevents tend to encourage states to undertake treatyactions in much larger numbers than usual. Oncea treaty is signed, customary law, as well as the1969 Vienna Convention, provides that a statemust not act contrary to the object and purpose ofthe particular treaty, even if it has not entered intoforce yet.

1969 Vienna Convention on the Law of Treaties(Article 18)

“A State is obliged to refrain from acts which woulddefeat the object and purpose of a treaty when: (a)it has signed the treaty or has exchangedinstruments constituting the treaty subject toratification, acceptance or approval, until it shallhave made its intention clear not to become a partyto the treaty; or (b) it has expressed its consent to bebound by the treaty, pending the entry into force ofthe treaty and provided that such entry into force isnot unduly delayed.”

20. The next step is the ratification of the treaty.Bilateral treaties, often dealing with more routineand less politicised matters, do not normallyrequire ratification and are brought into force bydefinitive signature, without recourse to theadditional procedure of ratification.

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“The consent of a State to be bound by a treaty isexpressed by the signature of its representative when:(a) the treaty provides that signature shall have thateffect; (b) it is otherwise established that thenegotiating States were agreed that signature shouldhave that effect; or (c) the intention of the State togive that effect to the signature appears from the fullpowers of its representative or was expressed duringthe negotiation.(...)”

21. In the first instance, the signatory state is required tocomply with its constitutional and other domesticlegal requirements in order to ratify the treaty. Thisact of ratification, depending on domestic legalprovisions, may have to be approved by thelegislature, parliament, the Head of State, or similarentity. It is important to distinguish between the actof domestic ratification and the act of internationalratification. Once the domestic legal requirementsare satisfied, in order to undertake the internationalact of ratification the state concerned must formallyinform the other parties to the treaty of itscommitment to undertake the binding obligationsunder the treaty. In the case of a multilateral treaty,this constitutes submitting a formal instrumentsigned by the Head of State or Government or theMinister of Foreign Affairs to the depositary who, inturn, informs the other parties. With ratification, asignatory state expresses its consent to be bound bythe treaty. Instead of ratification, it can also use themechanism of acceptance or approval, dependingon its domestic legal or policy requirements. Anon-signatory state, which wishes to join the treatyafter its entry into force, usually does so by lodgingan instrument of accession. Reflecting a recentdevelopment in international law, some moderntreaties, such as the 1997 Convention on theProhibition of the Use, Stockpiling, Production andTransfer of Anti-Personnel Mines and on theirDestruction, make it possible for accession from thedate of opening for signature.

22. Accordingly, the adoption of the treaty text doesnot, by itself, create any international obligations.Similarly, in the case of multilateral treaties,signature by a state normally does not create legallybinding obligations. A state usually signs a treatystipulating that it is subject to ratification,acceptance or approval. It is the action ofratification, accession, acceptance, approval, etcetera, which creates legally binding rights andobligations. However, the creation of bindingrights and obligations is subject to the treaty’s entryinto force. A treaty does not enter into force and

create legally binding rights and obligations untilthe necessary conditions stipulated by it aresatisfied. For example, the expression of theparties’ consent to be bound by a specified numberof states. Sometimes, depending on the treatyprovisions, it is possible for treaty parties to agree toapply a treaty provisionally until its entry into force.

23. One of the mechanisms used in treaty law tofacilitate agreement on the text is to leave thepossibility open for a state to make a reservation onbecoming a party. A reservation modifies orexcludes the application of a treaty provision. Astate may use this option for joining a treaty eventhough it is concerned about certain provisions. Areservation must be lodged at the time of signature,or ratification, or acceptance, or approval, oraccession. The 1969 Vienna Convention dealswith reservations in its articles 19 through 23,including their formulation, their acceptance andthe issue of objecting to reservations, the legaleffects of reservations and of objections toreservations, the withdrawal of reservations and ofobjections to reservations, and the procedureregarding reservations. In general, reservations arepermissible except when they are prohibited by thetreaty, they are not expressly authorizedreservations if the treaty provides only specifiedreservations, or they are otherwise incompatiblewith the object and purpose of the treaty.

24. The Secretary-General of the United Nations, in hiscapacity as depositary of multilateral treaties,entertains late reservations, i.e. reservations lodgedafter the act of ratification, acceptance, approval oraccession. Late reservations are accepted in depositonly in the absence of any objection by a party tothe treaty. Where a treaty is silent on reservations, itis possible to lodge reservations as long as they arenot contrary to the object and purpose of the treaty.Other parties to a treaty can object to a reservationwhen it is contrary to the object and purpose of thetreaty. An objecting party can even state that it doesnot want the treaty to enter into force between thestate that made the reservation and itself but thishappens very rarely and is unusual today. Recently,it has become more common for treaties, includingmost of the recently concluded environmentaltreaties, to include provisions that prohibitreservations. Examples are the 1985 ViennaConvention for the Protection of the Ozone Layer(article 18) and its 1987 Montreal Protocol onSubstances that deplete the Ozone Layer (article18), the 1992 Convention on Biological Diversity(article 37) and its 2000 Cartagena Protocol onBiosafety (article 38).

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25. A state may also make a declaration to a treaty onbecoming party to it. A declaration simply statesthe understanding of that state with regard to atreaty provision without excluding the applicationof or modifying a treaty provision. Some treatiesprovide for mandatory and/or optionaldeclarations. These create binding obligations.Reservations are lodged by a state at signature orwhen expressing its consent to be bound by atreaty. Where a reservation is made on signature itmust be confirmed on ratification. A declaration, incontrast, can be made at any time althoughnormally they are deposited on signature or whenthe consent to be bound is expressed.

26. An important issue is how to make changes to analready agreed treaty text. The treaty itself normallyprovides for a procedure to change its provisions,usually by amending the specific provision.Depending on the provisions of the treaty,amendment of a treaty usually needs the consensusof all parties or a specified majority such as two-thirds of the parties, who must be present andvoting. Besides amending, there is also thepossibility of revising a treaty. The term “revision”is typically reserved for a more profound change oftext.


“1. Unless the treaty otherwise provides, theamendment of multilateral treaties shall begoverned by the following paragraphs.2. Any proposal to amend a multilateral treaty asbetween all the parties must be notified to all thecontracting States, each one of which shall havethe right to take part in:

(a) the decision as to the action to be taken inregard to such proposal;

(b) the negotiation and conclusion of anyagreement for the amendment of the treaty.

3. Every State entitled to become a party to thetreaty shall also be entitled to become a partyto the treaty as amended.4. The amending agreement does not bind anyState already a party to the treaty which does notbecome a party to the amending agreement;Article 30, paragraph 4(b), applies in relation tosuch State.5. Any State which becomes a party to the treatyafter the entry into force of the amendingagreement shall, failing an expression of a differentintention by that State:

(a) be considered as a party to the treaty asamended; and

(b) be considered as a party to the unamendedtreaty in relation to any party to the treatynot bound by the amending agreement.”

27. Another important term relating to treaty law is thedepositary. A depositary is usually designated inthe text of a multilateral treaty. The depositary isthe custodian of the treaty and is entrusted with thefunctions specified in article 77 of the 1969 ViennaConvention.

28. Among others, the depository acts as the“collection point.” A state will transmit itsinstrument of ratification, acceptance, approval,accession, or its reservation or denunciation to thedepositary, who notifies other states. Usually, theChief Executive of an international organization isdesignated as the depositary. States deposit theirtreaty actions with the depositary instead of with allother states parties to the treaty. Often, theSecretary-General of the United Nations isdesignated as the depositary. The Secretary-General is at present the depositary for over 500multilateral treaties, including over 55 Multilateral


“1. The functions of a depositary, unless otherwiseprovided in the treaty or agreed by the contractingStates, comprise in particular: (a) keeping custody of the original text of the

treaty and of any full powers delivered to thedepositary;

(b) preparing certified copies of the original textand preparing any further text of the treaty insuch additional languages as may be requiredby the treaty and transmitting them to theparties and to the States entitled to becomeparties to the treaty;

(c) receiving any signatures to the treaty andreceiving and keeping custody of anyinstruments, notifications andcommunications relating to it;

(d) examining whether the signature or anyinstrument, notification or communicationrelating to the treaty is in due and proper formand, if need be, bringing the matter to theattention of the State in question;

(e) informing the parties and the States entitled tobecome parties to the treaty of acts,notifications and communications relating tothe treaty;

(f) informing the States entitled to become partiesto the treaty when the number of signatures orof instruments of ratification, acceptance,approval or accession required for the entryinto force of the treaty has been received ordeposited;

(g) registering the treaty with the Secretariat of theUnited Nations;

(h) performing the functions specified in otherprovisions of the present Convention.

(...)”

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Environmental Agreements. Individual states, andvarious international and regional organizations,are also designated as depositaries. There are overtwo thousand multilateral treaties at present.Bilateral treaties are deposited with the two statesinvolved, since a bilateral treaty is usually signed induplicate. A regional treaty is often deposited witha regional organization.

29. All treaties entered into by members of the UnitedNations must be registered with the UnitedNations Secretariat pursuant to article 102 of theCharter of the United Nations once they haveentered into force. Registered treaties arepublished in the United Nations Treaty Series, themost authoritative collection of existing treaties.The United Nations Treaty Series contains over fiftythousand treaties and a similar number of relatedtreaty actions. This is done to ensure transparency.The United Nations Treaty Series is available onthe internet at http://untreaty.un.org.

30. Entry into force is the moment in time when atreaty becomes legally binding for the parties. Theprovisions of the treaty determine the momentupon which the treaty enters into force. If there isnothing governing the entry into force in the treaty,the general rule is that the treaty will enter intoforce when all the states participating in draftingthe treaty have expressed their consent to bebound. It is possible for the treaty to stipulate aspecific date, such as 1 January 2007, for its entryinto force.

31. In most cases, the treaty enters into force when aspecified number of states has ratified it. Aprovision in the treaty that governs its entry intoforce will stipulate that entry into force will occurafter a certain time period has elapsed (such as 90days) after the tenth (i.e., 1973 Convention onInternational Trade in Endangered Species of WildFauna and Flora), fifteenth (i.e., 1979 Conventionon the Conservation of Migratory Species of WildAnimals), twentieth (i.e., 1985 Vienna Conventionfor the Protection of the Ozone Layer), thirtieth(1992 Convention on Biological Diversity) orfiftieth (i.e., 1992 United Nations FrameworkConvention on Climate Change, 1994Desertification Convention ratification, accession,approval, acceptance, etc. A treaty enters intoforce only for the states that have ratified it. (Seealso chapter 14 of this Manual).

32. A treaty can also specify certain additionalconditions regarding the states that have to ratifythe treaty before it can enter into force. Forexample, the 1987 Montreal Protocol to the

Vienna Convention includes the provision that itwould enter into force on 1 January 1989,provided that there were at least elevenratifications of states which were responsible in1986 for at least two-thirds of the estimated globalconsumption of the substances the protocol iscovering (article 16). The entry into force of the1997 Kyoto Protocol is also subjected to strictconditions- it will enter into force “on the ninetiethday after the date on which not less than fifty-fiveparties to the Convention, incorporating partiesincluded in Annex I which accounted in total forat least 55% of the total carbon dioxide emissionsfor 1990 of the parties included in Annex I, havedeposited their instruments of ratification,acceptance, approval or accession ”(article 24).

2. Customary International Law

33. The second most important source of internationallaw, and thus of international environmental law,is customary international law. Before treatiesbecame as important as they are today, customaryinternational law was the leading source ofinternational law: the way things have alwaysbeen done becomes the way things must be done.

34. Once a rule of customary law is recognized, it isbinding on all states, because it is then assumed tobe a binding rule of conduct. Initially, customaryinternational law as we know it today developedin the context of the evolving interaction amongEuropean states. However, there is an increasinglyprominent group of writers who suggest that otherregions of the world also contributed to theevolution of customary international law.

35. There are two criteria for determining if a rule ofinternational customary law exists: (1) the statepractice should be consistent with the “rule ofconstant and uniform usage” (inveterataconsuetudo) and (2) the state practice existsbecause of the belief that such practice is requiredby law (opinio juris). Both elements arecomplementary and compulsory for the creationof customary international law. Since customarylaw requires this rather heavy burden of proof andits existence is often surrounded by uncertainties,treaties have become increasingly important toregulate international relations among states.

36. Customary law was mentioned in relation to the1948 Universal Declaration of Human Rights.Namely, the provisions of the declaration,although not specifically intended to be legallybinding, are now generally accepted asconstituting customary international law.

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Customary international law is as legally bindingas treaty law. It can be argued that customaryinternational law has a wider scope: a treaty isapplicable only to its parties and it does not createeither rights or obligations for a third state withoutits consent, but customary law is applicable to allstates (unless it constitutes regional custom).

37. Occasionally, it is difficult to distinguish clearlybetween treaty law and customary law. Forexample, the 1982 United Nations Convention onthe Law of the Sea (“UNCLOS”) comprises newinternational legal norms as well as codification ofexisting customary law. Between the date of itsadoption in 1982 and the date it entered into forcein 1994, non-parties to the treaty, in practice,followed many of the norms incorporated into theUNCLOS. It can therefore be said that UNCLOSlargely represents customary law, which is bindingon all states. (For a discussion on UNCLOS as wellas Marine Living Resources see chapters 13 and17 herein).

38. Two specific terms related to the concept ofcustomary international law require furtherattention. The first one is “soft law.” This termdoes not have a fixed legal meaning, but it usuallyrefers to any international instrument, other than atreaty, containing principles, norms, standards orother statements of expected behaviour. Often,the term soft law is used as synonymous with non-legally binding instrument, but this is not correct.An agreement is legally binding or is not legallybinding. A treaty that is legally binding can beconsidered to represent hard law; however, a non-legally binding instrument does not necessarilyconstitute soft law. The consequences of a non-legally binding instrument are not clear.Sometimes it is said that they contain political ormoral obligations, but this is not the same as softlaw. Non-legally binding agreements emergewhen states agree on a specific issue, but they donot, or do not yet, wish to bind themselves legally;nevertheless they wish to adopt certain non-binding rules and principles before they becomelaw. This approach often facilitates consensus,which is more difficult to achieve on bindinginstruments. There could also be an expectationthat a rule or principle adopted by consensus,although not legally binding, will nevertheless becomplied with. Often the existence of non-legallybinding norms will fuel civil society activism tocompel compliance. The Non-Legally BindingAuthorative Statement of Principles for a GlobalConsensus on the Management, Conservation andSustainable Development of all Type of Forests(“Forest Principles”), for example, are an

illustration of this phenomenon. The relationshipbetween the Forest Principles and a binding forestregime is that they are shaping or will shapeconsensus for a future multilateral convention, orare building upon a common legal position thatwill possibly come to constitute customaryinternational law.

39. The second term is “peremptory norm” (juscogens). This concept refers to norms ininternational law that cannot be overruled otherthan by a subsequent peremptory norm. They areof the highest order. Jus cogens has precedenceover treaty law. Exactly which norms can bedesignated as jus cogens is still subject to somecontroversy. Examples are the ban on slavery, theprohibition of genocide or torture, or theprohibition on the use of force.

3. General Principles of Law

40. The third source of international law, as includedin article 38(1)(c) of the Statute of the InternationalCourt of Justice, are general principles of law. Theprinciples that are considered to be specificallyrelevant to international environmental law will bediscussed in chapter 3. There is no universallyagreed upon set of general principles andconcepts. They usually include both principles ofthe international legal system as well as thosecommon to the major national legal systems of theworld. The ICJ will sometimes analyse principlesof domestic law in order to develop an appropriaterule of international law.

41. The ICJ, in its 1996 Advisory Opinion on Legalityof the Threat or Use of Nuclear Weapons, pointsto the Martens Clause as an affirmation that theprinciples and rules of humanitarian law apply tonuclear weapons. In his dissenting opinion, JudgeShahabuddeen cites the Martens Clause: “theinhabitants and the belligerents remain under theprotection and the rule of the principles of the lawof nations, as they result from the usagesestablished among civilized peoples, from thelaws of humanity, and the dictates of the publicconscience”. Judge Shahabuddeen states that theMartens Clause provided its own self-sufficientand conclusive authority for the proposition thatthere were already in existence principles ofinternational law under which considerations ofhumanity could themselves exert legal force togovern military conduct in cases in which norelevant rule was provided by conventional law. Itcan be construed that some treaties reflect, codifyor create general principles of law.

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4. Judicial Decisions and Qualified Teachings

42. The fourth source enumerated in article 38(1)(d) ofthe Statute of the International Court of Justice,judicial decisions and the teachings of the mosthighly qualified publicists of the various nations, isqualified as an additional means for thedetermination of rules of law. Decisions of the ICJitself or of other international tribunals, andwritings of publicists are considered if: there is notreaty on a particular contentious issue ininternational law, no customary rule ofinternational law and no applicable generalprinciples of international law. Many internationallaw journals publish articles by eminent lawyersaddressing a great variety of issues pertaining to allaspects of international law.

43. Another source for the category “highly qualifiedpublicists” is the International Law Commission(“ILC”), established by the United Nations GeneralAssembly in 1947 to promote the progressivedevelopment of international law and itscodification. The ILC, which meets annually, iscomposed of thirty-four members who are electedby the General Assembly for five year terms andwho serve in their individual capacity, thus not asrepresentatives of their governments. Most of theILC’s work involves the preparation of drafts ontopics of international law. Some topics arechosen by the ILC and others referred to it by theGeneral Assembly or the Economic and SocialCouncil. When the ILC completes draft articles ona particular topic, the General Assembly usuallyconvenes an international conference ofplenipotentiaries to negotiate the articles of aconvention, which is then open to states tobecome parties. Examples of topics on which theILC has submitted final drafts or reports includeissues pertaining to state succession, immunitiesand treaty law.

44. Article 38 is not intended to provide an exhaustivelist of sources of international law. There areother possible sources which the ICJ might relyon to assist in its deliberations, such as acts ofinternational or regional organizations,Resolutions of the United Nations SecurityCouncil and the United Nations GeneralAssembly, and Regulations, Decisions andDirectives of the European Union, among others.

45. Also, decisions of the Conference of the Parties toa MEA, and conference declarations orstatements, may contribute to the development ofinternational law.

III. Negotiating Multilateral EnvironmentalAgreements

46. There is no definite procedure established onhow to negotiate a Multilateral EnvironmentalAgreement. Some common elements, however,may be derived from the practice of states over thelast few decades.

47. The first step in the negotiation process is for anadequate number of countries to show interest inregulating a particular issue through a multilateralmechanism. The existence of a commonchallenge and the need for a solution is necessary.In certain cases, the number of acutely interestedparties may be as few as two. For example, thedraft Convention on Cloning was tabled in theSixth Committee of the General Assembly byGermany and France. A counter proposal wasadvanced by the United States of America. Inother cases, a larger number of countries need todemonstrate a clear desire for a new instrument.Once this stage of establishing a common interestin addressing a global problem is established,states need to agree on a forum for the negotiationof a multilateral instrument. Usually an existinginternational organization such as the UnitedNations or an entity such as the United NationsEnvironment Programme (“UNEP”) will providethis forum. The United Nations has frequentlyestablished special fora for the negotiation of MEAthrough General Assembly resolutions. The 1992United Nations Framework Convention onClimate Change (“UNFCCC”) was negotiated by aspecially established body - the IntergovernmentalNegotiating Committee (“INC”). It is also possibleto conduct the negotiations in a subsidiary bodyof the General Assembly such as the SixthCommittee, which is the Legal Committee. Treatybodies could also provide the fora for suchnegotiations. For example, pursuant to article19(3) of the 1992 Convention on BiologicalDiversity, the Conference of the Parties, by itsdecision II/5, established an Open-Ended Ad HocWorking Group on Biosafety to develop the draftprotocol on biosafety, which later resulted in anagreed text and subsequent adoption of the 2000Cartagena Protocol on Biosafety.

48. The negotiating forum will start the negotiatingprocess by establishing a committee or conveningan international conference to consider theparticular issue. This could take many forms,from an informal ad hoc group of governmentalexperts to a formal institutional structure as in thecase of the INC for the negotiation of the 1992UNFCCC. It is also possible for an international

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organization to establish a subsidiary body toprepare a text for consideration and adoption byan Intergovernmental Diplomatic Conference.Certain treaties were first proposed by theInternational Law Commission and subsequentlynegotiated and adopted by intergovernmentalbodies. Governments also often draft negotiatingtexts. During the negotiations, delegates generallyremain in close contact with their governments;they have preliminary instructions which areusually not communicated to other parties. Atany stage they may consult their governmentsand, if necessary, obtain fresh instructions.Governments could also change their positionsdepending on developments. Depending on theimportance of the treaty under negotiation,governments may expend considerable resourcesin order to safeguard and advance their ownnational interests in the context of arriving at aglobal standard. In many cases this may requirebuilding numerous alliances and interest groupsin order to advance national positions. TheEuropean Union usually operates as a block inMEA negotiations but often formed alliances withother like-minded countries The host organizationwill organize preparatory committees, workinggroups of technical and legal experts, scientificsymposia and preliminary conferences. The hostbody will also provide technical back-up to thenegotiators.

49. Increasingly, the need for universal participationin the negotiation of MEA has beenacknowledged. Consequently, developingcountries are often provided financial assistanceto participate in environmental negotiations.Given this opportunity and the widelyacknowledged need for developing countries tobe closely engaged in these negotiations in viewof the global nature of environmental challenges,they have the possibility to exert a greaterinfluence on the future development of legalprinciples in the environmental field than wasavailable to them in other treaty negotiating fora.

50. In the negotiating forum, states are the mostimportant actors, since most treaties only carrydirect obligations for states. However, the properimplementation of and compliance with a treatycannot be achieved without involving a wholerange of non-state actors, including civil societygroups, Non-Governmental Organizations(“NGOs”), scientific groups, and business andindustry, among others. Therefore theparticipation of these groups in the negotiatingprocesses that lead to an MEA is now more readilyfacilitated. Some national delegations to

intergovernmental negotiations now containNGO representatives while some smaller statesmight even rely on NGOs to represent them atsuch negotiations. In such situations, NGOs mayhave a notable influence on the outcomes of thenegotiations.

51. The role of NGOs has often been significant in thetreaty negotiating processes, as well as instimulating subsequent developments withintreaty regimes. An example is the influence of theInternational Council for Bird Preservation (nowBirdLife International) and the InternationalWaterfowl and Wetlands Research Bureau, twoNGOs, in the conclusion and on theimplementation of the 1971 Ramsar Conventionon Wetlands. NGO influence is achieved in mostcases through the mechanism of participation asobservers, in international organizations, at treatynegotiations, and within treaty institutions. SomeNGOs are well prepared with extensive briefs.Some national delegations rely on NGOs forbackground material. The inclusion of NGOsmay be seen as representing a wider trend towardsviewing international society in terms broaderthan a community of states alone and in theprogressive democratization of international normmaking processes. This might indicate adevelopment in international law making andimplementation with significant implications forthe future.

52. In the Intergovernmental Negotiating Committeeprocess, one ideally starts with the identification ofneeds and goals, before the political realities get inthe way. Research must have been undertakenand show the need for a legally bindinginternational instrument to address the perceivedproblem. This phase may sound logical, but asthe negotiations surrounding climate changeshow, states can always invoke opinions ofscientists, deviating from the majority, who arguemore in line with their national interests. Duringtreaty negotiations, states will often cite scientificevidence that justifies the general policies theyprefer.

53. At the time the first formal discussions take place,information has been disseminated, thepreliminary positions of states are established, andthe initial scope of the agreement is furtherdefined. It is also likely that interested states havemade representations concerning their owninterests to other states using diplomatic channels.Then the long process to international consensus-building begins, often lasting years and with manylengthy drafts, negotiated over and over again.

11


54. Negotiations may be open-ended in time orestablished for a limited period. For example, theUnited Nations Convention on the Law of the Seanegotiations took nearly ten years to complete,while the negotiations for the 1992 Convention onBiological Diversity were concluded in aboutfifteen months.

55. Once the draft text has been negotiated it needs tobe adopted and “opened” for signature. The textitself is usually finalised by the negotiators andmight even be initialled at a final meeting ofplenipotentiaries. Most United Nations-sponsoredtreaties are adopted in the six official languages ofthe organization. If the negotiations had beenconducted in one language (now, usually English)the text is formally translated into the other officiallanguages. The mechanism of a final act mightalso be employed to adopt the text. For thispurpose, a conference of plenipotentiaries mightbe convened. These are representatives ofgovernments with the authority to approve thetreaty. Subsequently, the adopted text will beopened for signature.

56. Where a treaty is to be deposited with theSecretary-General of the United Nations, it isnecessary that the Treaty Section of the UnitedNations be consulted in advance, particularly withregard to the final clauses.

57. As mentioned above, international environmentaltreaty making may involve a two-step approach,the “Framework Convention-Protocol” style. Inthis event, the treaty itself contains only generalrequirements, directions and obligations.Subsequently the specific measures and detailswill be negotiated, as happened with the 2000Cartagena Protocol on Biosafety with the 1992Convention on Biological Diversity. Or, additionalnon-legally binding instruments can elaborate onthese measures to be taken by the parties, as wasthe case with the 2002 Bonn Guidelines onAccess to Genetic Resources and Fair andEquitable Sharing of the Benefits Arising out oftheir Utilization, with the same convention. Theconvention-protocol approach allows countries to“sign on” at the outset to an agreement even ifthere is no agreement on the specific actions thatneed to be taken under it subsequently. Amongthe major shortcomings of the convention-protocol approach is that it encourages a processthat is often long and drawn out.

IV. Administering Treaties

58. Treaties do not only create rights and obligationsfor state parties, they often also create their own

administrative structure to assist parties to complywith their provisions and to provide a forum forcontinued governance.

59. Environmental treaties usually rely on voluntarycompliance with their obligations, rather thanon coerced compliance. Accordingly, there is atendency to develop non-compliancemechanisms designed to secure compliance bythe parties with the terms of a treaty or decisions ofthe Conference of the Parties (“COP”) throughvoluntary means. The emphasis in these non-compliance mechanisms is to assist parties to meettheir obligations rather than identify guilt in non-compliers and impose punitive sanctions. Even inthe absence of a formal procedure, non-compliance problems are likely to be handled in asimilar way in many environmental regimes.Non-compliance procedures are best understoodas a form of dispute avoidance or alternativedispute resolution, in the sense that resort tobinding third party procedures is avoided. Thetreaty parties will instead seek to obtaincompliance through voluntary means and in theprocess reinforce the stability of the regime as awhole.

60. An example is the non-compliance procedureadopted by the parties to the 1987 MontrealProtocol on Substances that Deplete the OzoneLayer. Whenever there are compliance problems,the matter is referred to an implementationcommittee consisting of ten parties, whose maintask is to consider and examine the problem andthen find an amicable solution based on the 1987Montreal Protocol. It is possible for a party itself todraw the attention of the implementing committeeto its inability to comply with the Protocol with aview to obtaining assistance with compliancemeasures.

61. Breach of an environmental treaty is unlikely tojustify punitive action. Punitive action is generallyavoided by states in favour of softer non-compliance procedures which rely oninternational supervisory institutions to bring aboutcompliance through consultation and practicalassistance. Effective supervision of the operationand implementation of treaty regimes oftendepends on the availability of adequateinformation.

62. Most environmental treaties establish aConference of the Parties, a Secretariat, andsubsidiary bodies.

63. The COP forms the primary policy-making organof the treaty. All parties to a treaty meet, usually

12


annually or biannually, and survey the progressachieved by the treaty regime, the status ofimplementation, possibilities for amendments,revisions, and additional protocols. For examplearticle 18 of the 1998 Convention on the PriorInformed Consent Procedure for CertainHazardous Chemicals and Pesticides inInternational Trade (“PIC Convention”) held inRotterdam, the Netherlands.

1998 Convention on the Prior Informed ConsentProcedure for Certain Hazardous Chemicals and

Pesticides in International Trade (Article 18)

“1.A Conference of the Parties is herebyestablished.

2. The first meeting of the Conference of theParties shall be convened by the ExecutiveDirector of UNEP and the Director-Generalof FAO, acting jointly, no later than one yearafter the entry into force of this Convention.Thereafter, ordinary meetings of theConference of the Parties shall be held atregular intervals to be determined by theConference. (…)

4. The Conference of the Parties shall byconsensus agree upon and adopt at its firstmeeting rules of procedure and financialrules for itself and any subsidiary bodies, aswell as financial provisions governing thefunctioning of the Secretariat.

5. The Conference of the Parties shall keepunder continuous review and evaluation theimplementation of this Convention. It shallperform the functions assigned to it by theConvention and, to this end, shall:a) Establish, further to the requirements of

paragraph 6 below, such subsidiarybodies, as it considers necessary for theimplementation of the Convention;

b) Cooperate, where appropriate, withcompetent international organizationsand intergovernmental and non-governmental bodies; and

c) Consider and undertake any additionalaction that may be required for theachievement of the objectives of theConvention.(...)”

64. The Secretariat of a convention is responsible forthe daily operations. In general, it provides forcommunication among parties, organizesmeetings and meeting documents in support ofthe COP, assists in implementation and it mayassist in activities such as capacity building. TheSecretariat gathers and distributes information andit increasingly coordinates with other legalenvironmental regimes and secretariats. UNEP isadministering secretariat functions to thefollowing MEAs which are addressed in this

Manual respectively in chapters 15 and 16, 14 inthe case of Biodiversity Cluster, 11, 12 and 9 in thecase of Chemicals and Hazardous Wastes Cluster:

• Biodiversity Cluster:

a) 1992 Convention on Biological Diversityb) 2000 Cartagena Protocol on Biosafetyc) 1979 (Bonn) Convention on the

Conservation of Migratory Species ofWild Animals, Related Agreements andMemoranda of Understandingconcerning Specific Species concludedunder the Auspices of CMS

d) 1973 Convention on InternationalTrade in Endangered Species

• Chemicals and Hazardous Wastes Cluster:

a) 1989 Basel Convention on the Controlof Transboundary Movements ofHazardous Wastes and their Disposal

b) 1999 Protocol on Liability andCompensation to the Basel Convention

c) 2001 (Stockholm) Convention onPersistent Organic Pollutants

d) 1998 (Rotterdam) Convention on thePrior Informed Consent Procedure forCertain Hazardous Chemicals andPesticides in International Trade

e) 1985 Vienna Convention for theProtection of the Ozone Layer

f) 1987 Montreal Protocol on Substancesthat Deplete the Ozone Layer

In addition, UNEP has supported the negotiations oftwelve conventions and action plans for theprotection of the various regional seas. There arealso stand-alone secretariats of MEAs under theUnited Nations umbrella such as the DesertificationConvention Secretariat, and secretariats of regionalagreements with regional organizations.

65. Many environmental regimes provide for ascientific commission or other technicalcommittee, comprised of experts. In most cases,they include members designated by governmentsor by the COP, although they generally functionindependently. They can be included in the treatyor by a decision of the COP. For example, the 1992Convention and Biological Diversity has aSubsidiary Body on Scientific, Technical andTechnological Advice, the 1998 PIC Conventionprovides for a Chemical Review Committee, andthe Committee for Environmental Protection wasestablished by the 1991 Protocol on Environmental

13


Protection to the Antarctic Treaty. They can addressrecommendations or proposals to the COP or toother treaty bodies. They usually provideinformative reports in the area of theirspecialization related to the convention and itsimplementation.

Dr. Palitha Kohona, Chief, Treaty Section, UnitedNations Office of Legal Affairs

Barbara Ruis, Legal Officer, Division of PolicyDevelopment and Law, UNEP

Resources

Internet Materials

HANDBOOK OF FINAL CLAUSES OF MULTILATERAL TREATIES: available athttp://untreaty.un.org/English/TreatyHandbook/hbframeset.htm

INTERNATIONAL COURT OF JUSTICE: available at http://www.icj-cij.org/

TREATY HANDBOOK: available at http://untreaty.un.org/English/TreatyHandbook/hbframeset.htm

TREATY REFERENCE GUIDE: available at http://untreaty.un.org/ENGLISH/guide.asp#treaties

Text Materials

A. Aust, MODERN TREATY LAW AND PRACTICE (Cambridge University Press, 2000).

D. Shelton, International Law and ‘Relative Normativity’, in INTERNATIONAL LAW, (M. Evans ed., 2003).

H. Thirlway, The Sources of International Law, in INTERNATIONAL LAW, (M. Evans ed., 2003).

J. DiMento, THE GLOBAL ENVIRONMENT AND INTERNATIONAL LAW (University of Texas Press, 2003).

J. Kaufmann, CONFERENCE DIPLOMACY (1970).

P. Birnie & A. Boyle, INTERNATIONAL LAW & THE ENVIRONMENT (Oxford University Press, 2002).

L. D. Guruswami, Sir G.W.R. Palmer, B. H. Weston & J. C. Carlson, INTERNATIONAL ENVIRONMENTAL LAW AND WORLD

ORDER (Westgroup, 1999).

L. Susskind, ENVIRONMENTAL DIPLOMACY, NEGOTIATING MORE EFFECTIVE GLOBAL AGREEMENTS (1994).

M. Fitzmaurice, The Practical Working of the Law of Treaties, in INTERNATIONAL LAW (M. Evans ed., 2003).

Palitha T.B. Kohona, THE ROLE OF NON STATE ENTITIES IN THE MAKING OF INTERNATIONAL NORMS AND THEIR IMPLEMENTATION,IJWI (September 2001).

R.P. Arnand, The Influence of History on the Literature of International Law, in THE STRUCTURE AND PROCESS OF

INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY, DOCTRINE AND THEORY (States, MacDonald & Johnston eds., 1983).

Chapter 2 THE ROLE OF NATIONAL ENVIRONMENTAL LAW

15

2. THE ROLE OF NATIONAL ENVIRONMENTAL LAW

I. Introduction

1. Environmental law is a broad category of laws thatinclude laws that specifically addressenvironmental issues and more general laws thathave a direct impact on environmental issues. Thedefinition of what constitutes an environmental lawis as wide as the definition of environment itself.“Environment” in the modern context ofsustainable development encompasses thephysical and social factors of the surroundings ofhuman beings and includes land, water,atmosphere, climate, sound, odour, taste, energy,waste management, coastal and marine pollution,the biological factors of animals and plants, as wellas cultural values, historical sites, and monumentsand aesthetics. Environmental law can begenerally defined as the body of law that containselements to control the human impact on the Earthand on public health.

2. Environmental law can be divided into two majorcategories namely, international environmental lawand national environmental law. The relationshipbetween international environmental law andnational environmental law is mainly on thepurposes for which each of the two categories oflaw were created as well as on the scope that eachof the two types of law covers. Internationalenvironmental law is a law developed betweensovereign states to develop standards at theinternational level and provide obligations forstates including regulating their behaviour ininternational relations in environmental relatedmatters. (See chapters 1, 2, 3, 4, 5, 7, 8, 9, 10, 11,etc). National environmental law on the otherhand applies within a state and regulates therelations of citizens among each other and with theexecutive within the state. International law canfind its application in national law when a statetakes measures to implement its internationalobligations through enactment and enforcement ofnational legislation. In most of the chapters of themanual, a section on National Implementationrefers to national legislation, institutions andcapacity building. All that helps build up thischapter. This chapter will focus on the role ofnational environmental law.

3. National environmental law includes rules at thenational level that protect the environment. Theseconsist of the legislation, standards, regulations,

institutions and administrations adopted to controlactivities damaging to the environment within astate. This would include inter alia frameworkenvironmental legislation, sectoral legislation andincidental legislation, and regulations, dependingon the culture of a given country.

II. Foundations of National Environmental Law

4. In any society, the role of law generally reflects andshapes a society’s norms. Laws can changeattitudes towards particular aspects of life, andcontrol behaviour. Laws can be defined as codesof conduct appropriate to the values of thecommunity drafting and enforcing them. Thereare, of course, many types and sources of law, suchas common law, civil law, customary or traditionallaw, canon law, and islamic law. These may bewritten or unwritten, but all define acceptablebehaviour within that society. Law is one of thekey instruments of social regulation establishedthrough norms of conduct, and creation of therequired machinery with their accompanyingempowerment for ensuring compliance. Codes ofconduct with regard to the environment arecontained in all sources of law, some of which dateback thousands of years.

5. There are several types of environmental laws andnational legislative approaches to environmentalmanagement. These include, inter alia, thefollowing:

• Constitutions• Sectoral laws• Framework environmental laws• Comprehensive codification of environmental

laws• Penal codes• Implementation of international environmental

legal instruments

6. National constitutions provide a source ofenvironmental law when they provideenvironmental rights for the citizens. In a numberof countries the constitutional right to anenvironment not harmful to citizens’ health havebeen interpreted in Court to provide redress wheresuch an environment was lacking. This has furtherstrengthened environmental law and enhancedaccess to justice by providing redress to the partiesin a suit.

7. Sectoral legislation addresses specific aspects of theenvironment and human activity such as a law onwater, land, energy, forest, wildlife, marineenvironment, or a law establishing a national parkor legislation to control factories. The sectoral laws

are characterized by fragmented anduncoordinated sectoral legal regimes that wereinitially developed to facilitate resource allocationand to deal with the environmentally adverseeffects of resource exploitation. Gradually, tosupplement the existing sector laws, were anti-pollution laws, as the process of industrializationcreated new environmental risks. The main causeof the development of framework laws in recentyears was the realization of synergies within theecosystems and the linkages in environmentalstresses that not even a combination of sectorspecific resource legislation and anti-pollution lawswere sufficient to safeguard the quality of theenvironment or to guarantee sustainabledevelopment.

8. The framework environmental legislation is a singlelaw that provides the legal and institutionalframework for environmental management withoutseeking to legislate comprehensively. It wasdeveloped in response to the deficiencies inherentin the sectoral approach to environmentalmanagement. It represents an integrated,ecosystem-oriented legal regime that permits aholistic view of the ecosystem, the synergies andinteractions within it, and the linkages inenvironmental stresses and administrativeinstitutions. The flexibility is achieved throughinvesting relevant authorities with wide regulatorypowers to promulgate subsidiary legislationaddressing specific environmental issues andcompleting the generality of the framework statute.In addition the framework law provides a basis anda reference point for coordination of sectoralactivities and the rationalization and harmonizationof sectoral legal regimes. This is the reason forreferring to the framework law as the umbrellalegislation to signify its overarching role as aframework environmental law which provides forthe legal and institutional framework forenvironmental management, this underlining theneed for regulations as necessary or as a state is ableto manage and fund.

9. Although the framework laws addressenvironmental problems that are unique to eachcountry and reflect specific socio-economicsituations and legal traditions, some commonelements can be discerned. These may bereferred to as the basic elements of a frameworkenvironmental statute and should be used as ageneral guide for purposes of legislative drafting.The framework legislation lays down the basicprinciples without any attempt at codification. Itnormally entails and covers cross sectoral issuessuch as indicated in the box below. Thelegislation may also establish links and hierarchy

with other laws impacting the environment. Theframework environmental legislation may coverthe following issues:

• Definitions; • Declaration of general objectives and

principles; • Establishment of relevant environmental

management institutions includingstreamlining institutional arrangements, andthe definition of the common proceduralprinciples for environmental decision-making applicable to all sectors;

• Environmental policy formulation andplanning;

• Environmental impact assessment andaudits;

• Environmental quality criteria and standards; • Integrated pollution control; • Environmental management; • Public participation in decision-making and

implementation; • Environmental inspectorates; • Dispute settlement procedures; and • Establishes links and hierarchy with other

laws impacting the environment.

10. This would include the institutional issues such aswhich government authority will be in charge ofprotecting the environment, controlling pollutionand, enforcing the laws and the coordinatingmechanisms.

11. Most countries have both sectoral legislation anda framework environmental legislation whileother countries have one or the other or neither.There are countries that have consolidated all oftheir environmental laws in one singlecomprehensive statute or code. For exampleSweden has consolidated some sixteen nationallegislations into a code.

12. Criminal laws in the form of penal codes andother incidental legislation establishing liability intort law are legislation, which although notspecifically intended to address environmentalissues, contain some elements that have an impacton environmental issues by having environmentalrelated laws defined as punishable offenses madeagainst the state. This might include, for example,criminal legislation that contains a prohibition onpolluting or more generally applicable nuisancecrimes involving odour, noise or other noxioussubstances.

13. In some cases, these national laws are a reflectionof international norms or commitments and areadopted with the intent of implementing

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THE ROLE OF NATIONAL ENVIRONMENTAL LAW Chapter 2Chapter 2

international environmental conventions. Forexample, legislation must be enacted at thenational level to create a management authority toissue export permits for species protected underthe 1973 Convention on the International Trade inEndangered Species of Wild Fauna and Flora.Further discussion on the implementation ofMultilateral Environmental Agreements (“MEAs”)at the national level is found below.

1. Environmental Law and Sustainable Development

Agenda 21 and World Summit on SustainableDevelopment Plan of Implementation

14. To provide an effective legal and regulatoryframework for sustainable development theUnited Nations Conference on Environment andDevelopment held in Rio de Janeiro, Brazil, in1992 (“1992 UNCED”), declared as its basis foraction in Chapter 8, para.13 of Agenda 21 that“laws and regulations suited to country-specificconditions are among the most importantinstruments for transforming environment anddevelopment policies into action, not onlythrough “command and control” methods, butalso as a normative framework for economicplanning and market instruments”.

15. In 1992 UNCED observed, however, that althoughthe volume of legal texts in this field is steadilyincreasing, much of the law-making in manycountries remains ad hoc and piecemeal, or hasnot been endowed with the necessary institutionalmachinery and authority for enforcement andtimely adjustment. 1992 UNCED concluded thatto effectively integrate environment anddevelopment in the policies and practices of eachcountry, it is essential to develop and implementintegrated, enforceable and effective laws andregulations that are based upon sound social,ecological, economic and scientific principles.

16. The 2002 World Summit on SustainableDevelopment (“WSSD”) Plan of Implementationalso calls upon countries to promote sustainabledevelopment at the national level by, inter alia,enacting and enforcing clear and effective lawsthat support sustainable development. As for thekind of institutions national environmentallegislation should set up or strengthen, the WSSDPlan of Implementation, underlines theimportance of national governments to strengtheninstitutional frameworks for sustainabledevelopment at the national level.

17. In Paragraph 162 of the WSSD Plan ofImplementation, “States are required to promotecoherent and coordinated approaches toinstitutional frameworks for sustainabledevelopment at all national levels, includingthrough, as appropriate, the establishment orstrengthening of existing authorities andmechanisms necessary for policy-making,coordination and implementation andenforcement of laws...” Paragraph 163 establishesthat “... countries have a responsibility tostrengthen governmental institutions, including byproviding necessary infrastructure and bypromoting transparency, accountability and fairadministrative and judicial institutions.”Paragraph 164 calls upon “all countries topromote public participation, including throughmeasures that provide access to informationregarding legislation, regulations, activities,policies and programmes...”

18. Among components listed in chapter 8 of Agenda21, and the WSSD Plan of Implementation whichstand out that concerning the effectiveness of lawsare country specific national environmental laws;adequate laws; effective laws; compliance andenforcement of national environmental laws andstrengthened institutions.

2. The Prerequisites for Effective NationalEnvironmental Law

a) Adequate Regulation and Institutional Regimes

19. In many countries the functions of environmental legislation include the following:

• Reflection of the particular policies andschemes considered by the Legislature to bemost appropriate for achieving the desiredgoals;

• Establishment of the institutional machinery forgiving effect to those principles and schemes;

• Empowering of the related institutions andpartners to function efficiently within theframework of policy parameters;

• Establishment of legislative techniques andregulatory approaches, such as command andcontrol regimes, economic incentives and landuse planning and zoning; and

• Provision of adequate financial and humanresources.

20. Command and control regulation emphasisesdeterrence and punishment. To illustrate this pointwhen a government regulation establishes specificenvironment standards (the “command”) and

17

THE ROLE OF NATIONAL ENVIRONMENTAL LAWChapter 2 THE ROLE OF NATIONAL ENVIRONMENTAL LAWChapter 2

when it establishes a detailed inspection andenforcement scheme (the “control”). To beeffective the sanctions of the command andcontrol regulation have to “deter” other violationsto effectively protect the environment.

21. Governments also use economic instruments tocontrol environmental behaviour. The mainincentive or disincentives used for environmentalmanagement and regulation include pollutioncharges (including emission charges, user charges,product charges, administrative charges, and taxdifferentiation); user charges (fees for direct cost ofcollective or public treatment of pollution, payingfor units discharged in surface water); productcharges, administrative charges (paid to authoritiesfor such fees as chemical use, or miningregistration to finance the licensing and controlactivities), tax measures (charges used toencourage or discourage the use of environmentalfriendly products), market creation, tradablepermits, environmental liability insurance;subsidies (tax incentives), environmental impactassessment fees, deposit refund systems andenforcement incentives.

22. Land use planning and zoning is anotherlegislative approach to ensure that industries,airports, and other facilities in cities are locatedaway from residential areas to avoid noise and airpollution and for waste management disposal. Forexample effective environmental managementmay require that forest reserves be located far fromgrowing human settlements.

23. Strengthening institutional regimes for environ-mental management is equally important in termsof building capacity of human resources to be wellinformed when managing different aspects of theenvironment. It is also important to ensure thatthere is adequate coordination of different sectorsor government ministries handling environmentalissues in the planning and management of variousenvironmental resources and national legislationcan streamline this coordination, by a link withother players, e.g. NGOs and Civil Society.

b) The Role of Case Law

24. In addition to national legislation, countries with a“common law” tradition may rely on case law toprotect the environment. In general, “commonlaw” represents a body of law developed throughjudicial decisions, as distinguished from legislativeenactments. A fundamental tenet of the commonlaw is the doctrine of stare decisis. This doctrinestates that when a point of law has been settled byCourt Decisions, it establishes a precedent that isfollowed in later cases unless and until the

precedent is overturned in a subsequent case forvery specific reasons. These reasons can vary, forexample, for the interruption of a precedent isrequired to vindicate plain, obvious principles oflaw or to remedy continued injustice.

25. In countries that follow “civil law” traditions, theheart of the legal system is a set of codes. In civillaw countries, the basis for a court’s decision mustbe found in the country’s codes. Nevertheless,many civil law jurisdictions examine decisions ofleading judges as a source of valuable experiencein formulating and applying norms. It is to be notedthat fusion in environmental laws and regulationsand directives blurs the differences between thetwo systems. E.g. in EU Directions, or in thelegislation to implement international treaties andprinciples as recent examples of framework lawsdemonstrate.

c) Implementation, Enforcement and Compliance ofNational Laws

26. Implementation and enforcement is important forthe effectiveness of national environmentallegislation. Where national environmentallegislation calls for further regulation it is importantfor the Government to enact the requiredregulations and to ensure enforcementmechanisms are in place. It is also expected thatthe Government would put in place the rightstructure, systems and tools, skills, incentives,strategies, coordination and partnerships for allstakeholders, and assign roles and responsibility tocompetent staff members to enforce laws andstrengthen the legal and institutional frameworkfor environmental management. It is equallyimportant for the Government to promote and tomonitor compliance, and to evaluate theeffectiveness of national legislation to ensure thatenforcement requirements are in place, laws areenforceable, and they do deter violations.

27. All stakeholders who have a role to play in theimplementation and enforcement of nationalenvironmental laws need to understand clearlyboth the legal and technical issues associated withenvironmental programmes if they have toimplement and enforce national environmentallaw. Chapter 8, para. 14 of Agenda 21 providesthat “... it is equally critical to develop workableprogrammes to review and enforce compliancewith the laws, regulations and standards that areadopted. Technical support may be needed formany countries to accomplish these goals.Technical cooperation requirements in this fieldinclude legal information, advisory services,specialized training and institutional capacity-building.”

18


General Objective of the Legislation

Scope or Relevant areas ofRegulation (examples)

Selection of EnvironmentalManagement Approaches

Types of National Actions and Laws

Ensuring Compliance andEnforcement of Laws

Pollution prevention and control (reduce risk, improve maintain and restoreenvironmental quality, prevent and control pollution, sustain environmental uses,clean up past pollution).Protection, conservation and sustainable use of resources.Integration of environment and development processes into the planning process.

• Air pollution (source: fuel, industry, ozone depleting substances, forest firecausing haze)

• Noise ppllution (noise in residential areas causing nuisance and town planningfor example near airports, industrial premises/occupational health regulatingacceptable noise levels)

• Freshwater pollution (pollution from sewage and or industrial effluent,standards of treating waste, pollution of rivers, lakes, dams and undergroundwaters and other sources of drinking water)

• Protection of the coastal and marine environment from pollution (from sewagedisposal, from built structures around the coast including industrial effluent,from ships, and from dumping of wastes), protection from coastal erosion,destruction of habitats and breeding grounds.

• Land degradation and soil pollution (caused by bad agricultural practices,unplanned towns and settlements, pollution from different sources, industry,dump sites, mining, etc.)

• Sustainable use of environmental resources (manage and control use at astandard which can protect, conserve and sustain the resources). This can applyto energy use, water utilization, protection of species, including fish resourcesand other biological resources.

• Framework environmental laws provide general principles of environmentalregulation including providing for cross cutting issues and mechanisms.

Command and control, the use of Economic and Market Based Instruments, RiskBased Instruments, Pollution Prevention (Regulatory, Voluntary, Liability). StandardSetting (ambient, technology, performance, economic and voluntary standards),permits/authorization, inspection and monitoring compliance, use of economicinstruments such as the Polluter Pay Principle to internalize the cost, use of marketbased mechanisms to discourage or encourage behaviour with its incentives ordisincentives, self regulation, Clean Development Mechanisms (“CDM”), land useplanning and zoning, international cooperation, Environmental Impact Assessment(“EIA”), integrated resource management, training, education and public awareness,etc.Legislation, regulations, permits and licences, court cases/precedents, takingadministrative action, setting up compliance programmes.

Promoting and monitoring compliance, and reviewing and evaluating theeffectiveness of national legislation to ensure adequate enforcement mechanisms arein place, institutions have capacity, laws are deterrent and are enforceable.

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THE ROLE OF NATIONAL ENVIRONMENTAL LAWChapter 2

28. Agenda 21 recognizes the need for enhancingcapacity building for implementation andenforcement of national environmental law. Theactivities envisaged include raising awareness ofall stakeholders associated with this process andequipping them for their work. The raising ofawareness of various stakeholders may include

prosecutors, legal practitioners, members of theJudiciary, government officials at all levels, localauthorities including municipalities, complianceofficers in environmental agencies handling airquality issues, water quality regulators, wasteregulators in local authorities, national parkenforcement officers, customs officers, etc.

Chapter 2

3. Template for Elements of Comprehensive National Legal Regimes for Environmentally

Managing of Different Sectors

4. Implementation of International EnvironmentalLaw at the National Level

29. Agenda 21 underlines the importance ofimplementing international treaties through theenactment and enforcement of laws andregulations at the regional, national,state/provincial or local/municipal level becausethese laws and regulations are essential for theimplementation of most international agreementsin the field of environment and development, infact, treaties often include obligations to report onlegislative measures.

30. A survey of existing agreements has indicated thatmany countries have failed to enact appropriatenational legislation; that states must improvenational implementation if the international goalsare to be achieved; and that technical assistancemay be needed to assist some countries with thenecessary implementing national legislation. Indeveloping their national priorities, countriesshould take account of their internationalobligations. The adoption of a MEA is just thebeginning of the process of implementation, fullimplementation of MEA’s provisions is vital toensure the effectiveness and full value of the MEA.Each party may be required to adopt policies, todevelop and/or strengthen national legislation andinstitutions, and/or to take up administrative actionsuch as preparation of action plans, designatingsites, or appointing focal points as part of measuresprovided to implement MEAs. Depending on theMEA, other actions aimed at facilitating theprocess of implementation at the national levelmay include planning, capacity building, financialassistance, and technology transfer.

31. Application at the national level by domesticatingMEAs may be through a “monist” or “dualist”approach. These approaches are meant toseparate those countries that implement treatyobligations automatically upon ratification, fromthose that sought to conform these treaties to theirdomestic law/process first, before implementation.The first category of countries would be pursuingthe monist tradition and the latter the dualisttradition. It is, however, clear from authoritativesources that the practice of states did not showsuch sharply contrasted notions. Even in countriesassociated with the monistic tradition, theratification of a treaty is often followed bydeliberate national law-making processes to setthe stage for the implementation of the treaty. Onthe other hand in countries associated with the

dualistic tradition, in some cases, obligationsemanating from international law have sometimesbeen applied as a matter of course under thejudicial process.

32. It thus makes more practical sense to see treatylaw, for purposes of implementation, as either self-executing or non-self-executing. Self-executingtreaties require no special measures in domesticlegislation for implementation, as they readily fitinto the operative scheme of the national legalprocess. But non-self-executing treaties requiredeliberate legislative or other related decisions atthe national level, as a basis for carrying out therequired implementation.

33. Formal legislative adoption of treaty law may beregarded as the technical aspect of the broaderprocess of domestication. The notion ofdomestication of treaty law essentially addressesthe acceptance of such law and its principleswithin the policy, legal and administrativestructure of a particular jurisdiction. It should benoted that in most chapters of this manual thesection titled National Implementation providesexamples of national effort to domesticate onemultilateral treaty. These sections reinforce andstrengthen this chapter. When the discreteelements of the treaty are implanted into thenational governance apparatus and the routinemotions of regular administration, they are thenassured of application, in the same manner as theordinary law of the land. The treaty law, in thisrespect, undergoes a process of transformation,and is assimilated into the domestic law. In thisway, it is possible to achieve the most effectivescheme of implementation for treaty law.

5. UNEP’s Capacity Building Programme onEnvironmental Law

34. UNEP provides assistance to governments totranslate sustainable development policies intoaction by developing and strengthening capacityto develop, strengthen and implementenvironmental laws. The capacity-buildingprogramme of UNEP on environmental lawfocuses on building capacity of legal stakeholdersto develop, apply, strengthen and implementenvironmental law. The targeted groups aremainly decision-makers in the government, legalprofessionals such as members of the Judiciary,state attorneys and other prosecutors, andacademicians (to enhance the teaching ofenvironmental law in higher learning institutions).

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THE ROLE OF NATIONAL ENVIRONMENTAL LAWChapter 2

Interventions include training programmes,advisory services and technical assistance inenvironmental law, and enhancing access toenvironmental law information. UNEP alsoprovides its expertise and support in negotiationprocesses of international environmentalinstruments, as well as in other internationalprocesses.

35. UNEP has been receiving requests fromdeveloping countries and countries witheconomies in transition to assist them indeveloping and/or strengthening theirenvironmental legislation and institutionalregimes. The response to these requests havebeen through technical assistance programmes todeveloping countries in the field of environmentallaw and institutions which stems from the UnitedNations General Assembly Resolution 3436 (XXX)of 1975. This resolution required the UNEPExecutive Director to take measures designed toprovide technical assistance to developingcountries for development of their nationallegislation. This mandate was subsequentlyreinforced by UNEP Governing Council decisionsrequesting UNEP to assist governments in thedeveloping countries to strengthen the legal andinstitutional framework for environmentalmanagement, the UNCED Agenda 21, and theWSSD Plan of Implementation. These instrumentsrecognize that the short-comings in existingenvironmental legislation and institutions affectthe effective integration of environment anddevelopment policies and practices, particularlyin the developing countries. Consequently, UNEPemphasizes the need for strengthening nationallegislative and institutional regimes for translatingsustainable development policies and strategiesinto action, including effective implementation ofinternational environmental legal instruments,particularly in developing countries and countrieswith economies in transition. An importantdecision adopted in the 7th Governing CouncilSpecial Session in Cartagena, Colombia, inFebruary 2002 operationalizes UNEP at countrylevel and hence can comfortably assist countrieson request alone jointly with others.

36. UNEP’s capacity building activities in the field ofnational environmental legislation and institutionsare participatory in nature. The UNEP staffmembers work with government officials andlocal experts all through the programme todevelop and/or strengthen national legislation.UNEP’s work is guided by the Programme for the

Development and Periodic Review ofEnvironmental Law for the First Decade of the21st Century (“Montevideo Programme III”),which is a ten-year environmental lawprogramme that was adopted by the UNEPGoverning Council under decision 21/23. TheMontevideo Programme III is the third in a seriesof law programmes that UNEP is implementingsince 1982 when Montevideo I was adopted. Indecision 17/25, Montevideo II was adopted.Paragraph 2 of the programme addressescapacity-building and provides, as its objective,for strengthening the regulatory and institutionalcapacity of developing countries, in particular theLeast Developed Countries, Small IslandDeveloping States and countries with economiesin transition, to develop and implementenvironmental law. The strategy is to provideappropriate technical assistance, education andtraining based on assessment of needs.

37. Under the framework of the MontevideoProgramme, through its biennial programme ofwork, UNEP continues to assist governments tostrengthen the legal and institutional frameworkfor environmental management upon request.UNEP also prepares guide materials andpublications to enhance access to environmentalinformation. Global, Regional and NationalTraining programmes are conducted to buildcapacity of decision-makers and other legalstakeholders to apply, interpret, enforce,strengthen, implement and to developenvironmental law.

38. In addition to UNEP, various bodies of the UnitedNations are involved in specific environmentalmanagement such as the International AtomicEnergy Agency (“IAEA”), the United NationsDevelopment Programme (“UNDP”), the UnitedNations, Economic Commissions; the specializedagencies that include, World Health Organization(“WHO”), the World Meteorological Organization(“WMO”), the International Civil AviationOrganization (“ICAO”), the Food and AgricultureOrganization (“FAO”), the United NationsEducation, Science and Culture Organization(“UNESCO”) and the International MaritimeOrganization (“IMO”); the World Bank andRegional Banks and other internationalorganizations including the Organization forEconomic Cooperation and Development(“OECD”), the North Atlantic Treaty Organization(“NATO”), the European Union (“EU”), theCouncil of Europe; the Organization of African

Chapter 2

Resources

Internet Materials

AGENDA 21 AND THE WSSD PLAN OF IMPLEMENTATION available at http://www.un.org,http://www.un.org/esa/sustdev/documents/agenda21/index.htm, http://www.johannesburgsummit.org/ andhttp://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/POIToc.htm

GATEWAY SITE FOR ENVIRONMENTAL LAW INCLUDING TREATIES, NATIONAL LEGISLATION, COURT DECISIONS AND ENVIRONMENTAL

LITERATURE available at http://www.ecolex.org/ecolex/index.php

UNITED NATIONS ENVIRONMENT PROGRAMME, DIVISION OF POLICY DEVELOPMENT AND LAW (“UNEP/DPDL”) available athttp://www.unep.org/DPDL/law/

Text Materials

Donald K. Anton, Jennifer Kohout & Nicola Pain, NATIONALIZING ENVIRONMENTAL PROTECTION IN AUSTRALIA: THE

INTERNATIONAL DIMENSIONS, (23 Envtl. L. 763, 1993).

Durwood Zaelke, Donald Kaniaru & Eva Kruzikova, MAKING LAW WORK, ENVIRONMENTAL COMPLIANCE AND

SUSTAINABLE DEVELOPMENT, (Cameroon, May, 2005).

J.H. Jans, EUROPEAN ENVIRONMENTAL LAW, (Kluwer Law International, 1995).

Jennifer M. Gleason & Bern A. Johnson, ENVIRONMENTAL LAW ACROSS BORDERS, (10 J. Envtl. L. & Litig. 67).

John Norton Moore, THE NATIONAL LAW OF TREATY IMPLEMENTATION, (Carolina Academic Press, 2001).

Jonathan B. Wiener, RESPONDING TO THE GLOBAL WARMING PROBLEM: SOMETHING BORROWED FOR SOMETHING BLUE:LEGAL TRANSPLANTS AND THE EVOLUTION OF GLOBAL ENVIRONMENTAL LAW, (27 Ecology L.Q. 1295, 2001).

Leah Sandbank, DIRTY LAUNDRY: WHY INTERNATIONAL MEASURES TO SAVE THE GLOBAL CLEAN WATER SUPPLY HAVE FAILED,(13 Fordham Envtl. L.J. 165, 2001).

Matthew R. Auer, GEOGRAPHY, DOMESTIC POLITICS AND ENVIRONMENTAL DIPLOMACY: A CASE FROM THE BALTIC SEA REGION,(11 Geo. Int’l Envtl. L. Rev. 77 -100, 1998).

Peter H. Sand, TRANSNATIONAL ENVIRONMENTAL LAW: LESSONS IN GLOBAL CHANGE, (Kluwer Law International, 1999).

Rudiger Wolfrum & Fred L. Morrison, INTERNATIONAL, REGIONAL AND NATIONAL ENVIRONMENTAL LAW, (Kluwer LawInternational, 2000).

Unity, now African Union (”AU”), and such otherinternational NGOs as the World ConservationUnion/IUCN. These organizations have played arole in development of internationalenvironmental law as well as undertakingactivities that can facilitate implementation ofnational environmental law. These organizationshave been active in issues such as atmospheric

pollution, marine environment, water pollution,land use and conservation of natural resources,urban environmental problems.

Sylvia Bankobeza, Legal Officer, Division ofPolicy Development and Law, UNEP

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THE ROLE OF NATIONAL ENVIRONMENTAL LAW Chapter 2

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PRINCIPLES AND CONCEPTS OF INTERNATIONAL ENVIRONMENTAL LAWChapter 3

3. PRINCIPLES AND CONCEPTS OFINTERNATIONAL ENVIRONMENTAL LAW

I. Introduction

1. This chapter provides an overview of the mainprinciples (i.e. fundamental doctrines on whichothers are based, or rules of conduct) and concepts(i.e. central unifying ideas or themes) ininternational environmental law. It identifiesimportant emerging principles and concepts,describes the roles they play, and providesexamples to illustrate some of the ways in whichthey have been applied. In doing so, it provides abackdrop for the rest of this UNEP Training Manualand assists the user in better understanding whyspecific approaches to protecting the environmenthave come about and how they work.Understanding the basic principles and conceptswill facilitate a sound appreciation of many of thetreaties reviewed in this Manual, and in thedevelopment and consolidation of internationalenvironmental law. Comprehension of modernand evolving international environmental law andits different facts, needs not only knowledge oftreaty law, but also the translation of principles andconcepts into legally binding rules andinstruments.

II. Overview of International Environmental Law Principles and Concepts

2. Principles and concepts embody a commonground in international environmental law; andthey both reflect the past growth of internationalenvironmental law and affect its future evolution.Principles and concepts play important roles ininternational environmental law, which itself is oneof the most rapidly evolving areas of publicinternational law. They can indicate the essentialcharacteristics of international environmental lawand its institutions, provide guidance in interpretinglegal norms, constitute fundamental norms, and fillin gaps in positive law. Principles and conceptsalso appear in national constitutions and laws; andthey are referred to in, and influence, internationaland national jurisprudence. Today, almost allmajor binding and non-legally bindinginternational environmental instruments contain orrefer to principles or concepts and are engines inthe evolving environmental law.

3. The development of environmental law during thepast three decades has led to the emergence of anincreasing number of concepts, principles andnorms (i.e. binding rules of international law). Thereason why principles and concepts play suchimportant role is linked to the origin anddevelopment of international environmental law.Environmental law has developed mainly in apiecemeal fashion, not in a structured orderly way,as ad hoc responses to environmental threats andchallenges. Indeed, in the case of UNEP, this wasthe way till 1982 when the first ten year programmeof environmental law, often referred to asMontevideo Programme I, was agreed. Thereafterthis has been prepared and approved by theGoverning Council for each subsequent ten years:Montevideo Programme II in 1993 and MontevideoProgramme III in 2001. There are manyinternational arenas and many internationalinstruments dealing with specific environmentalproblems. Not surprisingly, therefore, principlesand concepts have been repeated or referred to inmany different treaties or non-binding instruments.The frequent inclusion of these principles andconcepts in international legal instrumentsreinforces them and, together with state practice,will continue to contribute to the creation of aglobal framework for international environmentallaw.

4. Of particular importance are the principlesestablished at two important United Nationsconferences, the 1972 Conference on the HumanEnvironment (“Stockholm Conference”) and the1992 United Nations Conference on Environmentand Development (“UNCED”) in Rio de Janeiro.Both of these conferences produced declarations ofprinciples (the “1972 Stockholm Declaration” andthe “1992 Rio Declaration”, respectively), whichwere adopted by the United Nations GeneralAssembly. Together with the hundreds ofinternational agreements that exist relating toprotecting the environment (including humanhealth), the principles in the 1972 StockholmDeclaration and 1992 Rio Declaration are widely-regarded as the underpinnings of internationalenvironmental law.

5. The Rio Declaration contains a preamble andtwenty-seven international environmental lawprinciples that guide the international communityin its efforts to achieve sustainable development.Since the adoption of the Rio Declaration, majordevelopments in international environmental lawhave taken place that affect the definition, statusand impact of principles and concepts ininternational environmental law. These

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PRINCIPLES AND CONCEPTS OF INTERNATIONAL ENVIRONMENTAL LAW Chapter 3

developments include the negotiation and entryinto force of several major multilateral agreements.(See chapters 1, 4, 7, 9, 10, 11, 12, 13, 14, 15 and19 of this Manual).

6. A general characteristic of present internationalenvironmental law is the utilization of non-bindinginternational instruments. Such texts are ofteneasier to negotiate and amend in the light of newproblems where scientific knowledge and publicawareness can be the major factors pressing forinternational action. Principles in non-binding textscan help develop international environmental lawand directly or indirectly give birth to new legalrules in conventions and/or customary law.

7. The legal status of international environmental lawprinciples and concepts is varied and may besubject to disagreement among states. Someprinciples are firmly established in internationallaw, while others are emerging and only in theprocess of gaining acceptance, representing morerecent concepts. Some principles are more in thenature of guidelines or policy directives which donot necessarily give rise to specific legal rights andobligations. Principles have acquired recognition,among other means, through state practice, theirincorporation in international legal instruments,their incorporation in national laws and regulations,and through judgements of courts of law andtribunals. Some principles are embodied orspecifically expressed in global or regionallybinding instruments, while others arepredominantly based in customary law. In manycases it is difficult to establish the preciseparameters or legal status of a particular principle.The manner in which each principle applies to aparticular activity or incident typically must beconsidered in relation to the facts andcircumstances of each case, taking into account ofvarious factors including its sources and textualcontext, its language, the particular activity at issue,and the particular circumstances in which it occurs,including the actors and the geographical region,since the juridical effect of principles and conceptsmay change from one legal system to another.

8. For the reasons outlined in the precedingparagraph, this chapter does not address thequestion of whether a particular principle is, in fact,binding international law. In order to avoidconfusion in this respect, part III, below, refers toprinciples and concepts jointly as “concepts”unless referring to a particular text, e.g. one of theRio “Principles”.

9. Some scholars believe the development of asingle comprehensive treaty of fundamentalenvironmental norms may be a future solution tocounteract fragmentation and provide clarity aboutthe legal status of various principles. Such anoverarching agreement may provide the legalframework to support the further integration ofvarious aspects of sustainable development,reinforcing the consensus on basic legal norms bothnationally and internationally. It could thus createa single set of fundamental principles and conceptsto guide states, international organizations, NGOsand individuals. It could consolidate and codifymany widely accepted, but scattered, principlesand concepts contained in non-binding texts onenvironment and sustainable development and fillin gaps in existing law. It could also facilitateinstitutional and other linkages among existingtreaties and their implementation, and be taken intoaccount in judicial and arbitral decisions,negotiations of new international legal instruments,and national law-making.

10. Finally, it is important to recognize thatinternational environmental law is an inseparablepart of public international law. Public internationallaw principles such as the duty to negotiate in goodfaith, the principle of good neighbourliness andnotification, and the duty to settle disputespeacefully, thus may pertain to a situationregardless of its designation as “environmental” andmay affect the evolution of internationalenvironmental law principles more generally. Atthe same time, the development of internationalenvironmental law principles and concepts mayaffect the development of principles in other areasof international law. The application and, whererelevant, consolidation and further development ofthe principles and concepts of internationalenvironmental law listed in this chapter, as well asof other principles of international law, will beinstrumental in pursuing the objective ofsustainable development.

III. Emerging Principles and Concepts

11. The principles and concepts discussed in thischapter are:

1. Sustainable Development, Integration andInterdependence

2. Inter-Generational and Intra-Generational Equity3. Responsibility for Transboundary Harm4. Transparency, Public Participation and Access to

Information and Remedies5. Cooperation, and Common but Differentiated

Responsibilities6. Precaution

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7. Prevention8. “Polluter Pays Principle”9. Access and Benefit Sharing regarding Natural

Resources10. Common Heritage and Common Concern of

Humankind11. Good Governance

1. Sustainable Development, Integration andInterdependence

12. The international community recognizedsustainable development as the overarchingparadigm for improving quality of life in 1992, atUNCED. Although sustainable development issusceptible to somewhat different definitions, themost commonly accepted and cited definition isthat of the Brundtland Commission onEnvironment and Development, which stated in its1987 Report, Our Common Future, thatsustainable development is “development thatmeets the needs of the present withoutcompromising the ability of future generations tomeet their own needs.” The parameters ofsustainable development are clarified in Agenda 21and the Rio Declaration, both adopted at UNCED,and in subsequent international regional andnational instruments.

13. Principle 4 of the Rio Declaration provides: “Inorder to achieve sustainable development,environmental protection shall constitute anintegral part of the development process andcannot be considered in isolation from it.”Principle 25 states that “Peace, development andenvironmental protection are interdependent andindivisible.” Principles 4 and 25 make clear thatpolicies and activities in various spheres, includingenvironmental protection, must be integrated inorder to achieve sustainable development. Theyalso make clear that the efforts to improve society,including those to protect the environment,achieve peace, and accomplish economicdevelopment, are interdependent. Principles 4 and25 thus embody the concepts of integration andinterdependence.

14. The concepts of integration and interdependenceare stated even more clearly in paragraph 6 of the1995 Copenhagen Declaration on SocialDevelopment, which introduction states that“economic development, social development andenvironmental protection are interdependent andmutually reinforcing components of sustainabledevelopment, which is the framework for ourefforts to achieve a higher quality of life for allpeople…”. Paragraph 5 of the 2002 JohannesburgDeclaration on Sustainable Development confirms

this, by stating that “we assume a collectiveresponsibility to advance and strengthen theinterdependent and mutually reinforcing pillars ofsustainable development (economic development,social development and environmental protection)at the local, national, regional and global levels.”Integration was one of the main themes discussedat the 2002 Johannesburg World Summit onSustainable Development, with particularemphasis on eradicating poverty. One of thecommitments of Millennium Development Goalnumber 7 (“Ensure environmental sustainability”),is to “Integrate the principles of sustainabledevelopment into country policies andprogrammes…” Paragraph 30 of the MillenniumDeclaration speaks of the need for greater policycoherence and increased cooperation amongmultilateral institutions, such as the UnitedNations, the World Bank, and the World TradeOrganization. The definition of “sustainabledevelopment” from the Brundtland Commission’sreport, quoted above, indicates theinterdependence of generations, as well. On thebasis of these and other international instruments, itis clear that integration and interdependence arefundamental to sustainable development.

15. The concepts of integration and interdependencein international environmental law are whollyconsistent with the nature of the biosphere, i.e. theconcentric layers of air, water and land on whichlife on earth depends. Scientists increasinglyunderstand the fundamental interdependence ofthe various elements of the biosphere, howchanges in one aspect can affect others, and theessential roles that nature plays with respect tohuman activities and existence (e.g., purifyingwater, pollinating plants, providing food, providingrecreation opportunities, and controlling erosionand floods). In this respect, internationalenvironmental law mirrors the most fundamentalinfrastructure of human society (i.e., theenvironment).

16. The concept of integration demonstrates acommitment to moving environmentalconsiderations and objectives to the core ofinternational relations. For example,environmental considerations are increasingly afeature of international economic policy and law:the Preamble to the 1994 World TradeOrganization Agreement mentions bothsustainable development and environmentalprotection, and there are numerous regional andglobal treaties supporting an approach thatintegrates environment and economicdevelopment, such as the 1992 Convention on

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Biological Diversity (“CBD”), the 1994 UnitedNations Convention to combat Desertification inCountries Experiencing Serious Drought and/orDesertification, particularly in Africa and the 1997Kyoto Protocol on Climate Change.

17. At the national level, the concept of integration ofenvironmental concerns with all other policy areasis usually formulated as a procedural rule to beapplied by legislative and administrative bodies. Itis also a fundamental postulate of most of thenational strategies for sustainable development.The future may well witness increased attention to“sustainable development law”, in which thespecific laws regarding all spheres of activityappropriately integrate environmental, economicand social considerations.

18. Environmental Impact Assessment (“EIA”) hasbecome one of the most effective and practicaltools to support the implementation of sustainabledevelopment and its integrative aspects. The greatmajority of countries in the world have adoptedinformal guidelines or mandatory regulations,applicable not only to public projects but often alsoas a direct obligation of citizens. In addition, inmany countries informal procedures of impactassessment for governmental activities have beendeveloped. EIA is also widely accepted as amechanism for public participation in planningprocesses and decision-making and a tool toprovide information and data to the publicregarding projects and other activities.

19. Also necessary are approaches that take intoaccount long-term strategies and that include theuse of environmental and social impactassessment, risk analysis, cost-benefit analysis andnatural resources accounting. Some have proposedso-called sustainable development impactassessments, which take into accountenvironmental social and economic aspects. Theintegration of environmental, social and economicpolicies also requires transparency and broadpublic participation in governmental decision-making, as discussed in part c below.

2. Inter-Generational and Intra-Generational Equity

20. Equity is central to the attainment of sustainabledevelopment. This is evident from manyinternational instruments. For example, the 1992United Nations Framework Convention onClimate Change (“UNFCC”) refers in article 3.(1) tointergenerational equity, as do the last preambularparagraph of the 1992 CBD, the 1992 UnitedNations Economic Commission for EuropeConvention on the Protection and Use of

Transboundary Watercourses and InternationalLakes, the 1994 Desertification Convention andthe 2001 Stockholm Convention on PersistentOrganic Pollutants (“POPs”), among others. Asnoted above, the Brundtland Commission’s Reportdefined sustainable development as “developmentthat meets the needs of the present withoutcompromising the ability of future generations tomeet their own needs”; and it goes on to identifytwo “key concepts” of sustainable development.The first of which is “the concept of ‘needs,’ inparticular the essential needs of the world’s poor, towhich overriding priority should be given.”Similarly, Principle 3 of the 1992 Rio Declarationstates that “The right to development must befulfilled so as to equitably meet developmental andenvironmental needs of present and futuregenerations”; and Rio Principle 5 provides that “AllStates and all people shall cooperate in theessential task of eradicating poverty as anindispensable requirement for sustainabledevelopment, in order to decrease the disparities instandards of living and better meet the needs of themajority of the people of the world.” Paragraph 6of the Copenhagen Declaration, the first sentenceof which is reproduced above, refers in subsequentsentences to “Equitable social development” and“social justice”. The concept of equity is alsoembodied in the United Nations Millennium Goals(e.g. the Eradication of Poverty) and MillenniumDeclaration (e.g. paragraphs 6, 11 and 21).

21. Equity thus includes both “inter-generationalequity” (i.e. the right of future generations to enjoya fair level of the common patrimony) and “intra-generational equity” (i.e. the right of all peoplewithin the current generation to fair access to thecurrent generation’s entitlement to the Earth’snatural resources).

22. The present generation has a right to use and enjoythe resources of the Earth but is under an obligationto take into account the long-term impact of itsactivities and to sustain the resource base and theglobal environment for the benefit of futuregenerations of humankind. In this context,“benefit” is given its broadest meaning asincluding, inter alia, economic, environmental,social, and intrinsic gain.

23. Some national courts have referred to the right offuture generations in cases before them. Forexample, the Supreme Court of the Republic of thePhilippines decided, in the Minors Oposa case(Philippines - Oposa et. al. v. Fulgencio S. Factoran,Jr. et al. G.R. No. 101083), that the petitionerscould file a class suit, for others of their generationand for the succeeding generations. The Court,

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considering the concept of inter-generationalresponsibility, further stated that every generationhas a responsibility to the next to preserve thatrhythm and harmony necessary for the fullenjoyment of a balanced and healthful ecology.

3. Responsibility for Transboundary Harm

24. Principle 21 of the Stockholm Declarationrecognizes the sovereign right of each state upon itsnatural resources, emphasizing that it is limited bythe responsibility for tranboundary harm.

1972 Stockholm DeclarationPrinciple 21

“States have, in accordance with the Charter of theUnited Nations and the principles of internationallaw, the sovereign right to exploit their ownresources pursuant to their own environmentalpolicies, and the responsibility to ensure thatactivities within their jurisdiction or control do notcause damage to the environment of other States orof areas beyond the limits of national jurisdiction.”

Twenty years later, Principle 21 was reiterated inPrinciple 2 of the Rio Declaration, with the solechange of adding the adjective “developmental”between the words “environmental” and“policies”:

1992 Rio Declaration Principle 2

“States have, in accordance with the Charter ofthe United Nations and the principles ofinternational law, the sovereign right to exploittheir own resources pursuant to their ownenvironmental and developmental policies, andthe responsibility to ensure that activities withintheir jurisdiction or control do not cause damageto the environment of other States or of areasbeyond the limits of national jurisdiction.”

25. Stockholm Principle 21/ Rio Principle 2, althoughpart of non-binding texts, are nonetheless well-established, and are regarded by some as a rule ofcustomary international law. Either or both of themhave been reaffirmed in declarations adopted bythe United Nations, including the Charter ofEconomic Rights and Duties of States, the WorldCharter for Nature, and the Declaration of the2002 World Summit on Sustainable Development.Their contents are included in the United NationsConvention on the Law of the Sea (“UNCLOS”) aswell as in article 20 of the Association of South EastAsian Nations (“ASEAN”) Agreement on theConservation of Nature and Natural Resources.The 1979 Convention on Long- RangeTransboundary Air Pollution reproduces Principle

21, stating that it "expresses the commonconviction that States have" on this matter.Principle 21 also appears in article 3 of the 1992Convention on Biological Diversity, to whichvirtually all the states of the world are parties, and,as restated in the 1992 Rio Declaration, in thepreamble of the 1992 UNFCCC, the 1999 Protocolon Water and Health to the Convention on theProtection and Use of TransboundaryWatercourses and International Lakes, and the2001 Stockholm Convention on Persistent OrganicPollutants (“POPs”). Also, the International Court ofJustice (“ICJ”) recognized in an advisory opinionthat “The existence of the general obligation ofstates to ensure that activities within theirjurisdiction and control respect the environment ofother states or of areas beyond national control isnow part of the corpus of international law relatingto the environment.” (See Legality of the Threat orUse of Nuclear Weapons, Advisory Opinion, ICJReports, pp. 241-42, 1996).

26. Stockholm Principle 21/Rio Principle 2 contain twoelements which cannot be separated withoutfundamentally changing their sense and effect: (1)the sovereign right of states to exploit their ownnatural resources, and (2) the responsibility, orobligation, not to cause damage to the environmentof other states or areas beyond the limits of nationaljurisdiction. It is a well-established practice that,within the limits stipulated by international law,every state has the right to manage and utilizenatural resources within its jurisdiction and toformulate and pursue its own environmental anddevelopmental policies. However, one of the limitsimposed by international law on that right is thatstates have an obligation to protect theirenvironment and prevent damage to neighbouringenvironments.

27. Stockholm Principle 21/Rio Principle 2 affirm theduty of states ‘to ensure’ that activities within theirjurisdiction or control do not cause damage to theenvironment of other states. This means that statesare responsible not only for their own activities, butalso with respect to all public and private activitieswithin their jurisdiction or control that could harmthe environment of other states or areas outside thelimits of their jurisdiction. The responsibility fordamage to the environment exists not only withrespect to the environment of other states, but alsoof areas beyond the limits of national jurisdiction,such as the high seas and the airspace above them,the deep seabed, outer space, the Moon and othercelestial bodies, and Antarctica.

28. The exact scope and implications of StockholmPrinciple 21/Rio Principle 2 are not clearlydetermined. It seems clear that not all instances of

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transboundary damage resulting from activitieswithin a state's territory or control can be preventedor are unlawful, though compensation maynevertheless be called for; but the circumstances inwhich those outcomes arise are not entirely clear.

4. Transparency, Public Participation and Access toInformation and Remedies

29. Public participation and acces to information are recognized in Principle 10 of the Rio Declaration.


“Environmental issues are best handled with theparticipation of all concerned citizens, at therelevant level. At the national level, eachindividual shall have appropriate access toinformation concerning the environment that isheld by public authorities, including informationon hazardous materials and activities in theircommunities, and the opportunity to participatein decision-making processes. States shallfacilitate and encourage public awareness andparticipation by making information widelyavailable. Effective access to judicial andadministrative proceedings, including redressand remedy, shall be provided.”

30. Transparency and access to information areessential to public participation and sustainabledevelopment, for example, in order to allow thepublic to know what the decision makingprocesses are, what decisions are beingcontemplated, the alleged factual bases forproposed and accomplished governmentalactions, and other aspects of governmentalprocesses. Public participation is essential tosustainable development and good governance inthat it is a condition for responsive, transparent andaccountable governments. It is also a condition forthe active engagement of equally responsive,transparent and accountable Civil Societyorganizations, including industrial concerns, tradeunions, and Non Governmental Organizations(“NGOs”). Public participation in the context ofsustainable development requires effectiveprotection of the human right to hold and expressopinions and to seek, receive and impart ideas. Italso requires a right of access to appropriate,comprehensible and timely information held bygovernments and industrial concerns on economicand social policies regarding the sustainable use ofnatural resources and the protection of theenvironment, without imposing undue financialburdens upon the applicants and with adequateprotection of privacy and business confidentiality.

31. The empowerment of people in the context ofsustainable development also requires access to

effective judicial and administrative proceedings.For example, states should ensure that wheretransboundary harm has been or is likely to becaused, affected individuals and communities havenon-discriminatory access to effective judicial andadministrative processes.

32. Principle 10 combines public participation withpublic access to information and access toremedial procedures. According to chapter 23 ofAgenda 21, one of the fundamental prerequisitesfor the achievement of sustainable development isbroad public participation in decision-making.Agenda 21 (chapters 23-32, and 36) emphasisesthe importance of the participation of all MajorGroups, and special emphasis has been given inAgenda 21, the Rio Declaration, and in legallybinding international instruments to ensuring theparticipation in decision-making of those groupsthat are considered to be politically disadvantaged,such as indigenous peoples and women. Principle10 also supports a role for individuals in enforcingnational environmental laws and obligationsbefore national courts and tribunals.

33. The 1992 United Nations Framework Conventionon Climate Change, in article 4.(1)(i), obligesParties to promote public awareness andparticipation in the process, including that ofNGOs, though it does not create a public right ofaccess to information. The 1994 DesertificationConvention recognizes, in article 3(a)(c), the needto associate Civil Society with the action of theState. (See also article 12 of the 1995 UnitedNations Fish Stocks Agreement). The 1993 NorthAmerican Agreement on EnvironmentalCooperation requires parties to publish theirenvironmental laws, regulations, procedures andadministrative rulings (article 4), to ensure thatinterested persons have access to judicial, quasi-judicial or administrative proceedings to force thegovernment to enforce environmental law (article6), and to ensure that their judicial, quasi-judicialand administrative proceedings are fair, open andequitable (article 7). More commonly, internationallegal instruments addressing access to informationand public participation are confined to distinctcontexts, such as Environmental ImpactAssessment. For example, the 1992 CBD requiresappropriate public participation in EIA proceduresin article 14.(1)(a); article 13 addresses the need forpublic education and awareness.

34. These concepts mean that international institutions,such as international financial institutions, shouldalso implement open and transparent decision-making procedures that are fully available to publicparticipation. Examples of this include the WorldBank Inspection Panel, which provides groupsaffected by World Bank projects the opportunity to

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request an independent inspection into allegedviolations of Bank policies and procedures. Thepetitioning process included in articles 14 and 15of the 1993 North American Agreement onEnvironmental Cooperation also providessignificant new rights for citizens to participate inmonitoring domestic enforcement of environmentallaws. These concepts also imply that NGOs shouldbe provided at least observer status in internationalinstitutions and with respect to treaties, and shouldbe appropriately relied upon for expertise,information and other purposes.

35. In many countries, public participation rights aregranted through Environmental Impact Assessmentprocedures with broad public participation or invarious sectoral laws adapted to the specialcircumstances of each sector. Consultation with,and dissemination of information to the public areimportant objectives of EIAs. For example, article16(3) of the 1986 Convention for the Protection ofthe Natural Resources and Environment of theSouth Pacific Region requires that the informationgathered in the assessment be shared with thepublic and affected parties. In Africa, theMemorandum of Understanding (“MOU”) ofOctober 22, 1998, between Kenya, Tanzania andUganda contains the agreement of the three statesto develop technical guides and regulations onEIA procedures, including enabling publicparticipation at all stages of the process and toenact corresponding legislation (article 14). Thisprovision was subsequently embodied in the Treatyfor East African Community by the three statesKenya, Tanzania and Uganda. As noted above, the1992 CBD also requires appropriate publicparticipation in environmental assessment in article14(1)(a); and it includes a notification andconsultation requirement in article 14(1)(c).

5. Cooperation, and Common but DifferentiatedResponsibilities

36. Principle 7 of the Rio Declaration provides:

“States shall cooperate in a spirit of global partnershipto conserve, protect and restore the health andintegrity of the Earth’s ecosystem. In view of thedifferent contributions to global environmentaldegradation, States have common but differentiated responsibilities. The developed countriesacknowledge the responsibility that they bear in theinternational pursuit of sustainable development inview of the pressures their societies place on theglobal environment and of the technologies andfinancial resources they command.”

37. Principle 7 can be divided into two parts: (1) theduty to cooperate in a spirit of global partnership;and (2) common but differentiated responsibilities.

38. The duty to cooperate is well-established ininternational law, as exemplified in articles 55 and56 of chapter IX of the Charter of the UnitedNations, to which all UN member states, at present191, subscribe, and applies on the global, regionaland bilateral levels. The goal of the Rio Declarationis, according to the fourth paragraph of itspreamble, the establishment of a “...new andequitable global partnership...” The concept ofglobal partnership can be seen as a more recentreformulation of the obligation to cooperate, and isbecoming increasingly important. Principle 7 refersto states, but the concept of global partnership mayalso be extended to non-state entities. Internationalorganisations, business entities (including inparticular transnational business entities), NGOsand Civil Society more generally should cooperatein and contribute to this global partnership.Polluters, regardless of their legal form, may alsohave also responsibilities pursuant to the“Polluter–Pays Principle”, described in paragraph62 and further.

39. Principle 7 also speaks of common butdifferentiated responsibilities. This element is a wayto take account of differing circumstances,particularly in each state's contribution to thecreation of environmental problems and in itsability to prevent, reduce and control them. Stateswhose societies have in the past imposed, orcurrently impose, a disproportionate pressure onthe global environment and which commandrelatively high levels of technological and financialresources bear a proportionally higher degree ofresponsibility in the international pursuit ofsustainable development.

40. In practical terms, the concept of common butdifferentiated responsibilities is translated into theexplicit recognition that different standards,delayed compliance timetables or less stringentcommitments may be appropriate for differentcountries, to encourage universal participation andequity. This may result in differential legal norms,such as in the 1987 Montreal Protocol onSubstances that deplete the Ozone Layer (Seechapter 9 of this Training Manual). In designingspecific differentiated regimes, the special needsand interests of developing countries and ofcountries with economies in transition, withparticular regard to least developed countries andthose affected adversely by environmental, socialand developmental considerations, should berecognized.


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41. According to the concept of common butdifferentiated responsibilities, developed countriesbear a special burden of responsibility in reducingand eliminating unsustainable patterns ofproduction and consumption and in contributing tocapacity-building in developing countries, inter aliaby providing financial assistance and access toenvironmentally sound technology. In particular,developed countries should play a leading role andassume primary responsibility in matters ofrelevance to sustainable development. A numberof international agreements recognize a duty on thepart of industrialized countries to contribute to theefforts of developing countries to pursuesustainable development and to assist developingcountries in protecting the global environment.Such assistance may entail, apart from consultationand negotiation, financial aid, transfer ofenvironmentally sound technology andcooperation through international organizations.

42. Article 4 of the 1992 Cimate Change Conventionrecognizes the special circumstances and needs ofdeveloping countries and then structures the dutiesand obligations to be undertaken by statesaccordingly. The idea of common butdifferentiated responsibilities and respectivecapabilities is stated in article 3 as the first principleto guide the parties in the implementation of theConvention. Article 12 allows for differences inreporting requirements. The provisions of theConvention on joint implementation (article4.(2)(a), (b)) and guidance provided on the issue byits Conference of the Parties are also of relevance.The 1992 Convention on Biological Diversitystates in article 20 (4) that implementation ofobligations undertaken by developing countrieswill depend on the commitments of developedcountries to provide new and additional financialresources and to provide access to and transfer oftechnology on fair and most favourable terms.Other parts of this Convention relate to the specialinterests and circumstances of developingcountries (e.g., paragraphs 13-17, 19 and 21 of thePreamble and articles 16-21).

43. The 1994 Desertification Convention containsspecific obligations for affected country parties(article 5) and recognizes additionalresponsibilities for developed country Parties(article 6). Article 26 of the 1996 Protocol to theConvention on the Prevention of Marine Pollutionby Dumping of Wastes and other Matter of 1972creates the opportunity for parties to adhere to anadjusted compliance time schedule for specificprovisions. The idea of common but differentiated

responsibilities can be seen as the main ideabehind the Fourth APC-EEC Convention of Lomeand is included in the fourth preambular paragraphof the 2001 Stockholm Convention on PersistentOrganic Pollutants.

6. Precaution

44. Precaution (also referred to as the “precautionaryprinciple,” the “precautionary approach,” and the“principle of the precautionary approach”) isessential to protecting the environment (includinghuman health) and is accordingly one of the mostcommonly encountered concepts of internationalenvironmental law. It is also one of the mostcontroversial, however, because of disagreementsover its precise meaning and legal status andbecause of concern that it may be misused fortrade-protectionist purposes.

45. Probably the most widely accepted articulation ofprecaution is Principle 15 of the Rio Declaration.

“In order to protect the environment, theprecautionary approach shall be widely applied byStates according to their capabilities. Where thereare threats of serious or irreversible damage, lack offull scientific certainty shall not be used as a reasonfor postponing cost-effective measures to preventenvironmental degradation.”

46. Principle 15 was one of the first global codificationsof the precautionary approach. Other formulationsalso adopted in 1992 at UNCED appear in theninth preambular paragraph of the 1992Convention on Biological Diversity and in article3(3) of the 1992 Climate Change Convention. The1992 CBD states: “..where there is a threat ofsignificant reduction or loss of biological diversity,lack of full scientific uncertainty should not be usedas a reason for postponing measures to avoid orminimize such a threat.” This language is lessrestrictive than Principle 15, because “significant”is a lower threshold than “serious or irreversible”and the language does not limit permissible actionto cost-effective measures. Article 3(3) of the 1992Climate Change Convention appears to take asomewhat more action-oriented approach thanPrinciple 15, stating: “The parties should takeprecautionary measures to anticipate, prevent orminimize the cause of climate change and mitigateits adverse effects...” The next sentence, however,repeats Principle 15 almost verbatim.


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47. Other formulations also exist. One of the mostforceful is that in article 4(3)(f) of the 1991 BamakoConvention on the Ban of the Import into Africaand the Control of their Transboundary Movementand Management of Hazardous Wastes withinAfrica, which requires parties to take action if thereis scientific uncertainty. Another example can befound in the 1996 Protocol to the LondonConvention, which states in article 3(1): "Inimplementing this Protocol, Contracting partiesshall apply a precautionary approach toenvironmental protection ... when there is reasonto believe that wastes or other matter introduced inthe marine environment are likely to cause harmeven when there is no conclusive evidence toprove a causal relation between inputs and theireffects". Its second preambular paragraph,emphasizes the achievements, within theframework of the London Convention, especiallythe evolution towards approaches based onprecaution and prevention.

48. The 2000 Cartagena Biosafety Protocol to the 1992CBD is based upon the precautionary approach. Itis contained in article 1 on the objective of theProtocol which refers explicitly to Rio Principle 15.Articles 10 and 11 contain the key provisionsregarding precaution. Article 10(6) provides that“lack of scientific certainty due to insufficientrelevant information and knowledge regarding theextent of the potential adverse effects of LivingModified Organisms (“LMO”) shall not prevent theParty from taking a decision, as appropriate withregard to the import of the LMO in question..., inorder to avoid or minimize such potential adverseeffects.” Article 11 uses similar language. Thus, acountry may reject an import even in the absenceof scientific certainty that it will potentially causeharm. These provisions are broader than RioPrinciple 15 because they do not refer to “seriousor irreversible damage” or cost-effectiveness.

49. The 1995 Agreement on Fish Stocks adopts theprecautionary approach in article 6; and its article5(c) states that the application of the precautionaryapproach is one of the general principles of theAgreement. (See also Annex II to the Agreement,“Guidelines for Application of PrecautionaryReference Points in Conservation andManagement of Straddling Fish Stocks and HighlyMigratory Fish Stocks”). The precautionaryapproach is also included in Annex II, article3(3)(c), of the Convention for the Protection of theMarine Environment of the North-East Atlantic.

50. Other international agreements in which theprecautionary approach appears include: HelsinkiConvention on the Protection of the MarineEnvironment of the Baltic Sea, Area article3(2)(1992); Amendments to the Protocol for theProtection of the Mediterranean Sea againstPollution from Land-Based Sources, Preamble(1996); Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution to abateAcidification, Eutrophication and Ground-LevelOzone, Preamble (1999); the Cartagena Protocolon Biosafety, Preamble (2000); Convention on theConservation and Management of HighlyMigratory Fish Stocks in the Western and CentralPacific Ocean, Preamble (2000); Convention onthe Conservation and Management of FisheryResources in the South-East Atlantic Ocean,Preamble (2001); the Stockholm Convention onPersistent Organic Pollutants, Preamble (2001); theEuropean Energy Charter Treaty, article 19(1)(1994); Agreement on the Conservation ofAlbatrosses and Petrels, article II(3) (2001); theConvention for Cooperation in the Protection andSustainable Development of the Marine andCoastal Environment of the Northeast Pacific,article 5 (6)(a) (2002); and the ASEAN Agreementon Transboundary Haze Pollution, article 3.(3)(2002).

51. Concrete application of the precautionaryapproach can be found in treaties for themanagement of living resources, especially thoseconcerning fishing. The 1995 United NationsAgreement for the Implementation of theProvisions of the United Nations Convention onthe Law of the Sea of 10 December 1982, relatingto the Conservation and Management of StraddlingFish Stocks and Highly Migratory Fish Stocksdeclares that states shall apply the precautionaryapproach (article 5(c)). Article 6 adds that suchapplication includes taking a precautionaryapproach widely to conservation, managementand exploitation of straddling fish stocks and highlymigratory fish stocks, inter alia, by improvingdecision-making in this field, by taking intoaccount uncertainties relating to the size andproductivity of the stocks, by developingknowledge, by not exceeding reference points, byenhanced monitoring and by adopting, ifnecessary, emergency measures. Similarly, the2000 Convention on the Conservation andManagement of Highly Migratory Fish Stocks in theWestern and Central Pacific Ocean provides thatthe Commission created by this instrument shallapply the precautionary approach (article 5(c)). ECRegulation 2371/2002 of December 2002 on the

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Conservation and Sustainable Exploitation ofFisheries Resources under the Common FisheriesPolicy also foresees that the Community “...shallapply the precautionary approach in takingmeasures designed to protect and conserve livingaquatic resources, to provide for their sustainableexploitation and to minimize the impact of fishingactivities on marine ecosystems...” (article 2(1)).

52. The precautionary principle has been invokedbefore the International Court of Justice. JudgeWeeramantry in his opinion dissenting from theOrder of the Court of 22 September 1995concluded that the precautionary principle wasgaining increasing support as part of theinternational law of the environment. JudgeWeeramantry stated:

“The law cannot function in protection of theenvironment unless a legal principle is involved tomeet this evidentiary difficulty, and environmentallaw has responded with what has come to bedescribed as the precautionary principle – a principlewhich is gaining increasing support as part of theinternational law of the environment.”

ICJ Order of 22 September 1995, at p. 342(Weeramantry, J., dissenting). In the GabçikovoCase, the International Court of Justice did notaccept Hungary’s argument that a state of necessitycould arise from application of the precautionaryprinciple.

53. The European Court of Justice (“ECJ”) has adoptedthe precautionary approach, particularly in respectto environmental risks that pose dangers to humanhealth. The Court held that the Commission hadnot committed manifest error when banning theexport of beef during the “mad cow” crisis. TheCourt said: “At the time when the contesteddecision was adopted, there was great uncertaintyas to the risks posed by live animals, bovine meatand derived products. Where there is uncertaintyas to the existence or extent of risks to humanhealth, the institutions may take protectivemeasures without having to await the reality andseriousness of those risks to become fullyapparent.” Judgement of the ECJ in Cases C-157/96(The Queen vs Ministry of Agriculture, Fisheriesand Food) and C-180/96 (UK vs Commission of theEC).

54. In the Southern Bluefin Tuna Case, the InternationalTribunal on the Law of the Sea (“ITLOS”) could notconclusively assess the scientific evidenceregarding the provisional measures sought by NewZealand and indeed, the country requested the

measures on the basis of the precautionaryprinciple, pending a final settlement of the case.ITLOS found that in the face of scientificuncertainty regarding the measures, action shouldbe taken as a measure of urgency to avert furtherdeterioration of the tuna stock. In its decision-making, the tribunal said that in its view, “theParties should in the circumstances act withprudence and caution to ensure that effectiveconservation measures are taken to prevent seriousharm to the stock of southern bluefin tuna.” SeeITLOS, Southern Bluefin Tuna Case (Australia andNew Zealand v. Japan), Order of August 27, 1999.The decision prescribed a limitation toexperimental fishing to avoid possible damage tothe stock.

55. Central to all of the preceding formulations is theelement of anticipation, reflecting the need foreffective environmental measures to be based uponactions which take a long-term approach andwhich anticipate possible revisions on the basis ofchanges in scientific knowledge. Also central toprecaution is the reality that environmentaldecision makers seldom, if ever, have all theinformation they would like to have before makinga decision.

56. The exercise of precaution with respect to riskmanagement can take many forms, including mostcommonly taking pollution-prevention actions orplacing the burden of proof safety on the person orpersons carrying out or intending to carry out anactivity that may cause harm, including using orimporting a drug or other potentially dangeroussubstance. Another precautionary method is toprovide additional margins of safety, beyond thosethat are directly verifiable by existing scientificinformation, for vulnerable groups such aschildren.

7. Prevention

57. Experience and scientific expertise demonstratethat prevention of environmental harm should bethe “Golden Rule” for the environment, for bothecological and economic reasons. It is frequentlyimpossible to remedy environmental injury: theextinction of a species of fauna or flora, erosion,loss of human life and the dumping of persistentpollutants into the sea, for example, createirreversible situations. Even when harm isremediable, the costs of rehabilitation are oftenprohibitive. An obligation of prevention alsoemerges from the international responsibility not tocause significant damage to the environment extra-

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territorially, but the preventive approach seeks toavoid harm irrespective of whether or not there istransboundary impact or internationalresponsibility.

58. The concept of prevention is complex, owing to thenumber and diversity of the legal instruments inwhich it occurs. It can perhaps better beconsidered an overarching aim that gives rise to amultitude of legal mechanisms, including priorassessment of environmental harm, licensing orauthorization that set out the conditions foroperation and the consequences for violation of theconditions, as well as the adoption of strategies andpolicies. Emission limits and other product orprocess standards, the use of best availabletechniques and similar techniques can all be seenas applications of the concept of prevention.

59. One obligation that flows from the concept ofprevention is prior assessment of potentiallyharmful activities. Since the failure to exercise duediligence to prevent transboundary harm can leadto international responsibility, it may beconsidered that a properly conductedEnvironmental Impact Assessment might serve as astandard for determining whether or not duediligence was exercised. Preventive mechanismsalso include monitoring, notification, andexchange of information, all of which areobligations in almost all recent environmentalagreements. ITLOS, in its Order of 3 December2001 in the MOX Plant Case, considered (para.82) the duty to cooperate in exchanginginformation concerning environmental risks a“fundamental principle in the prevention ofpollution of the marine environment” under theUnited Nations Convention on the Law of the Seaand general international law. Obligations toconduct EIAs are also found in the 1991 EspooConvention on Environmental Impact Assessmentin a Transboundary Context, the 1992 Conventionon the Transboundary Effects of IndustrialAccidents, and the 1993 North AmericanAgreement on Environmental Cooperation.Principle 17 of the 1992 Rio Declaration, Agenda21, principle 8(h) of the 1992 Non-Legally BindingAuthorative Statement of Principles for a GlobalConsensus on the Management, Conservation andSustainable Development of all Types of Forests(“Forests Principles, and article 14(1)(a) and (b) ofthe 1992 CBD treat both the national andinternational aspects of the issue. The concept isalso contained in article 206 of UNCLOS.

60. The duty of prevention extends to combating theintroduction of exogenous species into anecosystem. Article V(4) of the 1976 Convention onConservation of Nature in the South Pacific

provides that the contracting parties must carefullyexamine the consequences of such introduction.More stringently, article 22 of the 1997 UnitedNations Convention on the Law of the Non-Navigational Uses of International Watercoursesrequires watercourse states to “...take all measuresnecessary to prevent the introduction of species,alien or new, into an international watercoursewhich may have effects detrimental to theecosystem of the watercourse resulting insignificant harm to other watercourse States.”

61. In fact, the objective of most internationalenvironmental instruments is to preventenvironmental harm, whether they concernpollution of the sea, inland waters, the atmosphere,soil or the protection of human life or livingresources. Only a relatively few internationalagreements use other approaches, such as thetraditional principle of state responsibility or directcompensation of the victims.

8. “Polluter Pays Principle”

62. Principle 16 of the Rio Declaration provides:

“National authorities should endeavour topromote the internalization of environmentalcosts and the use of economic instruments, takinginto account the approach that the pollutershould, in principle, bear the cost of pollution,with due regard to the public interest and withoutdistorting international trade and investment.”

63. Principle 16 on internalisation of costs includeswhat has become known as the “Polluter PaysPrinciple” or “PPP”. According to the PPP, theenvironmental costs of economic activities,including the cost of preventing potential harm,should be internalized rather than imposed uponsociety at large. An early version of the PPP wasdeveloped by the Organization for Economic Co-operation and Development (“OECD”) in the1970s in an effort to ensure that companies wouldpay the full costs of complying with pollution-control laws and were not subsidised by the state.The PPP was adopted by the OECD as aneconomic principle and as the most efficient wayof allocating costs of pollution-prevention-and-control measures introduced by public authoritiesin the member countries. It was intended toencourage rational use of scarce resources and toavoid distortions in international trade andinvestment. It was meant to apply within a state,not between states. As a goal of domestic policy, ithas been realized only partially in practice. Seealso chapter 5 of this Manual.


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64. Since 1972, the PPP has gained increasingacceptance, has expanded in its scope to include(at least in theory) all costs associated withpollution, and has moved beyond the developed-country context. Some recent internationalinstruments that include it are: the 2003 Protocolon Civil Liability and Compensation for Damagecaused by the Transboundary Effects of IndustrialAccidents on Transboundary Waters to the 1992Convention on the Protection and Use ofTransboundary Watercourses and InternationalLakes and to the 1992 Convention on theTransboundary Effects of Industrial Accidents,Preamble, paragraphs two and three; and the 1996Protocol to the London Convention, article 3.2. ofwhich states that the polluter should, in principle,bear the cost of pollution.

65. Prior to UNCED, the polluter pays requirementwas included in different European Community(“EC”) documents such as the 1986 SingleEuropean Act, the 1992 Maastricht Treaty and inthe successive Programs of Action on theEnvironment. An important application of theprinciple is found in article 9 of EC Directive2000/60 on water, which requires member statesto take account of the principle of recovery of thecosts of water services, including environmentaland resource costs. Water pricing policies by 2010are to provide adequate incentives for the efficientuse of water resources. The Treaty Establishing theEuropean Community, Title XIX, sets out theprinciples meant to guide policy on theenvironment, principles that shape legislation inthe EC. Article 174(2) provides that ECenvironmental policy “...shall be based on theprecautionary principle and on the principles thatpreventive action should be taken, thatenvironmental damage should as a priority berectified at source and that the polluter shouldpay.” In sum, the polluter pays principle has to betaken into account by all the EC institutions, andthe European Court of Justice should ensure respectfor the principle in the cases it decides.

66. The 1990 International Convention on OilPollution Preparedness, Response andCooperation states in its preamble that the PPP is "ageneral principle of international environmentallaw” (para. 7). The 1992 Convention on theProtection of the Marine Environment of the BalticSea Area states in article 3(4) that the PPP is anobligatory norm, while the 1992 HelsinkiConvention on the Protection and Use ofTransboundary Watercourses and InternationalLakes includes it as a guiding principle in article2(5)(b). More recent examples of reference to it are

found in the 1996 Amendments to the 1980Protocol for the Protection of the MediterraneanSea against Pollution from Land-Based Sources(Preamble para. 5), and the 2001 StockholmConvention on Persistent Organic Pollutants(Preamble, para. 17).

67. Issues relating to the content of the polluter paysprinciple are evident in the 1992 Convention forthe Protection of the Marine Environment of theNorth-East Atlantic. According to article 2(2)(b),“The Contracting Parties shall apply: …the polluterpays principle, by virtue of which the costs ofpollution prevention, control and reductionmeasures are to be borne by the polluter.” This canbe interpreted in different ways depending uponthe extent of prevention and control and whethercompensation for damage is included in thedefinition of “reduction”. Further, the very conceptof the “polluter” can vary, from the producer ofmerchandise to the consumer who uses it and whopays the higher price resulting from anti-pollutionproduction measures.

68. In fact, pollution costs can be borne either by thecommunity, by those who pollute, or byconsumers. Community assumption of the costscan be demonstrated using the example of anunregulated industry that discharges pollutants intoa river. There are at least three possibilities:

(1) the river can remain polluted and renderedunsuitable for certain downstream activities, causingthe downstream community to suffer an economicloss; (2) the downstream community can build anadequate water treatment plant at its own cost; (3) the polluter may receive public subsidies forcontrolling the pollution.

In all these possibilities, the affected communitybears the cost of the pollution and of the measuresdesigned to eliminate it or to mitigate its effects.The PPP avoids this result by obliging the polluterto bear the full costs of pollution, to “internalise”them. In most cases, presumably, the enterprisewill in fact incorporate the costs into the price of itsproduct(s) and thus pass the cost on to theconsumer; but it need not do this for the PPP tohave its intended effect.

69. Without elaboration, it should be noted that thePPP has also been increasingly accepted andapplied at national level including in statutes inmany countries in the developing world, and intheir national supreme courts such as in South Asia,Africa and elsewhere in the world.

9. Access and Benefit Sharing regarding Natural Resources

70. Many indigenous and other local communities relyon natural resources such as forests, high deserts,wetlands, waterways, and fisheries for theirlivelihood or even existence. In addition,indigenous and other local communities oftenhave unique cultures integrated with naturalresources. These communities typically relate tothese resources in a sustainable way, or else theirlivelihoods would disappear or their cultureswould perish.

71. As a general matter, it is clear from Rio Principle 10(quoted in paragraph 29 above) and internationalhuman rights norms that these communities andthe individuals comprising them have the right toparticipate in decision-making processes withrespect to those resources. They may also havesubstantive rights to those resources, the nature ofwhich depends on both international and domesticlaw. See, e.g., Awas Tingni Mayagna (Sumo)Indigenous Community vs the Republic ofNicaragua, Inter-American Court of Human Rights(2001). In addition to international human rightslaw, an international law example is the 1995United Nations Agreement on Fish Stocks, whichin article 24(2)(b) requires states to take intoaccount when establishing conservation andmanagement measures the need to ensure accessto fisheries by indigenous people of developingstates, particularly Small Island Developing States.At the domestic level, in addition to standardlegislation protecting property rights for everyone,several nation’s constitutions, legislation orcustomary law recognizes property rights whichindigenous or other local communities mayexercise over their land and waterways or whichenable indigenous or other local communities totake part in decision-making processes.

72. A related issue is the extent to which indigenousand other local communities have the right toparticipate in, or otherwise should be involved in,the management, development and preservation ofthe resources on which they rely. Principle 22 ofthe Rio Declaration provides:

“Indigenous people and their communities and otherlocal communities have a vital role in environmentalmanagement and development because of theirknowledge and traditional practices. States shouldrecognzse and duly support their identity, culture andinterests and enable their effective participation in theachievement of sustainable development.”

Principle 22 finds its further elaboration in chapter26 of Agenda 21.

73. The 1993 Nuuk Declaration on Environment andDevelopment in the Arctic States, in Principle 7,recognizes the vital role of indigenous peoples inmanaging natural resources.

“We recognize the special role of indigenouspeoples in environmental management anddevelopment in the Arctic, and of the significance oftheir knowledge and traditional practices, and willpromote their effective participation in theachievement of sustainable development in theArctic.”

74. With respect to biological diversity, the vital role ofindigenous and other local communities isexpressly recognized in preambular paragraph 12of the 1992 Convention on Biological Diversity,and is further detailed in its articles 8(j), 10(c), and17.2. Article 8(j) states that:

Contracting Parties shall:"subject to its national legislation, respect, preserveand maintain knowledge, innovations and practicesof indigenous and local communities embodyingtraditional lifestyles...and promote their widerapplication with the approval and involvement of theholders of such knowledge, innovations and practicesand encourage the equitable sharing of the benefitsarising from the utilization of such knowledge,innovations and practices".

75. As a practical matter, the knowledge of indigenousand other local communities, their participation indecision-making and their involvement inmanagement is often crucial for the protection oflocal ecosystems, for sound natural resourcemanagement, and for the broader effort to achievesustainable development taking into account theirtraditional knowledge and cultural environment.Their involvement in EIA procedures is anexample of their valuable participation indecision-making for sustainable development.

76. As a legal matter, the question has arisen whetherindigenous and local communities have, inaddition to the procedural and substantive rightsidentified above, the right to Prior InformedConsent (“PIC”) (sometimes referred to as “free,prior and informed consent” or “FPIC”) withrespect to the use of their knowledge and the

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1993 Nuuk Declaration on Environment andDevelopment in the Arctic States

Principle 7

1992 Convention on Biological DiversityArticle 8(j)

genetic resources on which they rely. In the wordsof article 8(j) (quoted above), what does “with theirapproval” entail? Some believe that there is anabsolute right to such prior informed consent;some believe that such a right exists but that it issubject to the proper exercise of eminent domain;and others believe that no such right exists unlessembodied in domestic law. Similarly, questionsexist regarding the terms on which suchknowledge and genetic resources may be used or,in the words of article 8(j), what is “equitablesharing”? The analysis of these questions maydiffer depending on whether the local communityis indigenous or not, to the extent indigenouspeople have different or additional rights underinternational or domestic law. For example, theInternational Labour Organization has adoptedvarious conventions relating to indigenous people,starting in 1936 with the, now outdated,Recruiting of Indigenous Workers Convention, tothe 1989 Indigenous and Tribal PeoplesConvention; also the 1992 Forest Principles 2(d),5(a) and 12(d) refer to the recognition of traditionalor indigenous rights.

77. At the time of this writing (2005), these questionsare being discussed in several international fora,including the Conference of the Parties to the 1992Convention on Biological Diversity, the WorldIntellectual Property Organization, the WorldTrade Organization Agreement on Trade-RelatedAspects of Intellectual Property Rights, the WorldBank, the International Finance Corporation, andvarious regional development banks and exportcredit agencies. Some institutions already haveprocesses in place that are similar to priorinformed consent.

10. Common Heritage and Common Concern ofHumankind

78. The concepts of “common heritage of humankind”and “common concern of humankind” reflect thegrowing awareness of the interdependence of thebiosphere and the environmental problemsbesetting it, as well as of the global nature of manyenvironmental problems and the criticalimportance of those problems. It is thusincreasingly acknowledged that the internationalcommunity has an interest in these issues.

79. The protection, preservation and enhancement ofthe natural environment, particularly the propermanagement of the climate system, biologicaldiversity and fauna and flora of the Earth, aregenerally recognized as the common concern ofhumankind. Basic assumptions implicit in thecommon concern concept include that states and

other actors should not cause harm with regard toissues of common concern, and that states andother actors share responsibility for addressingcommon concerns.

80. The resources of outer space and celestial bodiesand of the sea-bed, ocean floor and subsoil thereofbeyond the limits of national jurisdiction aregenerally recognized as the common heritage ofhumankind. The international community’sinterest in these is probably stronger, generallyspeaking, than it is with respect to commonconcern, though the contours of that interest arenot clearly defined.

11. Good Governance

81. The concept of good governance is relativelyrecent and reflects a growing awareness of theimportance to sustainable development oftransparent, accountable, honest governance, aswell as a growing awareness of the corrosive effectof corruption on public morale, economicefficiency, political stability and sustainabledevelopment in general. The concept implies,among others, that states and internationalorganizations should: (a) adopt democratic andtransparent decision-making procedures andfinancial accountability; (b) take effective measuresto combat official or other corruption; (c) respectdue process in their procedures and observe therule of law more generally; (d) protect humanrights; and (e) conduct public procurement in atransparent, non-corrupt manner.

82. Good governance implies not only that CivilSociety has a right to good governance by statesand international organizations, but also that non-state actors, including business enterprises andNGOs, should be subject to internal democraticgovernance and effective accountability. Inaddition, good governance calls for corporatesocial responsibility and socially responsibleinvestments as conditions for the existence of asustainable global market that will achieve anequitable distribution of wealth among and withincommunities.

83. Good governance requires full respect for theprinciples of the 1992 Rio Declaration onEnvironment and Development, including the fullparticipation of women in all levels of decision-making. Achieving good governance is essential tothe progressive development, codification andimplementation of international and domestic lawrelating to sustainable development. Also, Goal 8of the Millennium Development Goals ondeveloping a global partnership for development,

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has as one of its targets (target 12) to “Developfurther an open, rule-based, predictable, non-discriminatory trading and financial system.Includes a commitment to good governance,development, and poverty reduction - bothnationally and internationally.”

Dr. Daniel B. Magraw Jr., President, Center forInternational Environmental Law (CIEL)

Barbara Ruis, Legal Officer, Division of PolicyDevelopment and Law, UNEP

Resources

Text Materials

Afshin A-Khavari and Donald R. Rothwell, THE ICJ AND THE DANUBE DAM CASE: A MISSED OPPORTUNITY FOR

INTERNATIONAL ENVIRONMENTAL LAW?, (22 Melbourne U.L.R. 507, December, 1998).

John S. Applegate, The Taming of the Precautionary Principle, 27 WM. & MARY ENVTL. L. & POL’Y REV. 13, (Fall2002).

Patricia W. Birnie and Alan E. Boyle, INTERNATIONAL LAW AND THE ENVIRONMENT, (Oxford: Clarendon Press; NewYork: Oxford University Press, 1992).

Alan Boyle and David Freestone (Eds.), INTERNATIONAL LAW AND SUSTAINABLE DEVELOPMENT, (Oxford; New York:Oxford University Press, 1999).

DECLARATION OF PRINCIPLES OF INTERNATIONAL LAW RELATING TO SUSTAINABLE DEVELOPMENT, (United Nations GeneralAssembly, Doc. A/57/329, 31 August 2002, International Law Association, New Delhi , adopted in New Dehli, 6April 2002).

Nicolas De Sadeleer, ENVIRONMENTAL PRINCIPLES: FROM POLITICAL SLOGANS TO LEGAL RULES, (Oxford University Press,2002).

Joseph F. DiMento, THE GLOBAL ENVIRONMENT AND INTERNATIONAL ENVIRONMENTAL LAW, (1st Ed., Austin:University of Texas Press, 2003).

DRAFT INTERNATIONAL COVENANT ON ENVIRONMENT AND DEVELOPMENT, (elaborated by the Commission onEnvironmental Law of the IUCN/World Conservation Union, in cooperation with the International Council ofEnvironmental Law) Launched at the United Nations Congress on Public International Law, (New York, 13-17March 1995).

FINAL REPORT OF THE EXPERT GROUP WORKSHOP ON INTERNATIONAL ENVIRONMENTAL LAW AIMING AT SUSTAINABLE

DEVELOPMENT, (UNEP/IEL/WS/3/2).

David Freestone and Ellen Hey (Eds.), THE PRECAUTIONARY PRINCIPLE AND INTERNATIONAL LAW: THE CHALLENGE OF

IMPLEMENTATION, (Boston: Kluwer Law International, 1996).

Anita Margrethe Halvorssen, EQUALITY AMONG UNEQUALS IN INTERNATIONAL ENVIRONMENTAL LAW: DIFFERENTIAL

TREATMENT FOR DEVELOPING COUNTRIES, (Boulder; Westview Press, 1999).

David Hunter, James Salzman, Diuwood Zaelke, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY, CHAPTER 7, CASEBOOK

SERIES, (Foundation Press, 2002).

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Alexandre Kiss and Dinah Shelton, INTERNATIONAL ENVIRONMENTAL LAW, (Transnational Publishers Incorporated,third edition 2004).

Graham Mayeda, Where Should Johannesburg Take Us? Ethical and Legal Approaches to SustainableDevelopment in the Context of International Environmental Law, 15 COLO. J. INT’L. L. & POL’Y 29, (Winter2004).

Dr. Hans-Joachim Priess & Dr. Christian Pitschas, Protection of Public Health and the Role of PrecautionaryPrinciple under WTO Law: A Trojan Horse before Geneva’s Walls?, 24 FORDHAM INT’L L. J. 519, ( 2000).

REPORT OF THE INTERNATIONAL ENVIRONMENTAL CONFERENCE ON CODIFYING THE RIO PRINCIPLES IN NATIONAL LEGISLATION,(The Hague, 22-24 May 1996, organized by the Netherlands Ministry of Housing, Spatial Planning and theEnvironment, Publikatiereeks milieubeheer, No. 1996/4).

RIO DECLARATION ON ENVIRONMENT AND DEVELOPMENT: APPLICATION AND IMPLEMENTATION, REPORT OF THE SECRETARY-GENERAL, (United Nations, Economic and Social Council, E/CN.17/1997/8, 10 February 1997).

Philippe Sands, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW, (Cambridge University Press, second edition, 2003).

Nico Schrijver, SOVEREIGNTY OVER NATURAL RESOURCES, BALANCING RIGHTS AND DUTIES, (Cambridge University Press,1997).

Maurice Sheridan and L. Lavrysen, ENVIRONMENTAL LAW PRINCIPLES IN PRACTISE, (Bruxelles: Bruylant, 2002).

Krista Singleton-Cambage, INTERNATIONAL LEGAL SOURCES AND GLOBAL ENVIRONMENTAL CRISES: THE INADEQUACY OF

PRINCIPLES, TREATIES AND CUSTOM, (2 ILSA J Int’l & Comp L 171, Fall 1995).

Candice Stevens, Interpreting the Polluter Pays Principle in the Trade and Environment Context, 27 CORNELL

INT’L L. J. 577 (Summer, 1994).

Arie Trouwborst, EVOLUTION AND STATUS OF THE PRECAUTIONARY PRINCIPLE IN INTERNATIONAL LAW, (Hague; London:Kluwer Law International, 2002).

C.G. Weeramantry, NAURU: ENVIRONMENTAL DAMAGE UNDER INTERNATIONAL TRUSTEESHIP, (Melbourne; New York:Oxford University Press, 1992).

World Commission on Environment and Development, OUR COMMON FUTURE, (Oxford Unversity Press, 1987).

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COMPLIANCE AND ENFORCEMENT OFMULTILATERAL ENVIRONMENTAL AGREEMENTS Chapter 4

4. COMPLIANCE ANDENFORCEMENT OFMULTILATERALENVIRONMENTALAGREEMENTS

I. Introduction

1. Multilateral Environmental Agreements (MEAs) area result of international action by governments todevelop standards through treaties or through non-binding instruments, that come fromintergovernmental fora and influential internationaldeclarations, resolutions, and conferencedocuments. These treaties or non-bindinginstruments provide obligations for Governmentsto undertake either individual or joint action toimplement international legal instruments. Thischapter focuses on MEAs in the form of treaties,which follow the process of ratification, adhesion,or accession by governments who then assume theobligations as soon as the treaty enters into force.The ratification, accession or adherence of a treatyby a state is the beginning of the process ofimplementation of its provisions at the nationallevel.

2. The process and required actions forimplementation of MEAs normally depend uponthe provisions of the treaty but in most cases theactions range from implementing nationalmeasures provided for in the environmental treatysuch as adopting policies, developing and/orstrengthening national legislation and institutions,and/or taking up administrative action toimplement MEAs. Since parties to most MEAs arerequired to report on measures taken to implementtreaties, a review process is vital as well as earlydetermination of which entity, at national level,will handle reporting, or the focal point of theparticular treaty.

3. For many years, issues of compliance with andenforcement of MEAs were considered as mattersfor a state to address when implementing anyinternational environmental legal instrument.More recently, the negotiation of MEAs, decisionsof the Conference of the Parties (“COP”), and thework of Convention Secretariats have establishedand/or provided for mechanisms to monitorcompliance which have included, inter alia,reporting mechanisms and the development andimplementation of non-compliance procedures for

some core MEAs. MEAs are normally negotiatedunder the framework of international organizationsthat parties also work with to facilitate theimplementation of the conventions and interveneby providing technical assistance to governmentsin the implementation process. Institutionalmechanisms established by MEAs such asConvention Secretariats and the main governingbodies of treaties (COP) also play a role infacilitating and overseeing implementation ofMEAs. Compliance mechanisms are tools that havealso been established by MEAs to ensure efficacy ofenvironmental treaties and to keep track of theimplementation of MEAs.

4. Under the auspices of the United NationsEnvironment Programme (“UNEP”), governmentsrecently adopted global guidelines to assist andguide the process of implementation of MEAs.These guidelines were adopted in February 2002by UNEP Governing Council decision SSVII/4 forthe purpose of enhancing compliance with, andenforcement of environmental law, and arereferred to as Guidelines for Compliance with andEnforcement of Multilateral EnvironmentalAgreements.

5. Compliance efforts can take a wide variety offorms, including education, technical assistance,voluntary compliance programmes, subsidies andother forms of financial assistance, or incentives,administrative enforcement, civil judicialenforcement and criminal enforcement. Thischapter focuses on implementation of MEAs andexplores some of the issues and challenges that ledgovernments to address issues of compliance andenforcement of MEAs at the international level inthe past few years. This chapter also analyzesexisting mechanisms developed to ensurecompliance with and enforcement of MEAs as wellas the opportunities brought by the adoption of theUNEP’s Compliance and Enforcement Guidelinesto enhance the implementation of MEAs.

II. International Framework

6. “Compliance” means the conformity withobligations, imposed by a state, its competentauthorities and agencies on the regulatedcommunity, whether directly or through conditionsand requirements, permits, licenses andauthorizations, in implementing MEAs Compliancealso means the fulfilment by the contracting partiesof their obligations under a MEA.

7. “Environmental law violation” means thecontravention of national environmental laws and

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regulations implementing MEAs. "Environmentalcrime" means the violations or breaches of nationalenvironmental laws and regulations that a statedetermines to be subject to criminal penaltiesunder its national laws and regulations.

8. “Enforcement” means the range of procedures andactions employed by a state, its competentauthorities and agencies to ensure thatorganizations or persons, potentially failing tocomply with environmental laws or regulationsimplementing MEAs, can be brought or returnedcompliance and/or punished through civil,administrative or criminal action.

1. The Importance of Compliance and Enforcement

9. The need to ensure implementation of MEAs, theproliferation of MEAs as well as the emergence ofenvironmental violations or offenses (at timesloosely referred to as crimes), crimes emanatingfrom violations of existing environmentalconventions are said to be the reason for theemphasis at the international level on issuesrelating to compliance and enforcement ofenvironmental law.

10. With more than 500, or according to some almost1000, MEAs in place around the globe and therealization that there is a need for theimplementation of these MEAs, the attention isshifting from treaty-making which preoccupied theinternational community since the 1970s tocompliance and enforcement and implementationof existing treaties.

11. Another issue of great concern, which also causedgovernments to focus on issues of compliance andenforcement was the emergence of criminalactivity involving violations of existing MEAs(dealing with trade, chemicals, wastes) includingillegal traffic and trade in banned products.

12. In response to concerns by governments on theincrease of environmental crimes withtransboundary effects, UNEP organized aworkshop on MEAs Compliance and Enforcement,held in 1999 in Geneva, Switzerland. Theworkshop examined the implementation of threemajor MEAs, including the Convention onInternational Trade in Endangered Species of WildFauna and Flora (“CITES”), the Montreal Protocolon Substances that deplete the Ozone Layer(“Montreal Protocol”), and the Basel Conventionon the Control of Transboundary Movements ofHazardous Wastes and their Disposal (“BaselConvention”). This workshop indicated there was

a significant increase in environmental crimes,including illegal traffic in bannedchlorofluorocarbons and hazardous wastes, as wellas illegal trade in wildlife species which wereundermining the objectives of the three treaties.The serious global problem of environmentalcrimes was underscored, as well as the need toenhance the capacity of different actors who havea role in ensuring compliance with andenforcement of MEAs.

13. The participants and experts attending thisworkshop were drawn from different types ofenforcement agencies from both developed anddeveloping countries including the ConventionSecretariats and other enforcement organizationslike INTERPOL, the World Customs Organization,the International Network for EnvironmentalCompliance and Enforcement (“INECE”), theEuropean Union Network for the Implementationand Enforcement of Environmental Law (“IMPEL”),and the Commonwealth Secretariat.

14. CITES, the Montreal Protocol, and the BaselConvention have some form of compliancemechanisms. In comparing the reports andstatistics on violations of the MEAs and the cost ofthe environmental damages caused by theseviolations, it was clear that there was a need to findways to prevent environmental crimes byenhancing compliance with and enforcement ofMEAs.

15. In assuming obligations in a MEA to beimplemented at the national level, a state party to atreaty is expected to take measures to implementthe MEA and to make use of the facilities providedfor by environmental treaties that are aimed atfacilitating the process of implementation at thenational level, including inter alia:

• Provision of technical assistance in developmentand strengthening of legislation;

• Adoption of compliance and enforcementpolicies;

• Undertaking administrative action;• Planning (action plans, inventories, strategies);• Capacity building;• Financial assistance; and• Technology transfer.

16. In identifying some of the challenges parties face inthe process of implementation, it is important tonote, for example, that compliance requiresidentifying roles and responsibilities of the keyplayers (depending on the MEA, the leadorganization should be identified). It also requireseffective coordination in the government structure

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because, in almost all cases, implementationrequires a multi-sectoral approach and must beorganized to ensure that those responsible forimplementation are involved and do take action.In ensuring compliance competency, expertise orequipment may also be required because someitems that are being protected by MEAs aretechnical. Another challenge that state parties faceis to promote, encourage and to monitorcompliance. Most of these measures involve costsand require each party’s ability and willingness toinvest resources in these areas or to use facilitiesdeveloped under the MEA to facilitate itsimplementation.

17. For the purpose of facilitating implementation,most MEAs establish institutions such asSecretariats, COPs and other technical bodies tooversee the implementation of the Convention,and to provide policy guidance. Other innovativeways to ensure the effectiveness of MEAs include afinancial mechanism (project development) andreporting requirements aimed at verifying theimplementation of the Convention. A number ofinternational organizations responsible foroverseeing the implementation of theseinternational environmental legal instruments,however, have been providing some form oftechnical assistance, including capacity-buildingprogrammes to assist governments to implement ormeet their international obligations.

2. Institutional Arrangements for the

Implementation of MEAs

18. Apart from establishing various institutions such asthe Conference of the Parties also referred to as theMeeting of the Parties, Convention Secretariats,and Advisory bodies, other innovative ways toensure the effectiveness of MEAs include areporting mechanism with monitoring facilities thatare aimed at verifying the implementation of theconvention and a financial mechanism that isintended to provide financial facilities to covercosts for implementation of activities. Compliancemechanisms have been equally developed toaddress issues of non-compliance withenvironmental conventions, including liability andcompensation regimes.

a) Conferences/Meetings of the Parties of a MEA

19. Regarding compliance considerations in MEAs, thecompetent body of a MEA such as the COP could,where authorized to do so by the convention,regularly review the overall implementation ofobligations under the MEA and examine specificdifficulties of compliance and consider measures

aimed at improving it. This is not a model for allMEAs but parties through the MEA or the COP arebest placed to choose the approaches andmodalities that are useful and appropriate forenhancing compliance with MEAs. It is to be notedthat older treaties did not provide for suchapproaches or modalities while recentenvironmental treaties do in almost all cases. Arecent such treaty is the African Convention forNature Protection, Algiers 1968 which was revisedand adopted by the African Union in 2003; thenew instrument has established a COP and regularmechanism for review.

b) Convention Secretariats

20. MEAs also establish or designate ConventionSecretariats to carry out a number of functions suchas to prepare and convene COPs and to undertakeSecretariat functions on behalf of the parties. TheSecretariat is also expected to transmit to the partiesinformation, as well as to consider enquiries by,and information from, the parties and, among otherfunctions, to consult with them on questionsrelating to the convention and its protocols, tocoordinate the implementation of cooperativeactivities agreed upon by the Meetings of theParties (“MOPs”), and to ensure the necessarycoordination with other regional and internationalbodies that the parties consider competent. Partiesare also expected to designate focal points or arelevant national authority to act as channels ofcommunication with the Convention Secretariat.

c) Advisory bodies

21. Scientific advisory panels, technical groups,working groups, or various committees includingimplementation committees, are normallyestablished for specific purposes. Scientificadvisory panels are set up when the convention isdealing with technical matters that only a group ofscientists can advise parties on managing theproblem that the convention wishes to address.The COP is empowered by most MEAs to establishtechnical groups and working groups on an ad hocbasis, when need arises to address certain issuesand to report back to the parties. A number ofconventions have established financialmechanisms that have designated bodies to dealwith financial aspects such as trust funds,multilateral funds or the Global EnvironmentalFacility (“GEF”). Most MEAs also provide that theparties would establish compliance procedureswhere these procedures set up implementationcommittees comprising of various parties whichlook into claims of violations of the MEA.

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d) Reporting Mechanisms to track Progress in theImplementation of Treaties

22. Most environmental conventions provide forcontracting parties to transmit regularly to theSecretariat information on the measures adoptedby them in the implementation of the conventionto which they are parties. This information istransmitted in such form and at such intervals asthe meetings of the contracting parties shalldetermine. The intention of this reporting is a wayof monitoring implementation and a way ofverifying if the MEA is being implemented. Withthe proliferation of MEAs there has been a concernraised by parties of the many requirements forreporting, and attempts are made to streamline thereporting process which, hitherto, has not beensuccessful because different MEAs require differenttypes of information.

23. MEAs often include provisions for reporting,monitoring and verification of the informationobtained on compliance. These provisions canhelp promote compliance by, inter alia, potentiallyincreasing public awareness. When data collectionand reporting requirements are too onerous andare not coordinated or do not take into accountsynergies with similar MEAs, they can discourageand burden parties in complying with reportingrequirements. MEAs can and do include suchrequirements as the following:

• Provisions in treaties that call for regular andtimely reports on compliance, using anappropriate common format that is sent out bythe Secretariat. Simple and brief formats couldbe designed to ensure consistency, efficiencyand convenience in order to enable reportingon specific obligations. MEAs Secretariats canconsolidate responses received to assist in theassessment of compliance. Reporting on non-compliance can also be considered, and theparties can provide for timely review of suchreports;

• Provisions on monitoring requirements thatinvolve the collection of data and inaccordance with a MEA can be used to assesscompliance with an agreement. As a countrycollects data, it is easy to identify complianceproblems and indicate solutions. States that arenegotiating provisions regarding monitoring inMEAs could consider the provisions in otherMEAs related to monitoring; and

• Provisions on verification requirements thatinclude checking the accuracy of data andtechnical information in order to assist inascertaining whether a party is in complianceand, in the event of non-compliance, the

degree, type and frequency of non-compliance. The principal source ofverification might be national reports.Consistent with the provisions in the MEAs andin accordance with any modalities that mightbe set by the COP, technical verification couldinvolve independent sources for corroboratingnational data and information.

24. At the receipt of such reports the Secretariats inmost MEAs examine the national reports todetermine if they have been presented in the rightformat, and circulate them to other parties. TheSecretariats also bring to the attention of the partiesany request for assistance in the implementation ofthe particular MEA.

e) Financial Mechanisms

25. A financial mechanism is important not only tosupport implementation efforts of the contractingparties but also to undertake projects that canenhance the implementation of MEAs. Therealization over the years that some implementingmeasures can be costly and hence difficult fordeveloping country contracting parties toundertake, resulted in parties including provisionsof a financial mechanism within MEAs. Parties ofsome MEAs have also established financial rules byoutlining rules that govern the different financialmechanisms. The financial mechanisms so fardeveloped by MEAs have taken different forms,including the following:

• Trust Funds developed under the framework ofRegional Seas Conventions that werenegotiated under the auspices of UNEP, whosecontribution comes from parties to thoseconventions. UNEP which provides Secretariatservices for Regional Seas Conventions underits auspices, provides seed money toimplement the work programme of theRegional Seas Programme with activities thatare intended to enhance capacity of the partiesto implement their Convention.

• The Convention on Biological Diversity(“CBD”) and the United Nations FrameworkConvention on Climate Change (“UNFCCC”),among other MEAs, designate the GEF as theirfinancial mechanism. (See Chapter 6). ThroughGEF, parties from developing countries havereceived financial support to coverincremental costs that they would otherwisehave incurred in the implementation of thepertinent MEA. GEF also supports projects in anumber of focal areas, namely, ozonedepletion, climate change, biodiversity, sharedwater resources, desertification and chemicals

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to cover the incremental costs of memberstates in implementing these conventions atthe national level and at the trans-boundarylevel.

• The parties to the UNFCCC also agreed toestablish three new funds to promotecompliance by developing countries. Two ofthese funds are under the UNFCCC and oneunder the Kyoto Protocol. The new funds, inaddition to the GEF funding that is available tothe parties, are also managed by GEF. COP-7decided to create “a special climate changefund” complementary to GEF funding toprovide finances for the adaptation totechnology transfer, and the mitigation ofgreenhouse gases. In addition, countries thatare heavily dependent on the export of fossilfuels are encouraged and assisted indiversifying their economies. The second fund,reserved for the Least Developed Countries(“LDC”), is intended to assist financially in thepreparation of national programmes. The thirdis an adaptation fund under the Kyoto Protocolto be financed by voluntary contributions andby 2% of proceeds from certified emissionsreductions generated by the CleanDevelopment Mechanism (“CDM”) underarticle 12 of the Kyoto Protocol. It marks thefirst time that a levy is anticipated on businesstransactions to finance environmental anddevelopmental activities.

• The Multilateral Environment Fund of theMontreal Protocol, along with GEF fundingwhich is also available to the parties of theUnited Nations’ ozone conventions, wasestablished to support implementation of theVienna Convention on the Protection of theOzone Layer and in particular to enabledeveloping countries to meet the requirementsof the Montreal Protocol, thereby addressingozone depletion and related problems. Thefund was also established to implement articles5, paragraphs 2 and 3, in conjunction witharticles 9 and 10 of the Montreal Protocol. Anumber of parties and organisations such asUnited Nations Development Programme(“UNDP”), United Nations EnvironmentProgramme (“UNEP”), World Bank, or otherappropriate agencies depending on theirrespective areas of expertise are part of theExecutive Committee of the Multilateral Fundfor the Implementation of the MontrealProtocol. The role of the Executive Committeeis to develop and monitor the implementationof specific operational policies, guidelines andadministrative arrangements, including thedisbursement of resources for the purpose ofachieving the objectives of the MultilateralFund. The COP reviews the work of the

Multilateral Fund. For further information onthe Multilateral Environment Fund of theOzone Convention including its terms ofreference, source of contributions, functions,and criteria for disbursing funds forincremental costs of implementation of theozone conventions and the countries that haveso far benefited from this facility, read the latestedition of the Handbook for the InternationalTreaties for the Protection of the Ozone Layer.

f) Non-Compliance Procedures/Mechanisms

26. In the non-compliance procedure of the MontrealProtocol, a party that cannot meet its obligationsmay report its compliance problems to theImplementation Committee. In addition, any partyor parties that have concerns about another party'simplementation of its obligations under theMontreal Protocol may communicate the concernsin writing, supported by corroborating information,to the Secretariat. The Implementation Committeecan request further information upon the invitationof the party concerned and can gather information.At the end of the procedure, the ImplementationCommittee reports to the meeting parties. Anyrecommendation it considers appropriate can beincluded in the report, which is made available tothe parties six weeks before the meeting. The MOPmay decide upon steps to bring about compliancewith the Montreal Protocol. Any state involved ina matter under consideration by theImplementation Committee cannot take part in theelaboration and adoption of any recommendationsconcerning it. The parties subject to the proceduremust subsequently inform the MOP of themeasures they have taken in response to the report.

27. Annex V of Decision IV/18 contains an indicativelist of measures that might be taken by the MOP inrespect of non-compliance with the MontrealProtocol. The first consists of providing assistance,for example, the collection and reporting of data,technology transfer, financing, information transferand training. At the second level, “cautions” areissued. The third level involves the suspensionof specific rights and privileges under theMontreal Protocol. Such rights and privilegescan concern industrial rationalization, production,consumption, trade, transfer of technology,financial mechanisms and industrial arrangements.A number of countries have been considered underthe Montreal Protocol’s non-complianceprocedure.

28. The Kyoto Protocol compliance regime wasdeveloped pursuant to Article 17 of the ClimateChange Convention by the Conference of theParties serving as the MOP to the Kyoto Protocol.

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A joint working group elaborated a draft regime oncompliance that COP 7 approved in 2001 as partof the Marrakech Accords. The objective of theregime is to “facilitate, promote and enforcecompliance with the commitments under theProtocol.” The Marrakech Accords contain aninnovative, unprecedented compliancemechanism. It foresees a compliance committeewith two branches, a facilitative branch and anenforcement branch. The facilitative branchsupports efforts by parties to comply. Theenforcement branch monitors compliance with themost important obligations. The enforcementbranch has several tools available to bring aboutcompliance: a party may be prohibited from sellingunder the emissions trading regime and for everyton of emissions by which a party exceeds itstarget, 1.3 tons will be deducted from its assignedamong for the subsequent commitment period.The party will be required to submit a complianceaction plan for review by the committee. Anappeals procedure provides for a review ofdecisions by the UNFCCC COP serving as theKyoto Protocol’s MOP. During the procedure, thedecisions by the Compliance Committee remain inforce. Overturning the decision requires a three-fourth's majority of the COP/MOP. Both branchesof the committee are composed of ten members,one each from the five regions, one Small IslandDeveloping State and two from Annex I and twofrom non-Annex I countries. A double majorityvote is required for decisions: three-fourths of allmembers including a simple majority of Annex Iand non-Annex I countries.

29. The compliance procedure was not adopted as anamendment to the Kyoto Protocol and thus is notlegally binding as part of the treaty. However, uponadoption, it has the advantage of being applicableto all parties to the Kyoto Protocol.

3. Effectiveness of the Non-Compliance Procedure

30. Although a number of MEAs have adopted someform of non-compliance procedures, otherprocedures are still being developed. Thecompliance procedures are characterized by theircooperative, non-confrontational and non-judicialnature and in their aim of seeking amicablesolutions to problems arising in connection withthe application and implementation ofenvironmental agreements. The trend is to movefrom the traditional confrontational mechanismsfor enforcing MEAs to new mechanisms that canhelp parties better comply with their contractualobligations. Most procedures do not aim atcompelling a party to comply with the obligationsand requirements of the treaty but rather a party isassisted in its problems of compliance. The status

of these procedures is between dispute avoidanceand dispute settlement. The very purpose of thenon-compliance procedures is to encourage orenable states to avoid resorting to formal disputesettlement procedures that are also usuallyprovided by international environmentalagreements but, outside the WTO, are hardly used.

31. In fact, many compliance procedures combineelements of three distinct processes: (1) processesdesigned to clarify norms and standards employedby a treaty; (2) processes designed to further theevolution of these norms and standards; and (3)processes designed to resolve problems amongparties. The effect on states or a proceeding beforeformally constituted bodies under a MEA such asthe Implementation Committee or Compliancecommittee is mainly to provide assistance to thedefaulting state and to assist parties havingcompliance problems and addressing individualcases of non-compliance. It does not have theeffect of compelling the state to act as such. Thelong-standing procedure is the one that has beenelaborated under article 8 of the Montreal Protocol.

32. To strengthen the effectiveness of implementationmechanisms developed by the convention, partiesshould place particular emphasis on the followingaspects:

• Encourage parties to MEAs to develop andapply effective mechanisms forimplementation of and compliance with thoseagreements;

• Promote the development and effectiveapplication of economic, legal and otherincentives to enhance parties’ implementationand compliance of their internationalobligations; and

• Promote greater use of civil liabilityapproaches at the national level to enhanceimplementation of environmental law.

33. In principle, provisions for settlement of disputescomplement the provisions aimed at compliancewith MEAs. The appropriate form of disputesettlement mechanism can depend upon thespecific provisions contained in a MEA and thenature of the dispute. A range of procedures couldbe considered, including good offices, mediation,conciliation, fact-finding commissions, disputeresolution panels, arbitration and other possiblejudicial arrangements that might be reachedbetween parties to the dispute.

34. Developing effective national legal regimes shouldbe considered including considering developmentof any further regulations if required as provided inchapter 8 of Agenda 21, and paragraphs 162

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through 167 of the Plan of Implementation of theWorld Summit on Sustainable Development(“WSSD”). The “Polluter Pays Principle”, the“Common but Differentiated ResponsibilityPrinciple“ and other principles and conceptsshould be taken into account by decision-makerswhen considering measures and the timing forimplementation of MEAs. The use of economicinstruments is important in implementation ofenvironmental law including in compliance andenforcement, not only for the purpose of financingenvironmental management, but particularly forencouraging environmentally responsiblebehaviour through the use of incentives ordisincentives in environmental management. Thiscan be a very effective choice in measures to beconsidered in implementation of MEAs.

35. Enforcement capacity and strengthening ofcompliance institutions are important if theenforcement is to be undertaken in an informedmanner by the responsible authorities, especiallywhen some of the environmental problems arevery technical and sometimes hard for somepeople to understand. This situation points out theimportance of training, public awareness andsensitization of all who are responsible forenforcement and compliance of MEAs. Thiscapacity building can be undertaken ingovernment as part of human resourcedevelopment or in collaboration with ConventionSecretariats. Access to information as well asaccess to justice, public awareness andparticipation are important in implementing MEAs.Consideration should also be given to liabilityissues.

36. Cooperation in trans-boundary matters to addressissues that have a bearing in one country but arecaused by issues beyond one country’s jurisdictionis also important in implementation of MEAs. TheLusaka Agreement on Cooperative Enforcement ofWildlife is a good example of countries comingtogether to enhance enforcement efforts in acooperative manner.

4. Capacity Building Programmes: The Role of International Organizations and

Compliance and Enforcement Networks

37. Depending on the subject or issue, MEAs arenormally negotiated under the framework ofinternational organizations: global, regional andsubregional. There are MEAs that are negotiatedunder the framework of different organizations,including, inter alia, the International MaritimeOrganization conventions, International LabourOrganization conventions, World Health

Organization conventions, United Nationsconventions and United Nations EnvironmentProgramme conventions. At regional levelregional economic commissions of the UnitedNations; regional intergovernmental organizationse.g. in Europe, the European Union; Council ofEurope; in Africa, the Organization of Africa Unitynow African Union; Southern Africa DevelopmentCommunity and similar regional bodies in Asia andLatin America. The role of these organizations is tofacilitate the work of the Convention Secretariatand other bodies that are established by the MEA aswell as to support their work especially as it relatesto capacity building in the form of technicalassistance for implementation related activities ofthe MEA.

38. Several specialized organizations, regional andinternational groups exist to support complianceand enforcement such as the European UnionNetwork for the Implementation and Enforcementof Environmental Law (“IMPEL”), InternationalNetwork for Environmental Compliance andEnforcement (“INECE”), the Commission forEnvironmental Cooperation under the NorthAmerica Free Trade Area (“NAFTA”), INTERPOL,and the World Conservation Union/IUCNSpecialist Group on Environmental Compliance.

39. IMPEL is an informal network of the environmentalauthorities of Norway, and the member states,future member states and candidate countries ofthe European Union. The network is commonlyknown as the IMPEL Network. The EuropeanCommission is also a member of IMPEL and sharesthe chairmanship of meetings. The IMPEL Clusteron Training and Exchange groups projects andactivities on environmental inspection with aparticular focus on training and exchange ofexperience, comparison and evaluation of differentpractices, and development of minimum criteria.

40. The IMPEL Cluster usually meets twice a year todiscuss new project ideas and to review theprogress of projects.

41. IMPEL-TFS is a network of representatives fromenforcement authorities of the member states andsome other European countries dealing withmatters on Transfrontier Shipments of Waste. It isalso a cluster of projects within IMPEL. The IMPEL-TFS network was established in 1992 in order toharmonize the enforcement of EU Regulation259/93 (replacing EC Directive 84/631) onTransfrontier Shipments of Waste with regard to thesupervision and control of waste shipments into,out of and through the European Union.

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42. The aim of the IMPEL Cluster is to:

• Promote compliance with the EU Regulation259/93 through enforcement;

• Carry out joint enforcement projects; and• Promote exchange of knowledge and

experience with the enforcement of the EURegulation 259/93.

43. Every year, the IMPEL-TFS Network has a plenaryconference where the working programme for thiscluster is discussed. The IMPEL Cluster group’sprojects and activities are tailored to the specificneeds of the future member states and thecandidate countries. Through consultants, theIMPEL Cluster undertakes the following activities:

• Conducts studies, specific to theacceding/candidate countries, on enforcementof key directives are elaborated and discussedin workshops, including recommendations forfollow-up;

• Trains the trainers, seminars are held in thePHARE country inspectorates;

• Carries out peer reviews of enforcement bodies(“PEEPs”); and

• Organizes study tours and carries outcomparative analysis of administrative,implementation and enforcement capacity inselected countries.

44. NAFTA has a citizen enforcement submissionprocess under its Environmental Side Agreement.The “citizen submissions on enforcement matters”mechanism enables the public to play an activewhistle-blower role when a government appears tobe failing to enforce its environmental lawseffectively. Members of the public trigger theprocess by submitting claims alleging such a failureon the part of any of the NAFTA partners toNAFTA’s Citizen Enforcement Commission(“CEC”). Following a review of the submission, theCEC may investigate the matter and publish afactual record of its findings, subject to approval bythe CEC.

45. INECE is a network of government and non-government enforcement and compliancepractitioners from over 100 countries. INECE’sgoals are to raise awareness of compliance andenforcement, to develop networks for enforcementcooperation, and to strengthen capacity toimplement and enforce environmentalrequirements. The Principles of EnvironmentalEnforcement were developed under the auspices ofINECE.

46. In 1993, INTERPOL established a working party onenvironmental crime, it now has subgroups onwildlife crime and hazardous waste, whichrecently has been extended to cover other forms ofpollution such as ozone depleting substances.

47. IUCN’s Commission on Environmental Lawformed a Special Group on Enforcement andCompliance to assist IUCN member organizationsand IUCN programs strengthen efforts in this area.

48. To further develop the area of implementation ofenvironmental law as well as compliance with andenforcement of MEAs, it is important for UNEP,under the Montevideo Programme III, to find waysto further develop environmental law in this area.UNEP works with parties of different MEAs toenhance compliance and enforcement of MEAsthrough advisory services and technical assistanceto governments, training programmes, promotingthe UNEP Guidelines for Compliance with andEnforcement of MEAs, undertaking studies of theexisting mechanisms and enforcement problems indifferent sectors of the environment, and throughpreparation and dissemination of information inboth print and electronic format.

5. Compliance and Enforcement Opportunities

49. The UNEP Guidelines for Compliance with andEnforcement of MEAs are in the form of a non-binding legal instrument which was developed bygovernments through an inter-governmentalconsultative process organized under the auspicesof UNEP and adopted by consensus. Theguidelines have two parts: one on Compliancewith and Enforcement of MEAs and the second forNational Enforcement, and InternationalCooperation in Combating Violations of Laws thatare implementing MEAs. The Guidelines, althoughnot specific to any convention, are provided as a“tool box” of proposals, suggestions and potentialmeasures that governments and stakeholders mayconsider taking to improve compliance with andenforcement of MEAs.

50. The Global Guidelines recognize the need fornational enforcement of laws to implement MEAs.Enforcement is essential to secure the benefits ofthese laws, protect the environment, public healthand safety, deter violations, and encourageimproved performance. The Guidelines alsorecognize the need for international cooperationand coordination to facilitate and assistenforcement that arises from the implementation ofMEAs, and to help establish an international levelplaying field.

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III. National Implementation

51. The purpose of these Guidelines is to outlineactions, initiatives and measures for states toconsider in strengthening national enforcementand international cooperation to combat violationsof laws implementing MEAs. The Guidelines canassist governments, their competent authorities,enforcement agencies, Secretariats of MEAs, whereappropriate, and other relevant international andregional organizations in developing tools,mechanisms and techniques in this regard.

52. The scope of the Guidelines is to addressenforcement of national laws and regulationsimplementing MEAs in a broad context, underwhich states, consistent with their obligationsunder such agreements, develop laws andinstitutions that support effective enforcement andpursue actions that deter and respond toenvironmental law violations and crimes.Approaches include the promotion of effectivelaws and regulations for responding appropriatelyto environmental law violations and crimes. TheGuidelines accord significance to the development

of institutional capacities through cooperation andcoordination among international organizations forincreasing the effectiveness of enforcement.

53. As a follow up to the adoption of the Guidelinesand to facilitate the implementation thereof, a DraftManual on Compliance with and Enforcement ofMEAs was prepared. The Guidelines and theManual were promoted and tested in five regionalworkshops in 2003 to 2005. Thereafter, furtherwork on implementation and enforcement of MEAsis being undertaken at national levels with a fewselected countries to ensure that, where necessary,countries develop national enforcementprogrammes in defined areas of the environment toenhance compliance with and enforcement ofenvironmental law.

Prof. Kilaparti Ramakrishna, Deputy Director,Woods Hole Research Center

Sylvia Bankobeza, Legal Officer, Division of PolicyDevelopment and Law, UNEP

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Resources

Internet Materials

CARNEGIE COUNCIL ON ETHICS AND INTERNATIONAL AFFAIRS, ENVIRONMENTAL RIGHTS ENFORCEMENT IN U.S. COURTS, Hari M.Osofsky available at http://www.carnegiecouncil.org/viewMedia.php/prmTemplateID/8/prmID/4462

INTERNATIONAL NETWORK FOR ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT (“INECE”) available athttp://www.inece.org/

UNITED NATIONS ENVIRONMENT PROGRAMME, COMPLIANCE AND ENFORCEMENT available athttp://www.unep.org/DPDL/law/Compliance_enforcement/index.asp

WORLD CONSERVATION UNION (“IUCN”), COMMISSION ON ENVIRONMENTAL LAW, SPECIALIST GROUP ON ENFORCEMENT AND

COMPLIANCE available at http://www.iucn.org/themes/law/cel03A.html

YALE CENTER FOR ENVIRONMENTAL LAW AND POLICY available at http://www.yale.edu/envirocenter/clinic/cities.html

Text Materials

Brad L. Bacon, ENFORCEMENT MECHANISMS IN INTERNATIONAL WILDLIFE AGREEMENTS AND THE UNITED STATES: WADING

THROUGH THE MURK, (12 Geo. Int’l Envtl. L. Rev. 331, Fall 1999).

Cesare P. Romano, THE PEACEFUL SETTLEMENT OF INTERNATIONAL ENVIRONMENTAL DISPUTES: A PRAGMATIC APPROACH,(Boston, Kluwer Law International, 2000).

Dinah Shelton, Alexandre Kiss & Ishibashi Kanami, ECONOMIC GLOBALIZATION AND COMPLIANCE WITH INTERNATIONAL

ENVIRONMENTAL AGREEMENTS, (Kluwer Law International, New York, 2003).

Dinah Shelton, COMMITMENT AND COMPLIANCE: THE ROLE OF NON-BINDING NORMS IN THE INTERNATIONAL LEGAL SYSTEM,(Oxford University Press, 2000).

Durwood Zaelke, Donald Kaniaru & Eva Kruzikova, MAKING LAW WORK ENVIRONMENTAL COMPLIANCE AND SUSTAINABLE

DEVELOPMENT, (Cameroon May, 2005).

Edith Brown Weiss & Harold K. Jacobson (Eds.), ENGAGING COUNTRIES: STRENGTHENING COMPLIANCE WITH INTERNATIONAL

ACCORDS, (MIT Press, 1998).

Edward E. Shea, ENVIRONMENTAL LAW AND COMPLIANCE METHODS, (Oceana Publications, 2002).

Elia V. Pirozzi, COMPLIANCE THROUGH ALLIANCE: REGULATORY REFORM AND THE APPLICATION OF MARKET-BASED INCENTIVES

TO THE UNITED STATES-MEXICO BORDER REGION HAZARDOUS WASTE PROBLEM, (12 J. Envtl. L. & Litig. 337, 1997).

ENFORCEMENT OF AND COMPLIANCE WITH MEAS: THE EXPERIENCES OF CITES, MONTREAL PROTOCOL AND BASEL CONVENTION,(Vols. I & II, UNEP, 1999).

Eugene Skolnikoff, Kal Raustiala & David Victor, THE IMPLEMENTATION AND EFFECTIVENESS OF INTERNATIONAL

ENVIRONMENTAL COMMITMENTS: THEORY AND PRACTICE, (MIT Press, 1998).

James Cameron, Jacob Werksman & Peter Roderick, IMPROVING COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL LAW,(Earthscan Pub, 1996).

Johanna Rinceanu, ENFORCEMENT MECHANISMS IN INTERNATIONAL ENVIRONMENTAL LAW: QUO VADUNT? (15 J. Envtl. L. &Litig. 147, Fall 2000).

49


Joseph F.C. Dimento, PROCESS, NORMS, COMPLIANCE, AND INTERNATIONAL ENVIRONMENTAL LAW, (18 J. Envtl. L. & Litig.251, Fall 2003).

Michael Anderson and Paolo Galizzi, INTERNATIONAL ENVIRONMENTAL LAW IN NATIONAL COURTS, (The British Institute ofInternational and Comparative Law).

Neil Hawke, ENVIRONMENTAL POLICY: IMPLEMENTATION AND ENFORCEMENT, (Ashgate, 2002).

Roger Fisher, IMPROVING COMPLIANCE WITH INTERNATIONAL LAW, (University Press of Virginia, 1980).

Ronald B. Mitchell, INTERNATIONAL ENVIRONMENTAL AGREEMENTS: A SURVEY OF THEIR FEATURES, FORMATION AND EFFECTS,(Annual Reviews, 2003).

Rüdiger Wolfrum, ENFORCING ENVIRONMENTAL STANDARDS: ECONOMIC MECHANISMS AS VIABLE MEANS? (Springer, 1996).

Sevine Ercmann, ENFORCEMENT OF ENVIRONMENTAL LAW IN UNITED STATES AND EUROPEAN LAW: REALITIES AND EXPECTATIONS,(26 Envtl. L. 1213, Winter 1996).

William L. Thomas, Bertram C. Frey & Fern Fleischer Daves, CRAFTING SUPERIOR ENVIRONMENTAL ENFORCEMENT

SOLUTIONS, ENVIRONMENTAL LAW REPORTER, (Environmental Law Institute, 2000).

Xiaoying Ma & Leonard Ortolano, ENVIRONMENTAL REGULATION IN CHINA: INSTITUTIONS, ENFORCEMENT, AND COMPLIANCE,(Rowman & Littlefield, 2000).

Zhenghua Tao & Rüdiger Wolfrum, IMPLEMENTING INTERNATIONAL ENVIRONMENTAL LAW IN GERMANY AND CHINA, (TheHague, Kluwer Law International, 2001).

51

LIABILITY AND COMPENSATION REGIMESRELATED TO ENVIRONMENTAL DAMAGEChapter 5

5. LIABILITY ANDCOMPENSATION REGIMESRELATED TOENVIRONMENTAL DAMAGE

I. Introduction

1. The numerous cases of severe damage to theenvironment that have affected the territory ofcountries all over the world, as well as globalcommons such as the oceans in the last decades,have awakened public consciousness to theserious consequences that human activities canhave on the environment and human health.Unfortunately, examples of incidents resulting inserious environmental damage are numerous.Well-known illustrations include such events as:the 1984 Bhopal gas leak disaster, resulting almostimmediately in more than 1,600 deaths andinjuries to over 200,000 people; the 1986Chernobyl nuclear power plant accident whichcaused radioactive contamination of the naturalenvironment and very substantial damage tohuman health across the borders in Europe andAsia; the 1986 Basel chemical spill into the Rhine,rendering the river biologically dead and foulingmunicipal water systems in downstream countries;the cyanide spill in the year 2000 from the BaiaMare mine in northwestern Romania, resulting intoxic pollution of the Danube and its tributaries indownstream countries, killing hundreds of tons offish in some sectors of the river; and the marine oilspill incidents that have caused massive damage tothe coasts of a number of countries, especially inEurope.

2. While incidents such as these attract widespreadattention, environmental damage occurs regularlyat the regional, state and local level but are notalways covered by the media. Common examplesinclude land contamination as a consequence ofindustrial accidents and the improper handling anddisposal of waste; water contamination as a resultof various causes including discharge of untreatedindustrial effluents; and loss of biodiversity due to awide variety of impacts including habitat loss andintroduction of alien species.

3. These situations and others like them raise thequestion of who should be held responsible forenvironmental harm. Specifically, who should payfor the costs involved in pollution clean-up andrestoration of the damaged environment, and what

should be the standards for acceptable cleanups?These questions are encompassed in the concept ofliability for environmental harm. Legal liability isone way of forcing major polluters to repair thedamage that they have caused, to pay for thoserepairs or to compensate someone for the damagesif the damage cannot be repaired. Given theevolving nature of the topics covered in thischapter, only an international framework isembraced without a corresponding regime ofnational implementation.

4. Liability can be seen as a mechanism forimplementing the “Polluter Pays Principle” (“PPP”).That principle, originally adopted by theOrganization for Economic Cooperation andDevelopment (“OECD”) in 1972, contemplates theinternalization of pollution-control costs. Theprinciple was reaffirmed at the United NationsConference on Environment and Development(“UNCED” or Earth Summit, 1992) in principle 16of the Rio Declaration.

1992 Rio Declaration(Principle 16)

“National authorities should endeavour to promotethe internalization of environmental costs and theuse of economic instruments, taking into account theapproach that the polluter should, in principle, bearthe cost of pollution, with due regard to the publicinterest and without distorting international tradeand investment.”

The “Polluter Pays Principle” has evolved toembrace liability as well as cost internalization. Ineither context, the Principle expresses a policy thatthe polluter should prevent or pay forenvironmental harm. (See the discussion of the“Polluter Pays Principle” in chapter 3 above).


1. Rationale for introducing Liability Regimes forEnvironmental Damage

5. While environmental legislation and internationalinstruments lay down norms and proceduresaimed at preserving the environment, liability is anecessary complement to ensure that personsresponsible for non-compliance resulting inenvironmental damage face the prospect of havingto pay for restoration of the affected environment orcompensating for the damage caused.

6. Liability regimes for environmental harm,therefore, serve different purposes:

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LIABILITY AND COMPENSATION REGIMESRELATED TO ENVIRONMENTAL DAMAGE Chapter 5

• As economic instruments that provideincentives to comply with environmentalobligations and to avoid damage;

• As means of penalizing wrongful conduct; and• They deter environmentally harmful conduct

and prevent environmental damage byencouraging the party responsible for activitiesthat may have an adverse impact on theenvironment to exercise caution to avoid theharm.

7. Most existing environmental liability regimes coveractivities with an inherent risk of causing damage.National systems of liability for environmentaldamage are normally linked to the existingprogrammes of environmental regulation, so if, forexample, an industry fails to comply with theapplicable environmental law, it will also be heldliable for any damage to the environment thatresulted from its non-compliance in addition tofacing an administrative or penal sanction.Compliance with environmental requirements, onthe other hand, may in certain cases preventliability.

2. Liability for Environmental Damage versus

Traditional Liability Systems

8. To serve as an effective vehicle for environmentalprotection, liability regimes must be expandedfrom traditionally recognized forms ofcompensable damage to cover harm to theenvironment itself. While traditional liabilitysystems cover damage to persons and goods andcontamination of privately (or sometimes publicly)owned sites, they usually don’t cover damage tothe environment as such. This is largely aconsequence of the fact that the environment isseen as a “public good” which is freely accessibleto every member of society and for which there areno private ownership interests, thus no one can beheld responsible for damaging it. The challenge indeveloping environmental liability regimes istherefore to help people realize that they are“responsible” for consequences of their acts on theenvironment – a public good that constitutes thebasis of the life-support system for humans and allother living things.

9. There is no commonly accepted definition ofenvironmental damage; different legal regimesadopt different definitions. Neither is there agenerally accepted definition to be found ininternational law. However, a working definitionwas proposed in 1998 by the UNEP WorkingGroup of Experts on Liability and Compensationfor Environmental Damage:

“Environmental damage is a change that has ameasurable adverse impact on the quality of aparticular environment or any of its components,including its use and non-use values, and its ability tosupport and sustain an acceptable quality of life anda viable ecological balance.”

In this sense, environmental damage does notinclude damage to persons or property, althoughsuch damage could be consequential to thedamage caused to the environment.

10. Many countries have recently enacted legislationdealing with some form of liability andcompensation for environmental harm or “naturalresource damage.” It is important to note, however,that a number of countries have chosen not tointroduce separate ad hoc liability regimes forenvironmental harm, instead relying on traditionalliability standards or principles found in civil lawcodes and common law traditions applied in theenvironmental context.

3. State Responsibility and Liability versus

Civil Liability

11. In general, concepts of liability and compensationstem from the principles of tort law in which awrongful act causing injury permits the injuredparty to obtain compensation, usually in the formof money damages, through a private civil actionagainst the person who caused the injury.

12. In this sense, civil “liability” differs from what iscommonly referred to as state “responsibility.” Civilliability operates on the level of national law, andcreates a relationship between the person liableand the person injured by conduct for whichhe/she is held responsible. State responsibility, onthe other hand, operates on the plane of publicinternational law. It creates a relationship notbetween two or more individuals but between twoor more states: the state where the harmfulactivities have taken place and the state or stateswhere the harm has occurred. In other words, inthe case of state responsibility it is the state, ratherthan a private individual, that must provide aremedy for damage that occurs as a consequenceof a breach it committs of an international legalobligation established by treaty or rule ofcustomary international law.

13. The concept of state liability, as it has beendeveloped chiefly by the United NationsInternational Law Commission (“ILC”), usuallyrefers to the responsibility that a state faces for harmoccurring as a consequence of a lawful activity,independently of whether there was any violationof an international norm.

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4. State Responsibility and Liability For

Environmental Harm

a) Transboundary Environmental Damage

14. Environmental damage can affect the territory ofthe state where the activity causing the harmoccurs, the territory of a different state, or the globalcommons (that is, territories that do not fall underthe national jurisdiction of any state such as thehigh seas). For purposes of this discussion,pollution is of concern to the internationalcommunity and thus potentially the object ofinternational law in two cases:

• In the case of transfrontier pollution, defined byOECD as “any intentional or unintentionalpollution whose physical origin is subject to,and situated wholly or in part within the areaunder the national jurisdiction of one state andwhich has effects in the area under the nationaljurisdiction of another state”. Transfrontierpollution can result from the violation ofconventional or customary rules, and thereforeimpair the rights of the state in which the effectsoccur.

• In the case of pollution affecting areas notsubject to the jurisdiction of any state,commonly known as pollution of the “globalcommons”. In this case no state is directlyentitled to react, unless the state responsible forthe pollution harm has violated an obligationerga omnes, that is, an obligation owed to all.

b) State Responsibility and State Liability

15. “State responsibility” may be subdivided into twocategories or forms of responsibility:

• “State responsibility” for internationallywrongful acts, that is for breach of internationalobligations, which can be fault responsibility,arising from violation of due diligencestandards, and strict responsibility that occurseven if the state has not contravened duediligence standards, but has neverthelessbreached an obligation resulting in damage;and

• A much narrower and more recently recognizedconcept of “state liability” for the harmfulconsequences of lawful activities, i.e., fordamage resulting from activities that are notprohibited by international law. An activity thatis not prohibited by international law but whoseconsequences may nonetheless give rise tointernational liability would virtually always bea “hazardous” activity. The International Law

Commission has defined the term “hazardousactivity” as “an activity which involves a risk ofcausing significant harm through its physicalconsequences”. These activities – such asnuclear and chemical plants – are common intoday’s world, and international law is graduallyadapting to this reality. This form of liability issimilar to the common law concept of strictliability for abnormally dangerous activities.

c) State Responsibility for Wrongful Acts

16. State responsibility is a principle by which statesmay be held accountable for inter-state claimsunder international law. Such claims may bebrought before the International Court of Justice(“ICJ”) or other international tribunals.Alternatively, states may use diplomatic means topresent claims and negotiate settlements. Thefoundation of “responsibility” lies in the breach ofobligations under international agreements orcustomary international law. The existence ofprimary obligations of states in the field ofenvironment is therefore the precondition forexistence of State responsibility for environmentaldamage.

17. According to customary international law, statesare not allowed to conduct or permit activitieswithin their territories, or in common spaces, thatadversely affect the rights of others states, includingin the field of environment. This obligation is aconcrete expression of the general principle of“good neighbourliness”. More specifically, twogeneral duties can be identified which may nowhave become customary international law:

• The duty to prevent, reduce and controlpollution and environmental harm; and

• The duty to cooperate in mitigatingenvironmental risks and emergencies, throughnotification, consultation, negotiation, and inappropriate cases, Environmental ImpactAssessment (“EIA”).

18. In addition to these general duties, a number ofglobal and regional treaties establish much moredetailed obligations for states whose breach couldgive rise to state responsibility.

19. While state responsibility is a general concept thatapplies to a wide range of actions such as violationof international humanitarian law, breaches oftrade agreements, or mistreatment of foreignnationals, a limited number of cases exist in theenvironmental field that help define the concept ofstate responsibility for environmental harm.

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20. The landmark Trail Smelter Arbitration involved adispute between Canada and the United Statesover sulphur dioxide (SO2) pollution from aCanadian smelter in the town of Trail, BritishColumbia. The smelter was located in theColumbia River Valley. The Columbia River flowsfrom Canada across the border into the state ofWashington. The SO2 emissions were carrieddown the valley by the prevailing winds, damagingtrees and crops on the American side of the border. The tribunal constituted by the two states to resolvethe dispute declared that:

“...under principles of international law, as well asthe law of the United States, no state has the right touse or permit the use of its territory in such a manneras to cause injury by fumes in or to the territory ofanother or the properties or persons therein, whenthe case is of serious consequence and the injury isestablished by clear and convincing evidence...”

21. In the Lac Lanoux Arbitration, Spain alleged thatFrench plans to construct and operate ahydroelectric facility would adversely affectSpanish rights and interests contrary to the Treaty ofBayonne, 1866, which permitted the joint use ofthe Carol River. Spain contended that France couldproceed with the project only if a prior agreementhad been concluded. The tribunal’s decision,although generally based on interpretation of thisspecific treaty, is worth mentioning because it alsorelies on principles of general applicability. Thetribunal stressed that the exclusive jurisdiction of astate over activities in its own territory finds its limitin the rights of other states. This was a clearrepudiation of the theory of absolute sovereignty,known as the Harmon doctrine. At the same time,the tribunal held that while the two states had anobligation to negotiate in good faith concerning theproject, and France had a duty to respect Spain’srights and take into account its interests, there wasno requirement of a prior agreement.

22. The principle of prevention of transboundary harmwas reaffirmed in general terms by the InternationalCourt of Justice in the Corfu Channel Case, wherethe Court declared that it was the obligation ofevery state “not to allow knowingly its territory tobe used for acts contrary to the rights of otherstates”. The ICJ also recognized in its AdvisoryOpinion on the Legality of the Threat or Use ofNuclear Weapons and in the Gabcikovo Case that“the existence of the general obligation of states toensure that activities within their jurisdiction andcontrol respect the environment of other states or ofareas beyond national control is now part of thecorpus of international law relating to theenvironment.”

23. Principle 21 of the 1972 Stockholm Declarationaffirms that states have, in addition to “...thesovereign right to exploit their own resourcespursuant to their own environmental policies, andthe responsibility to ensure that activities withintheir jurisdiction or control do not cause damage tothe environment of other States or of areas beyondthe limits of national jurisdiction”. Principle 21 wasrepeated in Principle 2 of the 1992 RioDeclaration.


“States have, in accordance with the Charter of theUnited Nations and the principles of internationallaw, the sovereign right to exploit their ownresources pursuant to their own environmentaland developmental policies, and the responsibilityto ensure that activities within their jurisdiction orcontrol do not cause damage to the environmentof other states or of areas beyond the limits ofnational jurisdiction.”

24. Principle 22 of the Stockholm Declaration providesthat states are to “...cooperate to develop furtherthe international law regarding liability andcompensation for the victims of pollution and otherenvironmental damage caused by activities withinthe jurisdiction or control of such States to areasbeyond their jurisdiction.” Twenty years later,Principle 13 of the Rio Declaration called on Statesto develop national law regarding liability andcompensation for victims of pollution and otherenvironmental damage, and that


States shall also cooperate in an expeditious andmore determined manner to develop furtherinternational law regarding liability andcompensation for adverse effects of environmentaldamage caused by activities within their jurisdictionor control to areas beyond their jurisdiction.

25. The principle of prevention of environmental harmto other states or areas beyond national jurisdictionhas been widely reaffirmed in a number ofinstruments in the field of internationalenvironmental law. However, while a number ofinternational agreements contain obligations toprotect the environment, very few expressly refer tostate responsibility or liability. One of the fewexamples is the 1982 Montego Bay Convention onthe Law of the Sea, whose article 235 provides that:“...1. States are responsible for the fulfilment oftheir international obligations concerning theprotection and preservation of the marineenvironment. They shall be liable in accordance

55


with international law...” Another example is the1972 Convention on International Liability forDamage caused by Space Objects, whoseobjective is to establish rules and procedures fordamage caused by space objects and to ensure theprompt payment of full and equitablecompensation to victims of such damage. TheConvention establishes a regime of absoluteliability for the launching state for damage causedby its space object on the surface of the earth or toaircraft flight.

26. The concept of state responsibility only covers thecase of breach of the states’ own obligations owedto another state or states. These obligations extendto the duty to ensure that activities undertaken byprivate parties do not cause harm to the territory ofother states, as indicated by the Trail SmelterArbitration, but do not include the responsibility ofthe private parties themselves. The latter is theobject of civil liability regimes, which are designedto allow private individuals or organizationscausing transboundary environmental harm to beheld responsible for such damage.

27. State responsibility for environmental harm is ahighly complex and rather controversial issue thathas been the subject of ongoing discussionsreflected in the 2001 set of draft articles on“Responsibility of States for InternationallyWrongful Acts”, developed by the UNInternational Law Commission, after decades ofstudy. Although articles refer to state responsibilityin general terms, the articles are applicable to casesof environmental harm.

d) State Liability for Lawful Acts

28. State liability for lawful activities may occur only ifan international instrument specifically provides forliability. However, only very few internationalagreements do so. The Convention on InternationalLiability for Damage caused by Space Objectsprovides for absolute liability without a wrongfulact for damage caused on the surface of the Earthor to aircraft in flight (article II) and for faultresponsibility for other kinds of damage (article III).There are also some bilateral agreements thatestablish liability resulting from lawful acts fordamage suffered by a party and caused by any kindof activity carried out in the territory of the otherparty. An example is the 1964 Agreement betweenFinland and the Union of Soviet Socialist Republics(“USSR”) on Common Waterways, which providesthat a contracting party that causes damage in theterritory of the other contracting party throughactivities carried out in its own territory shall beliable and pay compensation.

29. The International Law Commission has beenworking on the issue of “International Liability forInjurious Consequences arising out of Acts NotProhibited by International Law (Prevention ofTransboundary Damage from HazardousActivities)” as a question of customary internationallaw since 1977. At its forty-fourth session in 1992,however, the Commission decided to continue itswork on this topic in stages. It would first completework on prevention of transboundary harm andsubsequently proceed with remedial measures.Work on prevention was completed by theCommission at its fifty-third session in 2001, whenit adopted a set of 19 articles on prevention oftransboundary harm from hazardous activities. TheCommission later resumed its work on liability in astrict sense, and adopted a set of 8 Draft principleson the allocation of loss in the case oftransboundary harm arising out of hazardousactivities at its fifty-sixth session in 2004.

30. The Draft Articles on Prevention of TransboundaryHarm from Hazardous Activities concern“activities not prohibited by international lawwhich involve a risk of causing significanttransboundary harm through their physicalconsequences”, where “harm” includes harmcaused to persons, property or the environmentand “transboundary harm” means “harm caused inthe territory of or in other places under thejurisdiction or control of a state other than the stateof origin, whether or not the states concerned sharea common border”.

31. According to the draft articles, states should take allappropriate measures “to prevent significanttransboundary harm or at any event to minimizethe risk thereof”, and states concerned “shallcooperate in good faith and, as necessary, seek theassistance of one or more competent internationalorganizations in preventing significanttransboundary harm or at any event in minimizingthe risk thereof”. The provisions of the articles mustbe implemented by states through the adoption ofthe necessary legislative, administrative or othermeasures, including the establishment of suitablemonitoring mechanisms.

32. The articles establish an obligation for the state oforigin to obtain a prior authorization, within thesame state of origin, for:

“(a) Any activity within the scope of the presentarticles carried out in its territory or otherwiseunder its jurisdiction or control;

(b) Any major change in an activity referred to insubparagraph (a);

(c) Any plan to change an activity which may

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transform it into one falling within the scope ofthe present articles”.

Decisions on granting the authorization must bebased on the assessment of the possibletransboundary harm caused by that activity. If suchassessment indicates a risk of causing significanttransboundary harm, the state of origin shallprovide the state likely to be affected with timelynotification of the risk, and shall not take anydecision on authorization of the activity pendingthe receipt, within a period not exceeding sixmonths, of the response from the state likely to beaffected.

33. The articles also provide for an obligation for thestates concerned to “enter into consultations, at therequest of any of them, with a view to achievingacceptable solutions regarding measures to beadopted in order to prevent significanttransboundary harm or at any event to minimizethe risk thereof “and “seek solutions based on anequitable balance of interests. If the consultationsfail to produce an agreed solution, the state oforigin shall nevertheless take into account theinterests of the state likely to be affected in case itdecides to authorize the activity to be pursued,without prejudice to the rights of any state likely tobe affected”. The articles also specify that allrelevant factors and circumstances should be takeninto account for achieving an “equitable balance ofinterests”, and provides a non-exhaustive list ofsuch factors and circumstances.

34. The articles also include norms on exchange ofinformation among the states concerned while theactivity is being carried out, information to thepublic likely to be affected, response toemergencies, settlement of disputes as well as anorm on non-discrimination, according to which“a state shall not discriminate on the basis ofnationality or residence or place where the injurymight occur, in granting to such persons, inaccordance with its legal system, access to judicialor other procedures to seek protection or otherappropriate redress”.

35. The ILC recommended to the General Assemblythe elaboration of a convention on the basis ofthese draft articles. So far, no action has been takenin this direction.

36. The International Law Commission adopted, at its56th session in 2004, the Draft Principles on theAllocation of Loss in the Case of TransboundaryHarm arising out of Hazardous Activities. This is aset of eight principles, meant to apply totransboundary damage caused by activities not

prohibited by international law which involve arisk of causing significant transboundary harmthrough their physical consequences. Damage isdefined, as significant damage caused to persons,property or the environment. In this case, though,the definition also lists different kinds of damagethat fall under such definition. These include:

(i) Loss of life or personal injury;(ii) Loss of, or damage to, property other than the

property held by the person liable inaccordance with these articles;

(iii) Loss of income from an economic interestdirectly deriving from an impairment of the useof property or natural resources orenvironment, taking into account savings andcosts;

(iv) The costs of measures of reinstatement of theproperty, or natural resources or environment,limited to the costs of measures actually taken;

(v) The costs of response measures, including anyloss or damage caused by such measures, tothe extent of the damage that arises out of orresults from the hazardous activity.

37. The draft principles also define “environment” asincluding: “natural resources both abiotic andbiotic, such as air, water, soil, fauna ad flora andthe interaction between the same factors; propertywhich forms part of the cultural heritage; and thecharacteristic aspects of the landscape”.

38. The main purpose of the draft principles is toensure “prompt and adequate compensation tonatural or legal persons, including states that arevictims of transboundary damage, includingdamage to the environment”. Each state mustensure that such compensation is available “forvictims of transboundary damage caused byhazardous activities located within its territory orotherwise under its jurisdiction or control thesemeasures should include the imposition ofliability” (without proof fault). These measuresshould also include the requirement on thepotential polluter “to establish and maintainfinancial security such as insurance, bonds or otherfinancial guarantees to cover claims ofcompensation”. National measures should alsoinclude, when appropriate, the establishment offunds.

39. The principles also address the issue ofminimization of transboundary damage in case ofincident and the establishment of national andinternational remedies for ensuring that the generalprinciple of ensuring compensation is translatedinto action in practice. They also contain aprovision on cooperation among states for the

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development of specific international regimes, atthe global, regional and bilateral level, regardingthe prevention and response measures in respect ofparticular categories of hazardous activities.

40. These principles are very general, and it is not clearwhether they will be translated into a legally-binding instrument, guidelines for negotiators, orother non-legally binding instruments.

41. While state responsibilities for environmentalharm, as well as international liability for nonwrongful acts are often discussed, states haveseldom made recourse to either of them. This isdue to a number of factors of a political andtechnical nature, including, among others:

• The difficulty of ascertaining the full extent ofdamages,

• The fact that often the damage to theenvironment cannot be fully remedied,

• The difficulty of establishing a causal linkbetween the activity that allegedly caused thedamage and the damage suffered due to suchfactors as the geographical distance betweensource and damage, the fact that multiplesources of pollution may exist, and thecumulative effect of different pollution sources,

• The rigidity of traditional forms of internationalresponsibility and of dispute settlementmechanisms and therefore the preference forinformal mechanisms for settling environmentaldisputes,

• The concern about establishing precedents in avery delicate field of international relations.

42. For these reasons, transboundary environmentalcases are often resolved on an inter-personal levelrather than among states, that is through recourseto private rather than public international law. Thisimplies that the polluter and the victim appeardirectly before the competent domestic authorities.The transnational element present in these casescan, however, give rise to problems of jurisdiction,choice of the applicable law, and enforcement ofjudgments, leading states to enter into treatiesregulating the liability of private individuals forenvironmental harm.

e) Civil Liability Regimes for Environmental Damage

43. Civil liability regimes for environmental damagecan be only applied to situations in which (1) thereare one or more identifiable actors (polluters), (2)the damage is concrete and quantifiable, and (3) itis possible to establish a causal link between thedamage and the actions of the identified polluter(s).

As a result, it is much easier to establish personalliability for activities such as industrial accidents,hazardous waste disposal, or water pollution fromdistinct “point-sources” such as end of pipedischarge of pollutants than it is for diffuse sourcesof pollution such as agricultural or urban runoff(“non-point sources”), acid rain or automobilepollution where it is difficult or impossible to linkthe negative environmental effects with theactivities of specific individual actors. Civil liabilityregimes can apply at the national and theinternational levels. International civil liabilityregimes are briefly dealt with in section f below.

f) Types of Civil Liability for Environmental Damage

44. There are basically three types of civil liability forenvironmental damage.

• Fault liability. If liability is based on “fault”(wrong doing) the plaintiff must prove that theperpetrator acted with intent or that he/sheacted negligently or without due care. Fault maybe difficult to establish, especially inenvironmental cases where legal rules may notbe clearly established and evidence may bedifficult to obtain.

• Strict liability. If liability is “strict”, fault need notbe established. No intention to violate a duty ofcare or a norm and no negligence need beshown in a case to prevail. In other words, itdoes not matter whether the perpetratorbehaved correctly or incorrectly; the decisivefactor is that the damage was caused by thedefendant’s conduct. The plaintiff need onlyprove the causal link between the action of thealleged perpetrator and the damage. However,strict liability regimes typically do provide forsome defenses; a person may be exoneratedfrom liability if the damage was caused by, forinstance, an act of God (or natural disaster), anact of war, or by the interference of a third party.Strict liability has become an increasinglycommon form of liability for environmentalharm. The rationale for strict liability is that anactor that profits from potentially harmful orinherently dangerous activities should be liablefor damage that occurred as a result of theharmful activity, an application of the “PolluterPays Principle”. Strict liability shifts the burdenfor risk avoidance to the source of pollution byremoving the need to establish intentional ornegligent behaviour to recover damages.

The distinction between strict liability and faultliability is not always clearcut. For example, somestrict liability systems allow defendants to avoid

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liability if they can demonstrate that they have usedthe best available technology to control pollutionor that they have complied with theirenvironmental permits. These rather generousdefences make it more difficult to establish liabilityand reintroduce elements similar to fault in strictliability system.

• Absolute liability. Absolute liability differs fromstrict liability because it allows no defences tothe perpetrator apart from an act of God. Thistype of liability is rarely imposed, and only forwhat are deemed ultra-hazardous activities,such as nuclear installations.

g) Scope and Threshold of Environmental Damage

45. In addition to traditional types of damage such aspersonal injury or property damage, environmentalcases may result in damage to the environmentitself (so-called pure environmental damage) wheredamage is measured by the costs of remediating orrestoring the impaired environment. Examples ofpure environmental damage are damage tobiodiversity or natural resources as such (e.g.damage to habitats, water, wildlife or species ofplants) and damage in the form of contamination ofsites.

46. An example of regime that recognizes damage tonatural resources as such is the USAComprehensive Environmental Response,Compensation and Liability Act of 1980, whichcovers damage for injury or loss of naturalresources. Other examples are to be found in Italy(Law N. 349/1986, art. 18) that establishes liabilityfor “natural resource damages”. The recent EUDirective 2004/35/EC on Environmental Liability isto date one of the few, if not the only regime, toinclude liability for damage to biodiversity.Contamination of sites can for instance take theform of contamination of soil, surface water orground water, independent from whether or nothuman health or private property is affected.

47. A number of civil liability instruments establish athreshold, beyond which environmental damage isdeemed significant and therefore justifies theimposition of liability, although this level may varysignificantly from one country to another.

48. Liability regimes for environmental damagenormally contain clean-up standards and clean-upobjectives. Clean-up standards are used to evaluatewhether clean-up of a contaminated site isnecessary. The main criterion for this decision isusually whether the contamination leads to a

serious threat to human health or the environment.Clean-up objectives, in contrast, are usually set toidentify the quality of soil and water that isacceptable for the type of economic activity thatwill be carried out at the particular location afterclean up. Clean-up objectives may be establishedbased on future land uses, the type of technologyavailable to remedy the contamination and costconsiderations.

5. Who is Liable?

49. The question of who is legally responsible fordamage is the cornerstone of an effective liabilityregime. In most conventions, the “operator” or“owner”, typically the person who exercisescontrol over an activity, is liable. This is consistentwith the Prevention and Polluter-Pays Principles,because it provides an incentive to the person whocarries out the activity to take preventive steps toeliminate or reduce the risk of damage, and acompensation mechanism to pay for the costs ofenvironmental harm caused by the activities.

50. In some cases it is difficult to determine whichspecific individual or organization causedenvironmental harm. For example, if several wastegenerators dispose of the same chemical in alandfill, it may be impossible to identify theparticular portion of the contamination that can beattributed to a specific contributor to the overallproblem. As a result, some liability regimes holdall of the parties that disposed of a particularcontaminant liable for cleaning up the entire site.This form of liability is referred to as “joint andseveral” liability because each of the polluters canbe held responsible for the cost of the entirecleanup. Joint and several liability gives the plaintiffthe choice to pursue more than one actor andreduces some of the burden of establishingcausation by the specific defendant, therebyaffording the plaintiff a greater likelihood ofobtaining compensation or remediation. Thedefendant(s) held liable for the entire cleanupunder a joint and several liability regime areusually allowed to sue other parties whocontributed to the contamination.

6. Forms of Compensation

51. In most cases of environmental damage, the victimis likely to seek financial reparation to cover thecosts associated with material damage toenvironmental resources. Problems arise becauseenvironmental damage cannot be addressed withthe traditional approach of civil liability, that is, to

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compensate for the economic costs of the lost ordamaged property. Pure environmental damagemay be incapable of calculation in economicterms, such as in the case of loss of fauna and florawhich is not commercially exploited and thereforehas no market value and in the case of damage toecosystems or landscapes, economic value cannotbe assessed with and in traditional approaches.Therefore, the issue arises of how to calculate theeconomic value of purely environmental assets. Afairly widely accepted solution to this problem is tocalculate the damage in the basis of the linkbetween reasonable costs of restoration measures,reinstatement measures or preventative measures.Environmental liability regimes may also foreseecompensation for further damages exceeding thoserelated to the adoption of such restorationmeasures, when both restoration and comparablemeasures, are not technically feasible or notreasonable.

52. The fact that environmental damage is irreparableor unquantifiable should not result in an exemptionfrom liability. Several criteria for the calculation ofdamage have been developed for this purpose andare used in different legal systems. These include,for instance, linking the damage to the market priceof the environmental resource (such as in the TrailSmelter Case), or to the economic value attachedto its use, for example, in terms of travel costsmade by individuals to visit and enjoy anenvironmental resource amenity, of the extramarket value of private property where certainenvironmental amenities are located, of thewillingness of individuals to pay for the enjoymentof environmental goods, such as clean air or wateror the preservation of endangered species (usuallytaken from public opinion surveys). Liabilityregimes normally require that the part ofcompensation paid for restoration or clean up bespent for that purpose and any additionalcompensation should be used for specificenvironmental purposes.

53. Most civil liability regimes require the operator toestablish financial security, usually in the form ofinsurance, to ensure that the risk of liability iscovered. Compulsory insurance is used as a meansto secure that adequate payment of compensationis made and to avoid the bankruptcy of companiesthat have to compensate for severe damages.However, compulsory insurance systems couldreduce the incentive for potential polluters toexercise caution and prevent damage. Anotherproblem is that insurers may limit their coverage tocertain types of damage only, considering theseriousness and unpredictability of the value of

potential harm. To address this problem and theneed for a measure of legal certainty for economicactors, most regimes establish caps on the amountof compensation. These caps usually differ fromsector to sector, in accordance with the level of riskand potential scale of damage.

54. Another mechanism utilized to ensure thecoverage of damage is the creation of victimcompensation funds, which are replenished by theoperators of the specific sector for which the fundis established. These funds are intended to providecompensation for victims and paying for theremedying of damages in cases where, for differentreasons, compensation cannot be provided by theoperator. Such funds are, for example, verycommon in international regimes regulating oilpollution from ships.

7. International Civil Liability

55. When plaintiffs resort to private law to addresstransboundary environmental issues a number ofunique issues are raised including which court inwhich country has jurisdiction over the matter,which country’s laws apply, and where and howcan the judgment of the court be enforced. Stateshave sought to overcome these and other problemsthrough treaties regulating the liability of privateindividuals for environmental harm.

56. Several treaties establish rules on civil liability forenvironmental or related damage, generally withrespect to specific activities, such as nuclearinstallations, oil pollution and hazardous wastes.Recent regional agreements in Europe apply moregenerally to industrial operations (the LuganoConvention on Civil Liability for Damage resultingfrom Activities Dangerous to the Environment,adopted in 1993, but not yet in force).

57. Most of the treaty regimes listed above define theactivities or substances and the harm covered, thecriteria to establish who is liable, the standard ofcare that must be exercised to avoid liability andprovide exceptions from liability. Most agreementsset limitations on the amount of liability andprovisions for enforcement of judgments. Inaddition, many of them include provisions onmandatory insurance or other financial guaranteesand establish funds.

58. In the field of marine pollution, the InternationalConvention on Civil Liability for Oil PollutionDamage (“CLC”) was adopted in 1969 andamended by the Protocols of 1976 and 1992. Itwas adopted under the auspices of the

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International Maritime Organization (“IMO”) inresponse to the “Torrey Canyon” oil spill disaster of1967, as a regime to guarantee the payment ofcompensation by shipowners for oil pollutiondamage. The objective of the Convention is notonly to ensure that adequate compensation isavailable to persons who suffer damage caused byoil pollution, but also to standardize internationalrules and procedures for determining questions ofliability and adequate compensation in such areas.The 1969 CLC places the liability for such damageon the owner of the ship from which the pollutingoil escaped or was discharged. The shipowner isstrictly liable unless the incident is caused by war,a natural phenomenon of exceptional character, amalicious act of a third party, or through thenegligence of the government. It does not apply towarships or other vessels owned or operated by thestate that are used for non-commercial purposes,but does apply to ships owned by a state and usedfor commercial purposes. The 1992 Protocolwidens the scope of the convention to coverpollution damage in the Exclusive Economic Zone(“EEZ”), and extends the scope of the Conventionto cover spills from sea-going vessels constructedor adapted to carry oil in bulk as cargo so that itapplies to both laden and unladen tankers, andincludes spills of bunker oil from such ships. The1992 Protocol also further limits liability to costsincurred for reasonable measures to reinstate theenvironment.

59. The International Convention on the Establishmentof an International Fund for Compensation for OilPollution Damage (“FUND”) was adopted in 1971and amended by the Protocols of 1976 hand 1992.It was adopted under the auspices of IMO toensure that adequate compensation is available topersons suffering damage caused by oil pollutiondischarged from ships in cases wherecompensation under the 1969 CLC wasinadequate or could not be obtained.

60. The 1996 International Convention on Liability andCompensation for Damage in connection with theCarriage of Hazardous and Noxious Substances bySea (“HNS”) was adopted to regulatecompensation for victims of accidents involvingthe transport of hazardous and noxious substances.Damage, as defined in the 1996 HNS includes lossof life, personal injury, loss of or damage toproperty outside the ship, loss or damage bycontamination of the environment, and the costs ofpreventative measures. This Convention excludespollution damage as defined in the 1969 CLC andthe 1971 FUND to avoid overlap with theseconventions. It also does not apply to damagecaused by radioactive material or to warships or

other ships owned by the state used for non-commercial service. Under the 1996 HNS theshipowner is strictly liable for damage and isrequired to have insurance and insurancecertificates. The Convention is not yet in force.

61. The International Convention on Civil Liability forBunker Oil Pollution Damage (“Bunker OilPollution”) was adopted in 2001 and is not yet inforce (as of September 2005). Its objective is toensure that adequate, prompt, and effectivecompensation is paid to persons who sufferdamage caused by oil spills when carried as fuel inships’ bunkers. It applies to damage caused in theterritory of the Contracting Party, including theterritorial sea and the EEZ. Pollution damageincludes loss or damage caused outside the ship bycontamination resulting from the escape ordischarge of bunker oil from the ship, and the costsof preventive measures. The Convention requiresships over 1,000 gross tonnage to maintaininsurance or other financial security to cover theliability of the registered owner for pollutiondamage in an amount equal to the limits of liabilityunder the applicable national or internationallimitation regime. In addition, this Convention alsoallows for direct action against the insurer.

62. The Convention on Civil Liability for Oil PollutionDamage resulting from Exploration for andExploitation of Seabed Mineral Resources (“SeabedMineral Resources”) was adopted in 1977 with theobjective to ensure adequate compensation isavailable to victims of pollution damage fromoffshore activities by means of the adoption ofuniform rules and procedures for determiningquestions of liability and for providing suchcompensation. The operator is liable for damageoriginating from the installation, and liabilityextends for five years after abandonment of theinstallation. The operator will be exonerated ifhe/she can prove that the damage resulted from awar, a natural disaster, an act or omission by thevictim with the intent to cause damage, or thenegligence of the victim. The Convention is not inforce (as of September 2005).

63. In the field of nuclear installations, acomprehensive liability regime was establishedthrough the OECD Convention on Third PartyLiability in the Field of Nuclear Energy (“ParisConvention”), concluded in 1960, theInternational Atomic Energy Agency’s Conventionon Civil Liability for Nuclear Damage (“ViennaConvention”) concluded in 1963 and their JointProtocol relating to the Application of the ViennaConvention and the Paris Convention (“JointProtocol”) was adopted in 1988. The objective of

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the 1960 Paris Convention is to ensure adequateand equitable compensation for persons who sufferdamage caused by “nuclear incidents,” whichcovers cases of gradual radioactive contamination,but not normal or controlled releases of radiation.The 1960 Paris Convention establishes a regime ofabsolute liability for the operator of a nuclearinstallation for damage including loss of life, anddamage or loss to property other than the nuclearinstallation itself. The limitation period to bringforth a claim is ten years, although nations mayshorten this time to a period of not less than twoyears from the date the claimant knew or ought tohave known of the damage and the identity of theoperator liable. The 1960 Paris Convention wassupplemented by the Convention of 31st January1963 Supplementary to the Paris Convention of29th July 1960 (“Brussels SupplementaryConvention”). With the coming into force of the1988 Joint Protocol most features of the 1960 ParisConvention have been harmonized with the 1963Vienna Convention.

64. The latter was adopted under the aegis of the IAEAand provides financial protection against damageresulting from the peaceful uses of nuclear energy.The 1963 Vienna Convention is unique in that itdefines “persons” to include both individuals andstates. Nuclear damage includes the loss of life,personal injury, and damage to property. Under the1963 Vienna Convention, the operator of thenuclear installation is absolutely liable for damagecaused by a nuclear incident, and is required tomaintain insurance. Liability is channeled to theoperator although direct action may also lie withthe insurer. The operator will be exonerated fromliability if the nuclear incident was due to an act ofarmed conflict or war, by the gross negligence ofthe person suffering the damage, or from an act oromission of such person done with the intent tocause damage. The time limit to bring forth a claimof compensation is also limited. The 1988 JointProtocol established a link between the 1963Vienna Convention and the 1960 Paris Conventioncombining them into one expanded liabilityregime. Parties to the Joint Protocol are treated asthough they were parties to both Conventions anda choice of law is provided to determine which ofthe two Conventions should apply to the exclusionof the other in respect of the same incident.

65. The Convention relating to Civil Liability in theField of Maritime Carriage of Nuclear Material(“NUCLEAR Convention”), was adopted in 1971with the purpose of resolving difficulties andconflicts which arise from the simultaneousapplication to nuclear damage of certain maritimeconventions dealing with shipowners’ liability. A

person otherwise liable for damage caused in anuclear incident shall be exonerated for liability ifthe operator of the nuclear installation is also liablefor such damage by virtue of the 1960 ParisConvention or the 1963 Vienna Convention, ornational law of similar scope of protection.

66. The Convention on Supplementary Compensationfor Nuclear Damage (“CSC”) was adopted in 1997with the purpose to provide a second tier ofcompensation for damage resulting from a nuclearincident. The convention is not yet in force (as ofSeptember 2005).

67. The Protocol to amend the Vienna Convention onCivil Liability for Nuclear Damage (“ViennaProtocol”), adopted in 1997, extends the possiblelimit of the operator’s liability and the geographicalscope of the 1963 Vienna Convention to includethe territory of non-contracting states, establishedmaritime zones, and EEZs. It also provides forjurisdiction of coastal states over actions incurringnuclear damage during transport. Furthermore, thisProtocol includes a better definition of nucleardamage that addresses the concept ofenvironmental damage, the costs of reinstatement,preventive measures and any other economic loss.It also extends the period during which claims maybe brought for loss of life and personal injury withrespect to the Vienna Convention.

68. In the field of hazardous wastes, the Basel Protocolon Liability and Compensation for Damageresulting from Transboundary Movements ofHazardous Wastes and their Disposal (“BaselProtocol”) was adopted in 1999 as a Protocol to the1989 Basel Convention on the Control ofTransboundary Movements of Hazardous Wastesand their Disposal (“Basel Convention”). The BaselProtocol establishes a comprehensive regime forassigning liability in the event of an accidentinvolving hazardous wastes as well as adequateand prompt compensation for damage resultingfrom its transboundary movement, includingincidents occurring because of illegal traffic in suchmaterials.

69. Damage, as defined in the Basel Protocol, includestraditional damage (loss of life, personal injury ordamage to property), economic loss, and the costsof reinstatement and preventive measures(environmental damage). Liability is strict and thenotifier or exporter is liable for damage until thedisposer has taken possession of the wastes.However, fault-based liability can be imposed forintentional, reckless or negligent acts or omissions.The notifier is exonerated from liability if he/sheproves that damage was the result of an armed

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conflict or war, a natural phenomenon ofexceptional character, compliance with state law,or the intentional conduct of a third party. In anycase, all transboundary hazardous wastemovements must be covered by insurance.

70. The Basel Protocol applies to the territories underjurisdiction of the state parties, including any land,marine area or airspace within which a stateexercises administrative and regulatoryresponsibility in accordance with international lawin regard to the protection of human health or theenvironment. It applies only to damage suffered inan area under the national jurisdiction of a stateparty arising from an incident as defined, as well asto areas beyond national jurisdiction and non-contracting states of transit, provided those statesafford reciprocal benefits on the basis ofinternational agreements.

71. The Basel Protocol places a cap on financialliability and the limits correspond to the units ofshipment in tonnes (listed in the Annex B). Aworking group is currently in the process of draftingfinancial limits of the liability under the Protocol.There is also a limit on the time period in whichclaims for compensation may be brought forward.Claims must be brought within ten years from thedate of the incident and within five years from thedate the claimant knew or ought reasonably tohave known of the damage. Claims may bebrought in the courts where the damage wassuffered, the incident occurred, or the residence orplace of business of the defendant. The Protocol isnot yet in force (as of September 2005).

72. Another important instrument in the field ofinternational civil liability for environmentaldamage is the Protocol on Civil Liability andCompensation for Damage caused by theTransboundary Effects of Industrial Accidents onTransboundary Waters to the 1992 Convention onthe Protection and Use of TransboundaryWatercourses and International Lakes and to the1992 Convention on the Transboundary Effects ofIndustrial Accidents (“Civil Liability Protocol”)adopted in 2003 but not yet in force (as ofSeptember 2005). The 2003 Civil Liability Protocolprovides individuals affected by the transboundaryimpact of industrial accidents on internationalwatercourses (e.g. fishermen or operators ofdownstream waterworks) a legal claim foradequate and prompt compensation.

73. According to the Civil Liability Protocol,companies will be liable for accidents at industrialinstallations, including tailing dams, as well asduring transport via pipelines. Damage covered bythe Protocol includes physical damage, damage toproperty, loss of income, the cost of reinstatementand response measures will be covered by theProtocol. The Protocol sets financial limits ofliability depending on the risk of the activity, basedon the quantities of the hazardous substances thatare or may be present and their toxicity or the riskthey pose to the environment and requirescompanies to establish financial securities, such asinsurance or other guarantees. It also contains anon-discrimination provision, according to whichvictims of the transboundary effects cannot betreated less favourably than victims from thecountry where the accident has occurred.

74. A general instrument in the field of civil liability forenvironmental harm, although adopted at theregional level, is the 1993 Lugano Convention onCivil Liability for Damage resulting from ActivitiesDangerous to the Environment (“LuganoConvention”), not yet in force (as of September2005). The 1993 Lugano Convention aims atensuring adequate compensation for damageresulting from activities dangerous to theenvironment and also provides for means ofprevention and reinstatement. It only applies todangerous activities, defined as an open-endedcategory that includes but is not limited to:hazardous substances specified in Annex I,genetically modified organisms, micro-organismsand waste. It covers all types of damage includingloss of life, personal injury, damage to property, lossor damage by impairment to the environment, andthe costs of preventive measures (both traditionaldamage and environmental damage) when causedby a dangerous activity.

75. The Convention applies whether the incidentoccurs inside or outside the territory of a party, butdoes not apply to damage arising from carriage, orto nuclear substances. The extension of theterritorial application of the Convention is based onrules of reciprocity. The operator is strictly liable fordamage caused during the period when he/sheexercises control over that activity, and is requiredto maintain insurance. The operator may beexonerated from liability for damage if he/sheproves that the damage was caused by an act ofwar, a natural phenomenon of exceptional

character, an act done with the intent to causedamage by a third party, or resulted fromcompliance with a specific order from a publicauthority. Contributory fault on the part of thevictim may also reduce the amount received incompensation. Actions for compensation must bebrought within three years from the date on whichthe claimant knew or ought reasonably to haveknown of the damage and of the identity of theoperator. In no case shall actions be brought afterthirty years from the date of the incident whichcaused the damage.

Stephen C. McCaffrey, Distinguished Professor andScholar, University of the Pacific, McGeorgeSchool of Law

Maria Cristina Zucca, Assiociate Legal Officer,Division of Policy and Development and Law,UNEP

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Resources

Internet Materials

INTERNATIONAL LAW COMMISSION (“ILC”) available at http://www.un.org/law/ilc/

INTERNATIONAL MARITIME ORGANIZATION (“IMO”) available at http://www.imo.org

UNITED NATIONS ECONOMIC COMMISSION FOR EUROPE (“UNECE”) available at http://www.unece.org/env/civil-liability/welcome.html

UNITED NATIONS TREATY DATABASE available at http://untreaty.un.org/

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Brownlie I., State Responsibility and International Pollution: a Practical Perspective, in Magraw, D., INTERNATIONAL

LAW AND POLLUTION, (University of Pennsylvania Press, Philadelphia, 1991).

Conforti B., Do States really accept Responsibility for Environmental Damage? in Francioni, F., and Scovazzi. T.,INTERNATIONAL RESPONSIBILITY FOR ENVIRONMENTAL HARM, (Graham & Trotman, 1991).

Dupuy P.M., Overview of the Existing Customary Legal Regime regarding International Pollution, in Magraw, D.,INTERNATIONAL LAW AND POLLUTION, (University of Pennsylvania Press, Philadelphia, 1991).

Durwood Zaelke, Donald Kaniaru & Eva Kruzikova, MAKING LAW WORK, ENVIRONMENTAL COMPLIANCE AND SUSTAINABLE

DEVELOPMENT, (Cameroon, May, 2005).

European Union, WHITE PAPER ON ENVIRONMENTAL LIABILITY, (COM(2000) 66 final, 9 February 2000).

Francioni, F. and Scovazzim, T., eds., INTERNATIONAL RESPONSIBILITY FOR ENVIRONMENTAL HARM, (Graham & Trotman,1991).

Kiss A. and Shelton D., INTERNATIONAL ENVIRONMENTAL LAW, (third edition, 2004).

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Kiss A., Present Limits to the Enforcement of State Responsibility for Environmental Damage, in , Francioni, F. andScovazzim, T., eds., INTERNATIONAL RESPONSIBILITY FOR ENVIRONMENTAL HARM, (Graham & Trotman, 1991).

Magraw, D., INTERNATIONAL LAW AND POLLUTION, (University of Pennsylvania Press, Philadelphia, 1991).

McCaffrey S., Private Remedies for Transfrontier Environmental Disturbances, in IUCN ENVIRONMENTAL POLICY & LAW,(Paper No. 8, World Conservation Union “IUCN”, 1975).

McCaffrey S., THE LAW OF INTERNATIONAL WATERCOURSES: NON-NAVIGATIONAL USES, (Oxford University Press, 2001).

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ASPECTS OF ENVIRONMENTAL POLICIES, (May 1972).

Pisillo-Mazzeschi R., Forms of International Responsibility for Environmental Harm, in , Francioni, F., and Scovazzi.T., INTERNATIONAL RESPONSIBILITY FOR ENVIRONMENTAL HARM, (Graham & Trotman, 1991).

Rosas A., ISSUES OF STATE LIABILITY FOR TRANSBOUNDARY ENVIRONMENTAL DAMAGE, (Nordic Journal of International Law,Vol. 60, 1991). Schwartz, M. L., INTERNATIONAL LEGAL PROTECTION FOR VICTIMS OF ENVIRONMENTAL ABUSE, (18 Yale Law J. Int’l Law 355,1993).

Shaw Malcolm N., INTERNATIONAL LAW, (Cambridge, 1997).

Spinedi M., Les Conséquences Juridiques d’un Fait Internationalement Illicite causant un Dommage àl’Environnement in Francioni, F., and Scovazzi. T., INTERNATIONAL RESPONSIBILITY FOR ENVIRONMENTAL HARM, (Graham &Trotman, 1991).

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United Nations Environment Programme (“UNEP”), LIABILITY AND COMPENSATION FOR ENVIRONMENTAL DAMAGE:COMPILATION OF DOCUMENTS, (UNEP, 1998).

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THE GLOBAL ENVIRONMENT FACILITYChapter 6

6. THE GLOBALENVIRONMENT FACILITY

I. Introduction

1. The Global Environment Facility (GEF) is aninternational financing facility that provides grantfunding to developing countries, and countrieswith economies in transition, for projects thatgenerate global environmental benefits within thecontext of sustainable development.

2. Following a three year pilot phase financed bydonors with a capital of $1.1 billion, the GEF wasrestructured and formalized in 1994 with a firstreplenishment of US$2 billion to promote globalenvironmental benefits in four focal areasaddressing biological diversity, climate change,international waters and ozone layer depletion.

3. In 1998, 36 donor states agreed to a secondreplenishment, comprising new pledges totalingUS$2 billion. A third replenishment in 2002,comprising new funding of US$2.2 billion, wasassociated with a broadening of the GEF mandateto include two new focal areas addressing landdegradation and Persistent Organic Pollutants(POPs).

4. The operation and structure of the GEF are definedby the Instrument for the Establishment of theRestructured Global Environment Facility adoptedin 1994 and amended in 2003 subsequent toagreements of the second GEF Assembly held in2002 (GEF, 1994 and 2004).

5. The GEF serves as the financial mechanism of theConvention on Biological Diversity (“CBD”), theUnited Nations Framework Convention on ClimateChange (“UNFCCC”) and the (Stockholm)Convention on Persistent Organic Pollutants(“POPs”). Articles 21 and 39 of the CBD, articles 11and 21 of the UNFCCC and articles 13 and 14 ofthe Stockholm Convention outline theestablishment of a financial mechanism for each ofthe Conventions and the designation of GEF toserve in this capacity. This designation is reflectedin paragraph 6 of the GEF Instrument.

6. The GEF supports actions in eligible countries thatcontribute to achieving the objectives of thesethree Conventions and supports countries to meettheir direct obligations under the Conventions,such as preparation of National Communications.

7. The GEF also serves as a financial mechanism tothe United Nations Convention to combatDesertification in Countries experiencing SeriousDrought and/or Desertification, particularly inAfrica (“UNCCD”) and funds actions that supportthe objectives of the Montreal Protocol onSubstances that deplete the Ozone Layer and theobjectives of the Regional Seas Agreements.

8. In determining its operational programming andpriorities, the GEF responds to guidance providedby the Conferences of the Parties (“COP”) of theConventions to which it relates.

9. In accordance with chapter 33 of Agenda 21,article 20 of the CBD, article 4.3 of the UNFCCC,and article 13 of the Stockholm Convention, thepurpose of the GEF is to provide funding formeasures to achieve global environmental benefitsthat is “new and additional”.

II. GEF Structure

10. The GEF is founded and operates on the basis ofcollaboration and partnership among threeImplementing Agencies: The United NationsDevelopment Programme (“UNDP”), the UnitedNations Environment Programme (“UNEP”) andthe World Bank, responsible for the operation ofthe facility by supporting development andimplementation of projects, providingadministrative support, and providing corporateservices to the GEF. Such services includeimplementation of corporate programmes, supportto the development of operational policies andjoint outreach.

11. Seven other organizations – the GEF ExecutingAgencies operating under a GEF policy ofexpanded opportunities – contribute to thedevelopment and implementation of GEF projectswithin areas of their comparative advantage. Theseagencies are the Food and AgricultureOrganization of the United Nations, theInternational Fund for Agricultural Development,the United Nations Industrial DevelopmentOrganization, and the four regional developmentbanks : the Inter-American Development Bank, theEuropean Bank for Reconstruction andDevelopment, the Asian Development Bank andthe African Development Bank.

12. Governance of the Facility is provided by aCouncil and an Assembly. The GEF Council,comprising 32 members made up of constituencygroupings of GEF participant countries and meetingtwice per year, is responsible for developing,

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THE GLOBAL ENVIRONMENT FACILITY Chapter 6

adopting and evaluating the operational policiesand programmes for GEF-financed activities. Toprovide balanced and equitable representation ofall participating countries, giving due weight to thefunding efforts of all donors, sixteen members arefrom developing countries, two from the countrieswith economies in transition and fourteen fromdeveloped countries.

13. A GEF Assembly of all participating countries hasconvened every four years to review policy andoperations and to consider, for approval byconsensus, amendments to the Instrumentrecommended by the Council.

14. Support to the development of policy andprogrammes, and coordination of theirimplementation, is provided by the GEF Secretariatunder the direction of its Chief Executive Officer,appointed by the Council, who also serves as theChairperson of the GEF. The Secretariat serves andreports to the Council and the Assembly, ensuringthat their decisions are translated into effectiveactions. The Secretariat coordinates preparation ofnew GEF policy papers for review by Council,formulation of the four GEF work programmesprepared annually, monitors implementation of theGEF portfolio, and ensures that the GEF operationalstrategy and policies are followed. Functionallyindependent, the Secretariat is supportedadministratively by the World Bank.

15. The Scientific and Technical Advisory Panel (STAP)of the GEF provides scientific and technicalguidance to the Facility. The GEF Office ofMonitoring and Evaluation is responsible to theGEF Council for monitoring and evaluating, on acontinuing basis, the effectiveness of GEFprogrammes and resource allocations on project,country, portfolio and institutional bases. TheWorld Bank, acting in a fiduciary andadministrative capacity, serves as the Trustee of theGEF Trust Fund.

III. National Participation, Eligibility and Coordination

16. 176 countries are participants in the GEF. Anymember state of the United Nations or of any of itsspecialized agencies may become a participant inthe GEF by depositing with the Secretariat aninstrument of participation. In the case of a statecontributing to the GEF Trust Fund, an instrumentof commitment is deemed to serve as an instrumentof participation.

17. A country is an eligible recipient of GEF grants if itis eligible to borrow from the World Bank (IBRDand/or IDA) or if it is an eligible recipient of UNDPtechnical assistance through its country Indicative

Planning Figure (“IPF”). GEF grants for activitieswithin a focal area addressed by a conventionreferred to in paragraph 6 of the GEF Instrument butoutside the framework of the financial mechanismof the convention, may only be made available toeligible recipient countries that are party to theconvention concerned.

18. Relations of recipient countries within the GEF andpolicy and operations at national level arecoordinated by government designated GEF focalpoints. An Operational Focal Point (“OFP”) isresponsible for operational, project and portfoliorelated, issues and a Political Focal Point isresponsible for policy issues. In some cases thefunctions are combined under a single office orindividual.

IV. GEF Projects

19. Projects may be proposed, designed and executedby a broad range of proponents. These includegovernment agencies and other nationalinstitutions, international organizations, academicand research institutions, private sector entities,and national and international Non GovernmentalOrganizations (“NGOs”). These bodies areresponsible for managing the projects, on theground, and are referred to as project executingagencies.

20. Proponents access GEF funding through one ormore of the GEF Implementing Agencies and GEFExecuting Agencies who provide technical andadministrative support throughout the projectcycle, from conception to final evaluation andclosure. This support ensures that projects addressGEF priorities, are designed and executed cost-effectively, provide maximum impact, and areexecuted in conformance with GEF policy andrequirements.

21. GEF provides support to eligible countries throughthree main categories of projects: (i) full sizeprojects, (ii) medium-sized projects and (iii)“enabling activities”.

22. Full size projects and medium-sized projects (thelatter requiring no more than $1 million GEFfunding) are designed within the framework andaccording to the criteria of fifteen OperationalProgrammes (Section 6). Project Preparation andDevelopment Facility (“PDF”) grants may beprovided to assist in the preparation of projects.

23. PDF Block B grants (“PDF-B”) of up to $350,000are available for activities needed to prepare fullsize projects involving a single country and up to$700,000 for those involving more than one

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country. PDF Block A grants (“PDF-A”) of up to$25,000 may also be provided for initial activitiesneeded to prepare full size projects. PDF-A grantsof up to $50,000 are available to support thepreparation of medium-sized projects.

24. Enabling activities support countries - and buildtheir capacity - to meet the obligations of beingParty to the CBD, the UNFCCC, and the StockholmConvention. Such direct obligations include thepreparation of national reports to the CBD andUNFCCC and a National Implementation Plan forthe management of POPs. Funding of up to$500,000 is provided for enabling activitiesthrough expedited procedures. (Section 7).

25. In addition, a GEF Small Grants Programme(“SGP”), administered by UNDP on behalf of theGEF partners, provides grants of up to $50,000 tocommunity groups to carry out small-sizedprojects.

26. With the exception of enabling activities, GEF onlypart-finances projects, specifically co-financing theincremental cost of measures designed to generateglobal environmental benefits. Co-financing fromother sources is required, and considered to befunding committed for the GEF project as part ofthe initial financing package without which theGEF objectives could not be met. Required co-financing for medium-sized and full size projectsvaries, depending on the nature of the project andfocal area, roughly from 1:1 to 1:7 (GEF : othersources).

27. Co-financing may comprise cash - provided forexample by the recipient governments,organizations involved in the project execution, orother donors - and “in-kind” contributionsdedicated to the project including staff, officespace, services, utilities and equipment. Co-financing expands the resources available tofinance environmental objectives; is a keyindicator of the commitment of the counterparts,beneficiaries, and Implementing and ExecutingAgencies; and helps ensure success and localacceptance of projects by linking them tosustainable development, and thereby maximizesand sustains their impacts.

V. Project Eligibility and Basic Principles of the GEF

28. Projects must support the objectives and conformto the criteria established within one or more of thefifteen Operational Programmes of the GEF. Inaddition projects must contribute to the attainmentof one or more of twenty five Strategic Priorities

(Section 6) and their associated measurableobjectives, defined and adopted for the third phaseof the GEF (GEF-3, 2002-2006).

29. In the case of those focal areas related to a globalenvironmental convention for which GEF serves asa financial mechanism or whose objectives itsupports, projects must support the objective of theconvention, responding to relevant COPprogramme priorities. To ensure that projects arebased on sound science and technology, all fullsize project proposals are subject to anindependent review by an expert drawn from theSTAP Roster.

30. Projects must be “country-driven”, based upon andaddressing national priorities. In demonstration ofthis, it is required that projects are officiallyendorsed by the GEF Operational Focal Point ofthe beneficiary country or countries. Projects mustinvolve all relevant stakeholders in theirdevelopment and implementation, anddemonstrate consultation with and participation ofaffected people.

31. Projects must generate global environmentalbenefits. The GEF covers the difference (or“increment”) between the costs of a projectundertaken with global environmental objectivesin mind, and the costs of an alternative project thatthe country would have imple-mented in theabsence of global environmental concerns. Thisdifference is referred to as the “incremental costs.”With the exception of Enabling Activities, whichare considered fully incremental, project proposalsmust include an analysis of the incremental costs.

32. Projects must demonstrate cost-effectiveness inrealizing their objectives, and provide evidence ofthe sustainability of objectives beyond the life ofthe project and the potential for replication ofmethodology in other areas or countries. Projectsmust include a rigorous monitoring & evaluationplan, including objectively verifiable indicators ofthe attainment of project objectives and impacts.Letters of commitment of co-financing are requiredprior to final approval.

33. Initial screening of project ideas for theirconformance with GEF criteria and eligibility isprovided by the Implementing Agencies. Onceproject proposals have been finalized, they arereviewed by the GEF Secretariat prior to approvalby the Council or CEO (Section VII).

Table 1. Operational Programmes of the GEFBiodiversityOP1 Arid and Semi-Arid Zone EcosystemsOP2 Coastal, Marine and Freshwater EcosystemsOP3 Forest EcosystemsOP4 Mountain EcosystemsOP13 Conservation and Sustainable Use of Biological Diversity Important to AgricultureClimate ChangeOP5 Removal of Barriers to Energy Efficiency and Energy ConservationOP6 Promoting the Adoption of Renewable Energy by removing Barriers and reducing

Implementation Costs OP7 Reducing the Long-Term Costs of Low Greenhouse Gas Emitting Energy TechnologiesOP11 Promoting Environmentally Sustainable TransportInternational WatersOP8 Waterbody-based Operational ProgrammeOP9 Integrated Land and Water Multiple Focal Area Operational ProgrammeOP10 Contaminant-based Operational ProgrammeMultifocal AreaOP12 Integrated Ecosystem ManagementPersistent Organic PollutantsOP14 Draft Operational Programme on Persistent Organic PollutantsLand DegradationOP15 Operational Programme on Sustainable Land Management

Table 2. Strategic Priorities in GEF-3

Capacity BuildingCB-1 Enabling Activities (climate change and biodiversity)CB-2 Crosscutting Capacity BuildingBiodiversityBD-1 Catalyzing the Sustainability of Protected AreasBD-2 Mainstreaming Biodiversity in Production Landscapes and SectorsBD-3 Capacity Building for the Implementation of the Cartagena Protocol on BiosafetyBD-4 Generation and Dissemination of Best Practices for Addressing Current and Emerging

Biodiversity Issues

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VI. GEF Programming Framework: Focal Areas,Operational Programmes and Strategic

Priorities of the GEF

1. Focal Areas

34. The Instrument for the Establishment of theRestructured Global Environment Facility adoptedin 1994, established the GEF as “a mechanism forinternational cooperation for the purpose ofproviding new and additional grant andconcessional funding to meet the agreedincremental costs of measures to achieve agreedglobal environmental benefits” in four focal areas:climate change, biological diversity, internationalwaters and ozone layer depletion. Followingdecision at the second GEF Assembly held in

Beijing in October 2002, the GEF Instrument wasamended to include two new focal areas in landdegradation and persistent organic pollutants.

2. Operational Programmes

35. In October 1995 the GEF Council adopted anoperational strategy to guide the preparation ofcountry-driven initiatives in the GEF focal areas(GEF, 1996). Consistent with outlines provided inthe strategy, ten operational programmes weresubsequently developed that define eligibility andspecific objectives to be addressed in each of thefour existing focal areas (GEF, 1997). Subsequentlyfive additional operational programmes have beendefined to address emerging priorities and newfocal areas. The fifteen operational programmes ofthe GEF are shown in table 1.

3. Strategic Priorities in the Current Phase of theGEF

36. For the operation of its third phase (GEF-3) theGEF adopted 25 Strategic Priorities (“SPs”), summarized in table 2. These reflect the major

themes or approaches under which resourceswould be programmed within each of the focalareas.

Climate ChangeCC-1 Transformation of Markets for High Volume Products and ProcessesCC-2 Increased Access to Local Sources of Financing for Renewable Energy and Energy

EfficiencyCC-3 Power Sector Policy Frameworks Supportive of Renewable Energy and Energy EfficiencyCC-4 Productive Uses of Renewable Energy CC-5 Global Market Aggregation and National Innovation for Emerging TechnologiesCC-6 Modal Shifts in Urban Transport and Clean Vehicle/Fuel TechnologiesCC-7 Short Term MeasuresCC-A Strategic Priority on Adaptation to Climate ChangeInternational WatersIW-1 Catalyze Financial Resources for Implementation of Agreed ActionsIW-2 Expand Global Coverage with Capacity Building Foundational WorkIW-3 Undertake Innovative Demonstrations for Reducing Contaminants and Addressing Water

ScarcityOzone DepletionOZ-1 Methyl Bromide ReductionPersistent Organic Pollutants POP-1 Targeted Capacity BuildingPOP-2 Implementation of Policy/Regulatory Reforms and InvestmentsPOP-3 Demonstration of Innovative and Cost-Effective TechnologiesLand Degradation OP on Sustainable Land ManagementSLM-1 Targeted Capacity BuildingSLM-2 Implementation of Innovative and Indigenous Sustainable Land Management PracticesIntegrated Approach to Ecosystem ManagementEM-1 Integrated Approach to Ecosystem ManagementSmall Grants ProgrammeSGP-1 Small Grants Programme(Source: GEF Business Plan FY04-06, GEF/C.21/9)

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VII. The GEF Project Cycle

37. Project proponents seeking GEF support maysubmit their project idea – typically as a shortconcept note outlining the rationale and objectivesof the initiative – to one or other of the GEFImplementing or Executing Agencies. The GEFAgency will review the idea for conformity with theGEF mandate and its fit within the GEFprogramming framework as well as its fit with itsown areas of comparative advantage. In somecases an Agency may recommend that theproponent seek the support of another GEF Agency.For those that conform, the GEF Agency will workwith the proponent to prepare a detailed proposalin a standard format that varies depending on thescale of project conceived, and whether projectdevelopment funding is required. Standardtemplates for project proposals are available on theGEF website (www.thegef.org).

38. Once finalized, proposals are submitted by theGEF Agency for review by the GEF Secretariat.Simultaneously, proposals are circulated to theImplementing Agencies, the Scientific andTechnical Advisory Panel (“STAP”), the Secretariatof the relevant Convention and, as relevant, to anyof the GEF Executing Agencies. Taking into accountany comments of these bodies, the GEF Secretariatmay require revision of the proposal or willrecommend it for approval.

39. Submission of full size projects for approvalconforms to a scheduled calendar for compilationof four Work Programmes each year. Two WorkProgrammes are prepared for review by Council attheir meetings held in spring and fall (normallyMay and November), and two are prepared forreview inter-sessionally (normally January andJuly). A similar calendar applies to the intake to theGEF “pipeline” of new concepts for full sizeprojects, for which normally four intakes arescheduled each year. As a measure to expedite theprocessing of smaller projects, proposals formedium-sized projects, enabling activities thatrequire no more than $500,000 GEF funding andproject development grants, may be submitted atany time. Enabling activities requiring higher levelsof funding are processed in the same manner as fullsize projects.

40. Proposals for full size projects are approved by theGEF Council within the four GEF WorkProgrammes, prepared and reviewed each year. Asanother measure to expedite the processing ofsmaller projects, the Council has delegatedauthority to the CEO to approve medium-sizedprojects, expedited enabling activities and PDF-Bgrants for preparation of full size projects. The CEOalso approves concepts for full size projects to theGEF pipeline. Authority has been delegated to theGEF Implementing Agencies to approve smallerpreparatory grants (PDF-A) to assist in the

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preparation of medium-sized projects or for initialactivities needed to prepare full size projects. PDF-A grants sought through the GEF ExecutingAgencies are approved by the CEO.

41. Once a grant has been approved by the GEF anddetailed implementation arrangements have beenput in place, the GEF Agency, in accordance withits internal rules and procedures, approves theproject for implementation in the form of a legallybinding document between itself and the projectexecuting agency. The first tranche of project fundsis then transferred and subsequent payments followthe satisfactory preparation and submission to theGEF Agency of progress and financial reports.

1. Full Size Projects

42. To enable the planning of resource allocationsacross the focal areas and over coming years, allfull size projects must, as an initial step, beapproved to the GEF pipeline. Application forpipeline entry and approval of a PDF-B grant maybe made concurrently. One of the principle outputsof activities carried out with PDF-B funding is thefully elaborated proposal for a full size project.Once a full size project is approved by Council,detailed implementation arrangements arecompleted during a process of appraisal. A finalproject document is submitted for endorsement bythe CEO (to ensure it conforms with the proposalapproved by Council), following which the projectis approved officially by the Implementing Agencyand the first tranche of funds is transferred to theproject executing agency. During implementation,the GEF Agency receives and reviews mandatoryprogress and financial reports, provides technicaland administrative guidance and monitors theprogress of the project including preparation of anannual Project Implementation Report. Anindependent evaluation of the project is carried outat the mid-term and on completion of the project.

2. Medium-Sized Projects

43. Following approval of a medium-sized project bythe CEO, implementation arrangements arefinalized and the project is approved by the GEFAgency. The GEF Agency provides similar supportduring implementation to that provided to a fullsize project and commissions an independentevaluation of the project on completion.

3. Enabling Activities

44. Enabling Activities are initiated through directrequest to a GEF Agency from a designatedgovernment authority. Global “umbrella” projects

have been approved by the GEF Council to fundnational enabling activities for the preparation ofNational Biosafety Frameworks, second nationalcommunications to the UNFCCC and thirdnational communications to the CBD. Nationalproposals for these purposes are prepared withsupport of the GEF Implementing Agency andapproved directly by the Implementing Agencywho provides support to the national agencythroughout project implementation.

4. Small Grant Projects

45. Small Grants projects under the SGP are processedand approved by a national committee and supportduring implementation is provided by a nationaloffice established by UNDP.

VIII. The GEF Project Portfolio Scope and Division ofResponsibility among the GEF Agencies

46. Between 1991 and 2004, the GEF provided $5billion in grants, matched by more than $16 billionin co-financing from other partners, for some 1600projects (as well as thousands of small grantsprojects) in developing countries and countrieswith economies in transition.

47. Of these projects, some 43% are implemented bythe World Bank, 39% by UNDP, 11% by UNEPand the remainder through partnership amongmore than one agency. By focal area, 35% of theresources have been allocated to biodiversity, 35%to climate change, 14% to international waters andthe remaining 16% allocated among the otherfocal areas, including those recently established,and to projects with multiple focal area objectives.

48. The Implementing Agencies and GEF ExecutingAgencies acting under the policy of expandedopportunities tend to specialize in the type ofprojects in which they have a comparativeadvantage. For example, larger investment projectstend to be undertaken by the World Bank and theRegional Development Banks. Projects supportedby UNDP are implemented within the context of itscountry programmes of technical assistance. TheUNIDO and FAO support GEF projects related totheir expertise in the management of POPs forindustrial and agricultural purposes respectively.The International Fund for AgriculturalDevelopment (“IFAD”) supports projects related tothe GEF Operational Programme on sustainableland management. Building on its science base androle in stimulating international cooperation onenvironmental issues, many UNEP projects focuson the development of tools and methods forenvironmental management, on environmental

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assessment, or promote international cooperationfor the management of shared resources.

IX. UNEP as an Implementing Agency of the Global Environment Facility

49. As an Implementing Agency of the GlobalEnvironment Facility, UNEP performs three majorfunctions:

(1) UNEP provides support and the Secretariat to the Scientific and Technical Advisory Panel (“STAP”) of the GEF.

(2) UNEP provides corporate support to the GEF, including contribution to the development of GEF policy and programmes.

(3) UNEP assists a wide range of project proponents to develop and implement eligible, country driven projects that within the six GEF focal areas, in general, address one or more of the following broad objectives, to:

• Promote regional and multi-countrycooperation to achieve global environmentalbenefits (management of transboundaryecosystems, transboundary diagnostic analysisand cooperative mechanisms/action);

• Advance knowledge for environmentaldecision-making through scientific andtechnical analysis, including environmentalassessments and targeted research;

• Develop and demonstrate technologies,methodologies and policy tools for improvedenvironmental management;

• Build capacity to prepare and implementenvironmental strategies, action plans andreports and environmental management andpolicy instruments to implement MultilateralEnvironmental Agreements (MEAs).

50. The areas of focus of UNEP/GEF projects havebeen defined by the Action Plan on UNEP-GEFComplementarity (UNEP/GC.20/44), adopted bythe UNEP Governing Council and the GEF Councilin 1999. They relate to UNEP’s mandate and areasof comparative advantage and build upon itsregular programme of work includingenvironmental assessment, development andimplementation of environmental policy and itsprogrammes related to chemicals and energy. Theadoption of the Action Plan, together with theestablishment, in 1996, of UNEP’s GEFCoordination Office (now the UNEP Division ofGEF Coordination), have been responsible for thestrengthening and growth of the UNEP/GEF workprogramme of projects in recent years.

51. As of July 2005, UNEP is implementing a GEF workprogramme financed at US$ 1 billion, includingjust under US$ 500 million in GEF grant financing.The work programme includes 75 full size projects,72 medium-sized projects, and 321 enablingactivities (including those under a globalprogramme to develop National BiosafetyFrameworks in 130 countries) supportingimmediate national obligations to the Conventions.Sixty-one projects are under preparation withapproved project preparation and developmentgrants. The work programme includes projects inall the GEF Focal Areas and OperationalProgrammes. 153 countries participate inUNEP/GEF projects, in Africa, Asia, the Pacific,Eastern Europe, Central Asia, Latin America and theCaribbean.

X. The Scientific and Technical Advisory Panel of the GEF

52. The Scientific and Technical Advisory Panel(“STAP”) is an advisory body that providesindependent strategic scientific advice to theFacility on relevant science and technology issues.UNEP provides STAP’s Secretariat and operates asthe liaison between the Facility and the STAP.

53. The panel is composed of fifteen internationallyrecognized experts from both developing anddeveloped countries with expertise relevant to theGEF focal areas. The panel is chaired by aChairperson, who functions as the spokespersonfor the panel and reports to the GEF Council. STAPhas a mandate to:

• Provide objective, strategic scientific andtechnical advise on GEF policies, operationalstrategies, and programmes;

• Conduct selective reviews of projects incertain circumstances and at specific points inthe project cycle;

• Promote targeted research policy and projectsand review targeted research projects, and

• Maintain a roster of experts consisting ofinternationally recognized specialists in thescientific and technical areas relevant to GEFoperations.

54. Meetings of the panel are convened twice a year inspring and fall. Workshops are convened andbackground reviews commissioned to formulateadvise on specific issues. All full size projects aresubject to mandatory review by an expert selectedfrom the Roster.

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XI. UNEP/GEF Projects

55. The majority of UNEP/GEF projects involve actionsin and collaboration with several countries, ratherthan being limited to a site-specific intervention ina single country. In many cases the rationale for amulti-country approach is to enable regionalcollaboration for the management of a sharedresource. In other cases the rationale is to developand demonstrate improved management practicesunder a range of national and ecologicalconditions, share experiences and promotereplication of methodology. UNEP is alsoimplementing several single-country projects inaddition to supporting national enabling activities.

56. This section provides some examples of UNEP/GEFprojects with specific focus on projects that supportthe development and implementation ofenvironmental policy and legal frameworks orframeworks of action, and that supportimplementation of the multilateral environmentalagreements for which GEF serves as a financialmechanism.

1. Regional Environmental Frameworks andProgrammes of Action

57. Building on UNEP’s mandate and experience inpromoting international cooperation on globalenvironmental issues and supporting developmentof environmental legal frameworks, manyUNEP/GEF projects seek to develop regionalframeworks for cooperation on environmentalprotection and management.

a) Africa

The Environment Initiative of the New Partnership for

Africa’s Development

58. Between 2001 and 2003, UNEP supported Africancountries to prepare an Action Plan for theEnvironment Initiative of the New Partnership forAfrica’s Development [NEPAD]. The Action Planwas adopted by the African Union at the secondordinary session of the Assembly of the AfricanUnion held in Maputo, Mozambique on 12 July2003. Delivered through a GEF medium-sizedproject, an important achievement of this initiativehas been to raise the issue of environmentalprotection to the agenda of the African Heads ofState and Government.

59. The Action Plan identifies priority needs for actionson major environmental challenges includingclimate change, land degradation, and the

degradation of the marine environment andfreshwater resources, and addresses the linksbetween environment, economic development,health and poverty.

60. In all the thematic areas it addresses, the need forcapacity building was identified as crucial foreffective implementation of the Action Plan.Accordingly the Action Plan is accompanied by acomprehensive strategy for capacity building,whose objectives the GEF has committed tosupport. As an initial step, a UNEP/GEF medium-sized project was approved in June 2004 tostrengthen the capacity of Africa’s RegionalEconomic Commissions (REC) to implement theNEPAD Environment Initiative and support thepreparation of sub-regional environmental actionplans.

61. NEPAD Environment Initiative provides aframework for a coherent programming of actionaimed at improving environmental management,implementing the global environmentalconventions and promoting sustainabledevelopment in Africa, including the followingUNEP/GEF projects:

i) Addressing Land-based Activities in the WesternIndian Ocean (“WIO-LaB”): A UNEP/GEFproject commenced in 2004 to support ninecountries in coordinated action to promoteenvironmentally sustainable management anddevelopment of the West Indian Ocean region.Addressing land-based activities that harmmarine, coastal and inland waters, the projectwill demonstrate less environmentallydamaging development options and strengthenhuman and institutional capacity to ensuresustainable, less polluting development. Theproject will strengthen the regional legal basisfor preventing land-based sources of pollutionby improving policy and legislative mechanismsfor effective controls on land-based activities,assisting development of national plans ofaction and developing a regional protocol.

ii) Integrated Ecosystem Management (“IEM”) ofNatural Resources in the Transboundary Areasof Niger Republic and Nigeria: This full sizeproject will commence implementation in 2005aiming in its first phase to strengthen legal andinstitutional frameworks for collaborationbetween the two countries and to carry out pilotdemonstrations of integrated ecosystemmanagement. The project will create conditionsfor sustainable IEM to improve livelihoods inareas covered by the Maiduguri Agreementbetween Niger and Nigeria. Among other

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actions, the project will develop an integratedlegal and institutional framework forcollaboration and coordinated financing fromthe Niger-Nigeria Joint Commission forCooperation to community-based organizationsand will develop and implement subregional,catchment and community level ecosystemmanagement plans.

iii) Managing Hydrogeological Risk in theIullemeden Aquifer System: A medium-sizedproject being implemented in Mali, Niger andNigeria, is supporting these countries to developand implement policy to jointly manage the vasttransboundary Iullemeden aquifer systemcurrently threatened by reduced recharge,salinization and pollution. The project aims toestablish a joint, tri-national, mechanism andcooperative framework to: (a) identifytransboundary threats, (b) formulate joint riskmitigation and sharing policy; and (c)implement a joint policy through a legal andinstitutional cooperative framework.

b) Central Asia

Support to the Implementation of the Central AsiaRegional Environment Action Plan

62. A medium-sized project was approved in May2005 to help remove the main barriers hinderingimplementation of the Central Asia RegionalEnvironment Action Plan (REAP) and sustainableenvironmental management at regional level inCentral Asia. Among these barriers is lack of asufficient and adequate regional institutional,political, regulatory and financial mechanism forsustainable environmental management. Theproject aims to strengthen the political andinstitutional basis for regional cooperation insustainable development and land management;strengthen information support to decision-makingrelated to sustainable development andenvironmental management; engage civil societyin strengthening regional cooperation; andcatalyze implementation of the REAP.

c) Asia

Reversing Environmental Degradation Trends in theSouth China Sea and Gulf of Thailand

63. This significant UNEP/GEF project, represents thefirst attempt to develop regionally coordinatedprogrammes of action for the South China Sea and

Gulf of Thailand designed to reverse environmentaldegradation particularly in the area of coastalhabitat degradation and loss, halt land-basedpollution and address the issue of fisheries over-exploitation. The overall goals of the project are: tocreate an environment at the regional level, inwhich collaboration and partnership in addressingenvironmental problems of the South China Sea,between all stakeholders, and at all levels isfostered and encouraged; and to enhance thecapacity of the participating governments tointegrate environmental considerations intonational development planning. Major outcomeswill include a Strategic Action Programme, agreedat an intergovernmental level, including a targetedand costed programme of action addressing thepriority issues and concerns, and framework forregional cooperation in the management of theenvironment of the South China Sea. Outcomeswill also include national and regionalmanagement plans for specific habitats and issuesand a regional management plan for maintenanceof transboundary fish stocks in the Gulf ofThailand.

d) Latin America

64. UNEP is implementing several projects in LatinAmerica that promote integrated land and waterresource management of transboundary riverbasins. These include the Pantanal and UpperParaguay River Basin and the Sao Francisco Basinin Brazil, the Bermejo River Basin (Argentina,Bolivia), and the San Juan River Basin (Costa Rica,Nicaragua). Several new projects are underdevelopment including international projects forthe Amazon Basin and the Plata Basin, describedbelow.

(i) Formulation of a Water Resources ManagementFramework for the Plata River Basin

65. A major full size project under development in2005 will strengthen the efforts of the governmentsof Argentina, Bolivia, Brazil, Paraguay andUruguay to implement their shared vision forenvironmentally and socially sustainableeconomic development of the Plata Basin,specifically in the areas of the protection andintegrated management of its water resources andadaptation to climatic change and variability. Theproject will harmonize and prepare a Programmeof Strategic Actions for the sustainablemanagement of the Plata Basin. It will includecomponents to: strengthen institutionalarrangements for integrated management of the

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Basin; predict the impacts of climatic variabilityand change on its hydrology; promote a commonvision for the Basin and formulate a Basin-leveltransboundary diagnostic analysis and; elaborate aFramework Strategic Action Programme for theintegrated management of the water resources ofthe Plata Basin.

(ii) Supporting Stakeholder Participation inInternational Environmental Legal Processes

66. Several UNEP/GEF projects support efforts tostrengthen a broad participation of stakeholders,including developing countries, civil society, andindigenous peoples, in international environmentallegal processes.

(iii) Fostering Active and Effective Civil SocietyParticipation in Preparations for Implementation

of the Stockholm Convention

67. Successful implementation of the StockholmConvention will require enhanced publicawareness about persistent organic pollutants andincreased participation, involvement and interestof civil society in the Convention and relatedactivities. UNEP is implementing a medium-sizedproject that will encourage and enable NGOs inapproximately 40 developing countries andcountries with economies in transition to engage inactivities within their countries that will provideconcrete and immediate contributions to nationalefforts to prepare for implementation of theStockholm Convention. To support this, eightregional NGOs facilitation hubs are beingdeveloped from established NGOs.

(iv) The Global Biodiversity Forum : MultistakeholderSupport for the Implementation of the Convention on

Biological Diversity (“CBD”)

68. An ongoing UNEP/GEF medium-sized projectrepresents the third phase of UNEP/GEF support tothe Global Biodiversity Forum (“GBF”). The GBF isa multi-stakeholder forum that, giving particularattention to stakeholders from developingcountries, economies in transition and local andindigenous communities, supports implementationof the CBD with specific objectives to:

• Provide an informal mechanism where CBDParties and major stakeholder groups canexplore and strengthen analysis and debatecentral issues around CBD implementation;

• Expand the CBD constituency to fosterbroader involvement and commitment ofindependent, public and business sector

partners in actively supporting and assessingCBD implementation, and;

• Catalyze new cooperative partnerships andinitiatives among CBD Parties, among differentsectors, and stakeholder groups at global,regional and national levels.

(v) The Indigenous Peoples’ Network for Change

69. The Indigenous Peoples’ Network for Changeproject is an initiative of indigenous peoples aimedat advancing the conservation and sustainable useof biodiversity by strengthening the capacity andknowledge of indigenous peoples to participate inprocesses surrounding the CBD and other relevantinternational instruments. Submitted in June 2005for GEF funding, the project will implement anintegrated range of activities including capacitybuilding and information sharing at nationalregional levels, facilitating participation ininternational processes, and establishing strategicpartnerships to strengthen the role of indigenouspeoples in conservation and sustainablemanagement of biodiversity.

(vi) Providing Environmental Information for PolicyMaking

70. Building on UNEP’s mandate and experience inenvironmental assessment, UNEP is implementingseveral global environmental assessment projectsdesigned to generate or synthesize information onthe state of the global environment as a basis forexploring policy options and sound decisionmaking. These include the Global InternationalWaters Assessment (“GIWA”) and the MillenniumEcosystem Assessment (“MA”).

71. Conducted between June 2001 and March 2005,the Millennium Ecosystem Assessment (“MA”) hasbeen designed and implemented to meet the needsof decision makers and the public for scientificinformation concerning the consequences ofecosystem change for human well-being andoptions for responding to those changes. The MAhas focused on ecosystem services (the benefitspeople obtain from ecosystems), how changes inecosystem services have affected humanwellbeing, how ecosystem changes may affectpeople in future decades, and response optionsthat might be adopted at local, national, or globalscales to improve ecosystem management andthereby contribute to human well-being andpoverty alleviation.

72. The Assessment identifies priorities for action,provides tools for planning and management and

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foresight concerning the consequences of decisionsaffecting ecosystems. It helps identify responseoptions to achieve human development andsustainability goals, and has helped buildindividual and institutional capacity to undertakeintegrated ecosystem assessments and to act ontheir findings. It is anticipated that such integratedassessments will be repeated every five – ten yearsand that ecosystem assessments will be regularlyconducted at national or sub-national scales.

(vii) Building National Capacity to implement GlobalEnvironmental Agreements

73. Through 321 national enabling activities, UNEP issupporting 153 countries to meet their directnational obligations to the global environmentalConventions for which GEF serves as a financialmechanism.

a) Biodiversity

74. GEF Biodiversity Enabling Activities assist countriesto meet their obligations under the CBD. Thisincludes development of National BiodiversityStrategies and Action Plans (“NBSAP”) includingthe activities necessary to produce quality strategicplanning documents (for example, inventories,information gathering, stakeholder consultationsand policy, legal and regulatory frameworkanalysis). It includes also participation in aClearing-House Mechanism (“CHM”) forinformation exchange and support for NationalReports to the CBD. Following completion of aninitial set of activities, additional funding isavailable to allow parties to the convention toassess capacity needs for priority areas ofbiodiversity, undertake CHM activities and preparetheir Second National Reports to the CBD.Additional support, for the preparation of ThirdNational Reports, is being made available in 2005.Currently supporting 29 countries with biodiversityenabling activities, UNEP is expected to support upto 50 countries to prepare their third nationalcommunications.

b) Biosafety – the Safe Use of Biotechnology

75. UNEP is implementing a global programme ofsupport to build the capacity of eligible countries toimplement the Cartagena Protocol on Biosafety,involving support to the development andimplementation of National Biosafety Frameworks(“NBF”) and participation in the Protocol’sBiosafety Clearing House (“BCH”).

76. Development of National Biosafety Frameworks:implementation of the Cartagena Protocol requiresthe establishment of national legal and regulatorystructures. A global UNEP-GEF project onDevelopment of national biosafety frameworks isassisting 130 GEF eligible countries that havesigned the Protocol to implement it by preparingNational Biosafety Frameworks and by promotingregional and sub-regional cooperation throughregional and sub-regional workshops.

77. Implementation of National Biosafety Frameworks:UNEP is implementing eight demonstrationprojects in Bulgaria, Cameroon, China, Cuba,Kenya, Namibia, Poland and Uganda, designed tosupport these countries to implement their NBF.Based on experience gained through these projects,a number of countries which have finalized theirNBF under the global project have now submittedproposals for GEF funding to supportimplementation of the NBF.

78. Building Capacity for Effective Participation in theBiosafety Clearing House of the CartagenaProtocol: another global project is supportingdevelopment of core human resources andestablishment of appropriate BCH infrastructure toenable 139 eligible countries to fully participateand benefit from the BCH, as established underarticle 20 of the Biosafety Protocol. The projectfacilitates the ability of the eligible countries toaccess scientific, technical, environmental andlegal information on Living Modified Organisms(“LMO”), and thereby assists with implementationof the Protocol in ensuring an adequate level ofprotection for biodiversity in the field of safetransfer, handling and use of LMOs.

c) Climate Change

79. GEF Climate Change Enabling Activities have beenmade available to eligible countries to support,initially, the preparation of First NationalCommunications to the UNFCCC. Subsequent totheir completion, financing for interim measures forcapacity building in priority areas is available tosupport activities between the Initial and theSecond Communications. These interim activities,including an assessment of national technologyneeds for implementation of the Convention, areintended to complement activities of the first phase,while at the same time forming a basis for initiationof the Second National Communication. Tosupport preparation of Second NationalCommunications, the GEF Council approved inNovember 2003, an umbrella project toaccommodate support to up to 130 eligible

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countries. The programme is jointly administeredby the Implementing Agencies, and envisagesUNEP supporting an indicative thirty countries.Applications for grants are processed and approveddirectly by the Implementing Agencies, and UNEPhas approved the first of these in 2005.

d) Climate Change National Adaptation Programme of

Action

80. The GEF administers a special fund established bythe parties to the UNFCCC to support LeastDeveloped Countries (“LDC”) prepare NationalAdaptation Programmes of Action (“NAPA”) toaddress urgent and immediate needs and concernsrelated to adaptation to the adverse effects ofclimate change. Since 2002, UNEP has assistedthirteen LDCs prepare NAPA proposals, the first ofwhich was approved early in 2003.

e) Persistent Organic Pollutants

81. Enabling Activities for the Stockholm Conventionon Persistent Organic Pollutants (POPs) areintended to create sustainable national capacity tofulfill national obligations for compliance with theStockholm Convention, particularly thepreparation of a National Implementation Plan forPOPs. This will enable countries to: (1) prepare theground for implementation of the Convention; (2)satisfy reporting and other obligations to theConvention and; (3) strengthen national capacity tomanage POPs and chemicals generally. UNEP issupporting 54 countries prepare their national

implementation plans.

f) National Capacity Needs Self-Assessment for GlobalEnvironmental Management

82. Enabling Activities for National Capacity NeedsSelf-Assessment for Global EnvironmentalManagement (NCSA) are intended to identifycountry level priorities and needs for capacitybuilding to address global environmental issues, inparticular biological diversity, climate change andland degradation, and the synergies among them,as well as linkages with wider concerns ofenvironmental management and sustainabledevelopment, with the aim of catalyzing domesticand/or externally assisted action to meet thoseneeds in a coordinated and planned manner. UNEPis supporting 35 countries to prepare an NCSA.

XII. Current Developments within the GEF

83. During 2005, donors are negotiating a fourthreplenishment of the GEF Trust Fund. A thirdOverall Performance Study (“OPS-3”) of the GEFconcluded in June 2005 will inform thereplenishment negotiations that are scheduled toconclude in November 2005.

84. Findings and recommendations of OPS-3 are alsoshaping the development of a programmingframework for the fourth phase of the GEF (“GEF-4”), including the identification of strategicobjectives for each of the focal areas (Table 3).

85. Emphasis in GEF-4 will be placed on promotingintegrated approaches to the management ofnatural resources, exploiting interlinkages betweenfocal area objectives and synergies among theglobal environmental conventions to which GEFserves as a financial mechanism. Emphasis willalso be placed on strengthening the link betweenenvironment and development, through projectsthat more clearly contribute to sustainabledevelopment while at the same time generatingglobal environmental benefits.

86. Since 2003, the GEF Council has been developinga framework for the allocation of resources tocountries based on their potential to generate

global environmental benefits and theirperformance. The Resource Allocation Frameworkwill be operational during GEF-4, applied initiallyto resources in the biodiversity and climate changefocal areas.

Neil Pratt, Division Global Environment FacilityCoordination, UNEP

Maria Cristina Zucca, Associate Legal Officer,Division of Policy Development and Law, UNEP

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Table 3. Proposed Strategic Objectives for the Fourth Phase of the GEF (GEF-4)

Biodiversity- Catalyzing sustainability of protected area systems at national levels- Mainstreaming biodiversity conservation within production landscapes and sectors- Capacity building for the implementation of the Cartagena Protocol on Biosafety- Generation and dissemination of good practices for emerging issues in biodiversityClimate ChangeRelated to operational programme (OP) #5, Energy Efficiency

Related to OP 6, Renewable Energy

Related to OP 7, Reducing long-term Cost of Low GHG-emitting energy technologies

Related to OP 11, Sustainable Transport - Facilitating sustainable mobility in urban areas

International Waters- Catalyzing on the ground implementation of management action programmes, regional/national reforms, and stress

reduction measures agreed through TDA-SAP or equivalent processes for transboundary water systems.- Expanding global coverage of foundational capacity building to new transboundary systems with a focus on key

programme gaps and integrated, cross focal area approaches as well as undertaking targeted learning with the portfolio.- Undertaking innovative demonstrations with emphasis on addressing water scarcity/conflicting water uses through IWRM,

reducing Persistent Toxic Substances (“PTS”) beyond POPs and protecting valuable groundwater supplies, includingthrough public-private partnerships and innovative financing.

POPs- NIP Programme and dissemination of best practices- Strengthening capacity for NIP implementation- Partnering in investments for NIP implementation- 4 Partnering in demonstration of feasible, innovative technologies & practices for POPs reductionOzone- Addressing HCFCs, residual use of MeBr, and Institutional Strengthening and other non-investment activitiesLand Degradation- Promoting a country partnership framework approach for removing barriers to Sustainable Land Management (“SLM”) and

foster system-wide change- Upscale successful SLM practices for the control and prevention of desertification & deforestation through new operations- Generating & disseminating knowledge addressing current and emerging issues in SLM- Promote cross focal area synergies and integrated approaches to natural resources management

- Promoting energy-efficient appliances and equipment- Promoting industrial energy efficiency- Promoting building energy efficiency- Promoting re-powering of large power plants (only if replenishment is high)

- Promoting grid electricity from renewable sources- Promoting renewable energy for rural energy services

- Supporting deployment of new, low-GHG-emitting energy technologieS

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Resources

GEF Contacts and further Information

UNEP/GEFDirector of the Division of GEF CoordinationUnited Nations Environment Programme,P.O. Box 30552, Nairobi 00100, KenyaTel: +254-20-624165; Fax: +254-20-624041 www.unep.org/gefEmail : [email protected]

Internet Materials

GEF SECRETARIAT available at www.gefweb.org and atwww.gefonline.org

GEF IMPLEMENTING AGENCIES available at www.undp.org/gef, www.unep.org/gef and www.worldbank.org/gef

SCIENTIFIC AND TECHNICAL ADVISORY PANEL OF THE GEF (“STAP”) available at http://stapgef.unep.org

TEMPLATES FOR GEF PROJECT PROPOSALS available athttp://thegef.org/Operational_Policies/Eligibility_Criteria/templates.html

UNEP/GEF PROJECTS REFERRED TO IN THIS TEXT:

CHINA SEA AND GULF OF THAILAND available at www.unepscs.org

LAND-BASED ACTIVITIES IN THE WESTERN INDIAN OCEAN available at www.unep.org/GEF/Projects/WIOLAB

THE NAIROBI CONVENTION available at www.unep.org/easternafrica/

UNEP/GEF PROJECT ADDRESSING available at www.unep.org/GEF/Projects/WIOLAB

UNEP/GEF PROJECT DEVELOPMENT OF NATIONAL BIOSAFETY FRAMEWORKS AND OTHER BIOSAFETY PROJECTS available atwww.unep.ch/biosafety

UNEP/GEF PROJECT GLOBAL INTERNATIONAL WATERS ASSESSMENT (GIWA) available at www.giwa.net

UNEP/GEF PROJECT MILLENNIUM ECOSYSTEM ASSESSMENT available at www.millenniumassessment.org

UNEP/GEF PROJECT REVERSING ENVIRONMENTAL DEGRADATION TRENDS IN THE SOUTH available at www.unepscs.org

Text Materials

ACTION PLAN FOR THE ENVIRONMENT INITIATIVE OF THE NEW PARTNERSHIP FOR AFRICA’S DEVELOPMENT, (UNEP, 2004).

ACTION PLAN ON UNEP-GEF COMPLEMENTARITY, (UNEP Governing Council Document, UNEP/GC.20/44, UNEP,1999).

ANNUAL REPORT 2004, (GEF, 2005).

GEF BUSINESS PLAN FY04-06, (GEF Council Document GEF/C.21/9, GEF, 2003).

GEF OPERATIONAL PROGRAMMES, (GEF, 1997, Global Environment Facility, Washington, DC, ppxxx).INSTRUMENT FOR THE ESTABLISHMENT OF THE RESTRUCTURED GLOBAL ENVIRONMENT FACILITY, (GEF, 1994 and amended andrepublished, 2004)

OPERATIONAL STRATEGY OF THE GLOBAL ENVIRONMENT FACILITY, (GEF, 1996, Global Environmental Facility, Washington,DC).

UNITED NATIONS CONFERENCE ON ENVIRONMENT & DEVELOPMENT, AGENDA 21. (United Nations, 1992, United Nations,New York).

7. INFORMATION, PUBLICPARTICIPATION, ANDACCESS TO JUSTICE INENVIRONMENTAL MATTERS

I. Introduction

1. Information, public participation, and access tojustice in environmental matters are environmentaltools set forth in Principle 10 of the 1992 RioDeclaration, (“Principle 10”). More generally,freedom of information, democratic participationin governance, and judicial guarantees areinternationally protected human rights containedin constitutions, global and regional treaties. Thethree legal procedures aim to ensure that everypotentially affected person can participate inenvironmental management at the relevant level.They thus provide transparency in governance andhence serve to strengthen legislation andinstitutional regimes for environmentalmanagement.

2. This chapter examines the scope of “Access toInformation,” “Public Participation in DecisionMaking,” and “Access to Justice in EnvironmentalMatters” and the understanding of these terms.This chapter will also examine the status of relatednational legal and institutional regimes andpathways for strengthening them, including, asappropriate, legal and institutional capacities andhuman resource capabilities. The objectives are toimprove the quality of decision-making inenvironmental matters through increasedtransparency and to promote the equitableresolution of environmental disputes.

3. Principle 10 of the Rio Declaration refers to therights of public participation, access to informationand access to justice in environmental matters.

1992 Rio Declaration (Principle 10)

“Environmental issues are best handled withparticipation of all concerned citizens, at the relevantlevel. At the national level, each individual shall haveappropriate access to information concerning theenvironment that is held by public authorities,including information on hazardous materials andactivities in their communities, and the opportunity toparticipate in decision-making processes. States shallfacilitate and encourage public awareness andparticipation by making information widely available.Effective access to judicial and administrativeproceedings, including redress and remedy, shall beprovided.”

4. The term “access to information” in Principle 10refers to both the availability of information relatedto the environment (including that on hazardousmaterials and activities in communities) as well asthe mechanisms by which public authoritiesprovide environmental information. Chapter 23 ofAgenda 21, on Strengthening the Role of MajorGroups, provides that individuals, groups andorganizations should have access to informationrelevant to the environment and development,held by national authorities, including informationon products and activities that have or are likely tohave a significant impact on the environment, andinformation on environmental matters.

5. The term “Public Participation” means theavailability of opportunities for individuals, groupsand organizations to provide input in the making ofdecisions which have, or are likely to have, animpact on the environment, including in theenactment of laws, the enforcement of nationallaws, policies, and guidelines, and EnvironmentalImpact Assessment procedures. The Preamble tochapter 23 of Agenda 21 calls public participation“one of the fundamental prerequisites for theachievement of sustainable development.” Amonghuman rights instruments, article 25 of the 1966United Nations International Covenant on Civiland Political Rights enshrines the right toparticipate “in the conduct of public affairs, directlyor through freely chosen representatives” andguarantees related rights, such as freedom ofexpression in article 19, freedom of assembly inarticle 21, and freedom of association in article 22.

6. “Access to Justice” refers to effective judicial andadministrative remedies and procedures availableto a person (natural or legal) who is aggrieved orlikely to be aggrieved by environmental harm. Theterm includes not only the procedural right ofappearing before an appropriate body but also thesubstantive right of redress for harm done. TheUnited Nations Convention on the Law of the Seaspecifies the duty of the state parties to ensure thatrecourse is available for prompt and adequatecompensation or other relief in respect of damagecaused by pollution of the marine environment bynatural or juridical persons under their jurisdiction.

7. In practice, the three elements work together anddepend on each other to be effective. Access toenvironmental information is a prerequisite topublic participation in decision-making and tomonitoring governmental and private sectoractivities. It also can assist enterprises in planningfor and utilizing the best available techniques andtechnology. In turn, effective access to justice inenvironmental matters requires an informed

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citizenry that can bring legal actions beforeinformed institutions.

8. The main areas to be examined in determining theeffectiveness of access to environmentalinformation, public participation in decision-making and access to justice in environmentalmatters include:

• The way in which countries handleenvironmental issues at different levels and theextent to which concerned citizens participatein handling them at the relevant level;

• The extent to which governmental authorities atall levels acquire and hold relevant informationconcerning the environment and threats to it,including information about private sectoractivities;

• The extent to which each individual at thenational level can have appropriate access toinformation concerning the environment that isheld by public authorities, includinginformation on hazardous materials andactivities in his or her community;

• The extent to which the individuals, groups andorganizations have opportunity to participateeffectively in decision-making processes;

• The efforts made by states to facilitate andencourage public awareness and participationby making information available regardinglegislation, regulations, activities, policies andprogrammes; and

• The extent to which the public inenvironmental matters is ensured of access toeffective judicial and administrativeproceedings, including redress and remedy.

9. Principle 10 is not the only instrument thatunderlines the importance of access to information,public participation in decision-making and accessto justice in environmental matters. (See chapter 3,above). Other texts emphasize them as well,including Agenda 21, the United NationsMillennium Development Goals, and the 2002World Summit on Sustainable Development(WSSD) Plan of Implementation. In addition, theJohannesburg Principles of the Global JudgesSymposium 2002 and the decisions of the UNEPGoverning Council (especially decisions 20/4,21/23, 21/24, 22/17), the Programme for theDevelopment and Periodic Review ofEnvironmental Law for the First Decade of theTwenty-First Century (“Montevideo ProgrammeIII”) and the Malmo Declaration, all express theneed to strengthen capacity and related nationalenvironmental laws by enhancing the applicationof Principle 10. Treaties such as the United NationsFramework Convention on Climate Change (article

4.1(i)) and the Convention on Biological Diversity(articles 13, 14, 17), the United NationsConvention to Combat Desertification in Countriesexperiencing Serious Drought and/orDesertification, particularly in Africa (articles 10,13, 14, 19, and 25), and the Rotterdam Conventionon the Prior Informed Consent Procedure forCertain Hazardous Chemicals and Pesticides inInternational Trade (article 15) all refer toinformation, participation and access to justice. A1998 regional agreement, the (Aarhus) Conventionon Access to Information, Public Participation inDecision-Making and Access to Justice inEnvironmental Matters is entirely devoted to thethree procedures. These treaties are discussed inmore detail below.


1. Global Principles

10. In August 2002, members of the Judiciary fromaround the world agreed on a capacity buildingprogramme in environmental law, based inparticular on the importance of sensitizing thepublic and the Judiciary on environmental issues.Building knowledge based on acquisition anddissemination of information, public participationin decision-making and access to justice are keyelements of the programme. The JohannesburgPrinciples on the Role of Law and SustainableDevelopment which were adopted at the GlobalJudges Symposium thus included the followingstatements:

“(...)We express our conviction that the Judiciary, wellinformed of the rapidly expanding boundaries ofenvironmental law and aware of its role andresponsibilities in promoting the implementation,development and enforcement of laws, regulationsand international agreements relating tosustainable development, plays a critical role inthe enhancement of the public interest in a healthyand secure environment,

We recognize the importance of ensuring thatenvironmental law and law in the field ofsustainable development feature prominently inacademic curricula, legal studies and training at alllevels, in particular among judges and othersengaged in the judicial process,

We express our conviction that the deficiency inthe knowledge, relevant skills and information inregard to environmental law is one of the principalcauses that contribute to the lack of effectiveimplementation, development and enforcement ofenvironmental law,

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We are strongly of the view that there is an urgentneed to strengthen the capacity of judges,prosecutors, legislators and all persons who play acritical role at national level in the process ofimplementation, development and enforcementof environmental law, including multilateralenvironmental agreements (MEAs), especiallythrough the judicial process,(...)

For the realisation of these principles we proposethat the programme of work should include thefollowing:

(a) The improvement of the capacity of thoseinvolved in the process of promoting,implementing, developing and enforcingenvironmental law, such as judges,prosecutors, legislators and others, to carryout their functions on a well informed basis,equipped with the necessary skills,information and material,

(b) The improvement in the level of publicparticipation in environmental decision-making, access to justice for the settlement ofenvironmental disputes and the defense andenforcement of environmental rights, andpublic access to relevant information,

(c) The strengthening of sub-regional, regional andglobal collaboration for the mutual benefit ofall peoples of the world and exchange ofinformation among national Judiciaries with aview to benefiting from each other’sknowledge, experience and expertise,

(d) The strengthening of environmental laweducation in schools and universities,including research and analysis as essential torealizing sustainable development,

(e) The achievement of sustained improvement incompliance with and enforcement anddevelopment of environmental law,

(f) The strengthening of the capacity oforganizations and initiatives, including themedia, which seek to enable the public tofully engage on a well-informed basis, infocusing attention on issues relating toenvironmental protection and sustainabledevelopment,

(g) An Ad Hoc Committee of Judges consisting ofJudges representing geographical regions,legal systems and international courts andtribunals and headed by the Chief Justice ofSouth Africa, should keep under review andpublicise the emerging environmentaljurisprudence and provide informationthereon,

(h) UNEP and its partner agencies, including civilsociety organizations should provide supportto the Ad Hoc Committee of Judges inaccomplishing its task,

(i) Governments of the developed countries andthe donor community, including internationalfinancial institutions and foundations, shouldgive priority to financing the implementation

of the above principles and the programme ofwork,

(j) The Executive Director of UNEP shouldcontinue to provide leadership within theframework of the Montevideo Programme III,to the development and implementation of theprogramme designed to improve theimplementation, development andenforcement of environmental law including,within the applicable law of liability andcompensation for environmental harm undermultilateral environmental agreements andnational law, military activities and theenvironment, and the legal aspects of thenexus between poverty and environmentaldegradation, ...”

11. UNEP is taking steps in its programme of work toenhance the application of Principle 10 as itimplements UNEP GC Decision 22/17, whichrequested the Executive Director to intensify effortsto provide policy and advisory services in key areasof capacity and institution building, including:

• Access to information regarding legislation,regulations, activities, policies andprogrammes;

• Public participation in sustainable developmentpolicy formulation and implementation,including the promotion of public participationat the local and national levels in policy andprogramme development and implementation;and

• Cooperation with other organizations, tosupport efforts by governments who requestassistance in the application of Principle 10 atthe local and national levels.

The decision also requests the Executive Directorto assess the possibility of promoting, at thenational and international levels, the application ofPrinciple 10 and to determine, inter alia, if there isvalue in initiating an intergovernmental process forthe preparation of global guidelines on theapplication of Principle 10.

12. The mandate of Principle 10 is not entirely new.The concepts of access to information, publicparticipation in decision-making and access tojustice in environmental matters can be found in alarge number of international legal instrumentsadopted before the 1992 Rio Conference, some ofthem dating back to the 1972 StockholmConference on the Human Environment andearlier. The many regional environmentalconventions and an even higher number of non-binding instruments are evidence of the existenceof the rights contained in Principle 10 prior to1992, and can be read to demonstrate thedevelopment of these concepts over the past

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several decades. Relevant examples are given ineach of the following parts, which are divided intoglobal conventions, regional conventions, andnon-binding international legal instruments.

2. Global Conventions

13. A number of international legal instruments havereflected Principle 10 mandate on access toinformation, public participation in decision-making and access to justice. In global conventionsthere is a trend towards including increasinglydetailed and explicit provisions. In general, thetreaties contain more references to publicawareness and access to information than to theother aspects of Principle 10, but publicparticipation in decision-making is also reflected ina large number of instruments and frequentlyappears with provisions on public awareness andinformation. Compared to the first two areas, thethird element of Principle 10 (i.e., access to judicialand administrative proceedings) is reflected to alesser extent in environmental treaties but iswidespread in human rights instruments. It can befound, basically, in two types of MultilateralEnvironmental Agreements (“MEAs”): (1)international conventions (or protocols) which setup specific liability regimes for damage resultingfrom certain environmentally dangerous activities,and (2) conventions which provide for access tojustice in a comprehensive manner. The latter typeof conventions would include, inter alia,obligations to ensure that individuals have thepossibility to bring to court violators ofenvironmental laws and regulations.

14. Examples of multilateral environmentalinstruments containing Principle 10 elementsinclude the 1972 Convention concerning theProtection of the World Cultural and NaturalHeritage (article 27), the 1992 United NationsFramework Convention on Climate Change (article6), the 1994 Convention to Combat Desertification(article 3, 5, and 8), the 1999 Basel Liability andCompensation Protocol (article 8), and the 2001Stockholm Convention on Persistent OrganicPollutants (article 10). The most elaborate relevantconvention, the (Aarhus) Convention on Access toInformation, Public Participation in Decision-Making and Access to Justice in EnvironmentalMatters (“1998 Aarhus Convention”), wasnegotiated under the framework of the UnitedNations Economic Commission for Europe(“UNECE”), and is the most comprehensivemultilateral (regional) environmental agreement inproviding concrete obligations and informationrelating to Principle 10 because it covers all threeelements in detail.

15. The first important examples of provisions thatillustrate Principle 10 are those contained in theConvention concerning the Protection of the WorldCultural and Natural Heritage. This convention,adopted in 1972, recognizes in article 27 theimportance of public awareness and informationfor the protection of the world’s cultural and naturalheritage as defined in article 1 and 2. It obliges itssignatories to “endeavour by all appropriatemeans, and in particular by educational andinformation programmes, to strengthenappreciation and respect by their peoples of thecultural and natural heritage” and to “undertake tokeep the public broadly informed of the dangersthreatening this heritage and of the activitiescarried on in pursuance of this Convention.” TheConvention concerning the Protection of the WorldCultural and Natural Heritage can thus be seen asan early example of the concern for publicawareness later adopted in Principle 10.

16. The 1992 United Nations Framework Conventionon Climate Change (“1992 Climate ChangeConvention”) contains provisions on publicawareness and information as well as on publicparticipation. It thereby reflects the first and thesecond elements of Principle 10. Article 6(a) of the1992 Climate Change Convention addresses thedevelopment and implementation of educationaland public awareness programmes, and explicitlyrequires the facilitation of public access toinformation on climate change and its effects(article 6(a)(i),(ii)). The article refers back to thesignatories’ main commitments, which alsounderscore publication of national and regionalprogrammes for climate change mitigation (article4(b)). Further, the state parties are obliged topromote and facilitate public participation inaddressing climate change and its effects anddeveloping adequate responses “in accordancewith national laws and regulations, and within theirrespective capacities.” (article 6(a)(iii))

17. The 1992 Convention on Biological Diversity(“1992 Biodiversity Convention”) reflects theprovisions contained in Principle 10 in bothexplicit and implicit ways. Environmentalinformation and improving public awareness arereflected in articles 12 and 13. Article 13(a)requires signatories to “promote and encourageunderstanding of the importance of … theconservation of biological diversity...” As a meansto promote public awareness regarding biologicaldiversity, the convention names, in particular,media and educational programmes as well asprogrammes for scientific research and training(articles 12 and 13(b)). Public participation isimplicitly reflected in article 8(j) of the 1992

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Biodiversity Convention which aims at strongerinvolvement of indigenous and local communitiesas part of its “in-situ conservation” objectives.According to this provision, knowledge,innovations and practices of indigenous and localcommunities relevant for biodiversity conservationis to be preserved, and states shall “promote theirwider application with the approval andinvolvement of the holders of such knowledge,innovations and practices.” Article 10(e) adds thatcooperation between governmental authorities andits private sector is encouraged with regard to thesustainable use of biological resources. Finally, the1992 Biodiversity Convention requires “as far aspossible and as appropriate,” EnvironmentalImpact Assessment (“EIA”) procedures to beintroduced for proposed projects that are likely tohave significant adverse effects on biologicaldiversity (article 14). Such national EIA procedureswould reasonably have to involve a certain degreeof public participation.

18. The general requirement to involve the public in theprocess of preparing an EIA can be discerned fromseveral existing legal instruments on EIAs, whichdemonstrate the participatory character of the EIAprocedure. The earliest example is found in theUNEP Goals and Principles of EnvironmentalImpact Assessment of 17 June 1987. According toPrinciple 17 of the UNEP Goals the public, expertsand interested groups should be allowedappropriate opportunity to comment on the EIA.This non-binding principle was later beenincorporated into a legally binding Convention ofthe UNECE Region, the 1991 Convention onEnvironmental Impact Assessment in aTransboundary Context (“1991 Espoo EIAConvention”), as well in a large number of nationallaws on EIAs in all regimes.

19. The United Nations Convention to CombatDesertification is probably the most ambitiousexample of a participatory, or “bottom up,”approach. It recognizes the fact that in traditionaldevelopment planning, programmes have oftenfailed because they were designed with too littlereference to the perceptions and capacities of localcommunities. The 1994 DesertificationConvention aims at integrating local communitieswith their valuable experience and specialunderstanding of their own environment. To thisend, article 3(a) of the Convention obliges parties to“ensure that decisions on the design andimplementation of programmes to combatdesertification...are taken with the participation ofpopulations and local communities...” Actionprogrammes are to originate at the local level andbe based on genuine local participation (articles 9and 10). The participation is to be ensured at all

stages, i.e. “...policy, planning, decision-making,implementation and review of the actionprogrammes...” (article 10(2)(f)). (See also articles 6and 8 of the Regional Implementation Annex forAfrica (Annex I)). Affected Parties shall promoteawareness and facilitate the participation of localpopulations, particularly women and youth, withthe support of Non-Governmental Organizations(“NGOs”) (article 5(d)). Similar provisions of astrong participatory character apply to capacity-building, education and training (article19).

20. The 1997 Kyoto Protocol to the 1992 ClimateChange Convention includes a provision on publicawareness and access to information relevant toclimate change in article 10(e), which requiresparties to “promote at the international level … thedevelopment and implementation of educationand training programmes, … and facilitate at thenational level public awareness of, and publicaccess to information on, climate change...” Thisprovision is somewhat less comprehensive than theequivalent found in the 1992 Climate ChangeConvention itself: it is stricter since the obligation inarticle 10(e) of the 1997 Kyoto Protocol is notlimited by a reference to the “respective capacities”of parties.

21. The 1997 Joint Convention on the Safety of SpentFuel Management and on the Safety of RadioactiveWaste Management deals with the siting ofproposed facilities in article 6 and 13. Therequirements include the obligation of each partyto take steps to make relevant safety informationavailable to the public.

22. The objective of the 1998 Rotterdam Conventionon the Prior Informed Consent Procedure forCertain Hazardous Chemicals and Pesticides inInternational Trade (“1998 Rotterdam Convention)is “...to protect human health and the environmentfrom potential harm...” with regard to certainhazardous chemicals and pesticides ininternational trade (article 1). The prior informedconsent procedure, set out in articles 5 through 11of the 1998 Rotterdam Convention, aims atenhancing transparency, by facilitating informationexchange, providing for a national decision-making process on the import and export of thechemicals and pesticides covered by theConvention, and by disseminating these decisionsto the parties. The procedural obligations thatapply to the parties in relation to each other arecomplemented by provisions set up to ensureadequate information of the individual importerand of the general public in article 13 through 15,thereby reflecting Principle 10 with regard toaccess to information.

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23. The 1999 Basel Protocol on Liability andCompensation for Damage resulting fromTransboundary Movements of Hazardous Wastesand their Disposal (“1999 Liability Protocol”) is agood example of the third element of Principle 10,access to justice in environmental matters. “Theobjective of the Protocol is to provide for a ...regime for liability and ... compensation fordamage resulting from the transboundarymovement of hazardous wastes...” (article 1). The1999 Liability Protocol establishes a system of strictliability (article 4) and fault-based liability (article 5)for different categories of damage, as well asproportionate liability in cases of combined causeof damage (article 7). The persons subject toliability according to the 1999 Liability Protocolmay be either the exporter or notifier, or theimporter, or the disposer of the waste. Theimportant link is article 17, which allows anyperson who has suffered damage from activitiescovered by the 1999 Liability Protocol to bring aclaim for compensation before the competentnational court against those who are liable inaccordance with the Protocol. Article 17(2)requires signatories to “...ensure that its courtspossess the necessary competence to entertainsuch claims for compensation”. The right of accessto justice is further supported by the provisions ofmutual recognition and enforcement ofjudgements contained in article 21 of the 1999Liability Protocol.

24. Like the 1992 Biodiversity Convention, theCartagena Protocol on Biosafety to the Conventionon Biological Diversity, adopted in 2000, containsseveral provisions on public awareness andinformation, though in a more explicit way: partiesshall endeavour to ensure access to information onLiving Modified Organisms (“LMOs”) and are topromote public awareness, education andparticipation concerning the transfer, handling anduse of LMOs (article 23(1)(a),(b)). Parties shall alsoendeavour to inform their public about the meansof public access to the comprehensive informationsystem on Biosafety envisaged by the CBD and setup by the Protocol, namely the Biosafety Clearing-House article 23(3)). The 2000 Cartagena Protocolreflects the element of public participation inarticle 23(2), which requires that the public shall beconsulted in the decision-making processregarding LMOs, and the results of such decisionare to be made available to the public.

25. The most recent example of a globalenvironmental convention reflecting Principle 10 isthe Stockholm Convention on Persistent OrganicPollutants (“POPs”), (“2001 StockholmConvention”) adopted in 2001. It shows the recent

trend of environmental conventions to provideincreasing detailed about the state dutiesconcerning information and public participation.The obligation to promote and facilitate theprovision to the public “of all availableinformation” concerning POPs in article 10(1)(b) isaccompanied by the duty to ensure that the publichas access to that information. according to thecapabilities of the party. Article 10(1)(d) enshrinespublic participation with respect to addressingPOPs and their effects and the development of“adequate responses,” explicitly stating that thisalso includes “opportunities for providing input atthe national level regarding implementation of thisConvention.” Article 10 of the 2001 StockholmConvention is also quite elaborate on the issue ofpublic awareness as it mentions the promotion ofawareness among policy and decision-makers aswell as education and training programmes at thenational and international levels including theexchange of education and public awarenessmaterials (article 10(1)(a),(c),(f),(g)). It further statesthat industry and professional users shall beencouraged to facilitate the provision of relevantinformation on POPs at the national andinternational levels, as appropriate (article10 (3)).Different ways of how the information may beprovided are illustrated in article 10(4).

26. Conventions of the International LabourOrganization (“ILO”) provide good examples of theelaboration of Principle 10. Several ILOconventions adopted since 1992 deal withenvironmental protection and health of workers inthe workplace and assign specific rights ofinformation and participation to workers and theirrepresentatives. The ILO Convention concerningthe Prevention of Major Industrial Accidents of1993 assigns specific rights to workers and theirrepresentatives at “major hazard installations”(article 20) to be consulted "through appropiatecooperative mechanisms in order to ensure a safesystem of work..." and the right to be adequatelyinformed of the hazards associated with theworkplace and their likely consequences. The ILOConvention concerning Safety and Health in Minesof 1995 contains provisions on rights of workersand their representatives, including the right toaccess to information on workplace hazards(article 13(1)).

27. The 2001 ILO Convention No. 184 concerningSafety and Health in Agriculture emphasizesconsultation and participation throughout. Article7 requires the national laws and regulations ornational authority to ensure that the employercarries out “...appropriate risk assessments inrelation to the safety and health of workers and, on

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the basis of these results, to adopt preventive andprotective measures to ensure that under allconditions of their intended use, all agriculturalactivities, workplaces, machinery, equipment,chemicals, tools and processes under the control ofthe employer are safe and comply with prescribedsafety and health standards...”. In addition,“...adequate and appropriate training andcomprehensible instructions on safety and healthand any necessary guidance or supervision...” mustbe provided to workers in “...agriculture, includinginformation on the hazards and risks associatedwith their work and the action to be taken for theirprotection, taking into account their level ofeducation and differences in language”. In respectto remedies, immediate steps must be taken “...tostop any operation where there is an imminent andserious danger to safety and health and to evacuateworkers as appropriate.”

28. Article 8 adds that agricultural workers have all thePrinciple 10 rights, i.e.: “...(a) to be informed andconsulted on safety and health matters includingrisks from new technologies; (b) to participate inthe application and review of safety and healthmeasures and, in accordance with national lawand practice, to select safety and healthrepresentatives and representatives in safety andhealth committees; and (c) to remove themselvesfrom danger resulting from their work activity whenthey have reasonable justification to believe thereis an imminent and serious risk to their safety andhealth and so inform their supervisor immediately.They shall not be placed at any disadvantage as aresult of these actions...”. Finally, “...there shall beprior consultation with the representativeorganizations of employers and workersconcerned” in implementing the Convention.

3. Regional Conventions

29. At the regional level, there are more numerousenvironmental conventions containing provisionsthat reflect one or more elements of Principle 10,some of which were adopted before the 1992 RioConference. Among the conventions produced byEuropean regional organizations after 1992, the1993 Convention on Civil Liability for Damageresulting from Activities Dangerous to theEnvironment (“1993 Lugano Convention”) of theCouncil of Europe, serves as an example ofproviding for access to justice. Focusing morebroadly on access to information, publicparticipation in decision-making and access tojudicial and administrative proceedings as its mainobjectives, the 1998 Aarhus Convention,negotiated under the auspices of the UNECE, is themost comprehensive legally binding instrumentelaborating on Principle 10. (See also under

Chapters 1 and 3 above). Other examples in theUNECE region include two Protocols to the 1979UNECE Convention on Long-Range TransboundaryAir Pollution (of 1998 and 1999, respectively), andthe 1999 Protocol on Water and Health to the1992 Convention on the Protection and Use ofTransboundary Watercourses and InternationalLakes.

30. There are also numerous provisions reflectingPrinciple 10 to be found in environmentalconventions in the African region (e.g., in theLusaka Agreement on Cooperative EnforcementOperations directed at Illegal Trade in Wild Faunaand Flora of 1994, and in the 1995 Agreement onthe Conservation of African-Eurasian MigratoryWaterbirds). An example of the Near East Regionis the 1993 Agreement for the Establishment of theNear East Plant Protection Organization. The 1985ASEAN Agreement on the Conservation of Natureand Natural Resources of the Asian and PacificRegion is another example of a regionalconvention that contains the concepts of Principle10 prior to 1992. In North America, the 1993North American Agreement on EnvironmentalCooperation includes all aspects of Principle 10. Inthe Central American region, the 1992 Conventionfor the Conservation of the Biodiversity andProtection of Wilderness Areas in Central America,and the 1993 Regional Convention for theManagement and Conservation of Natural ForestEcosystems and the Development of ForestPlantations are identified as treaties containingreferences to information and public participation.Finally, there are a large number of conventionsand protocols on regional seas which demandpublic awareness and/or public participation,including several instruments prior to 1992.

4. Non-Binding International Legal Instruments

31. A large number of non-binding international legalinstruments adopted prior to 1992 alreadycontained the concepts found in Principle 10inspired, inter alia, by human rights instrumentsand by the 1972 Stockholm Conference on theHuman Environment. A rapidly emergingconsensus on the three procedural rights led totheir incorporation into Principle 10 at the UnitedNations Conference on Environment andDevelopment in 1992. Most recently, the WSSDPlan of Implementation in its paragraphs 162through 167 on national laws for sustainabledevelopment calls upon governments to promotesustainable development at the national level by,inter alia, enacting and enforcing clear andeffective laws that support sustainabledevelopment. All countries are further called on tostrengthen governmental institutions, including by

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providing necessary infrastructure and bypromoting transparency, accountability and fairadministrative and judicial institutions. Paragraph164 calls upon all countries to “...promote publicparticipation, including through measures thatprovide access to information regarding legislation,regulations, activities, policies and programmes...”.


National Actions to Enhance Information,

Participation and Access to Justice

32. Public awareness of environmental issues isimportant if the public is to be involved at everylevel of environmental management. Principle 10encourages each country to have informed citizenswho can participate in environmentalmanagement. The role of the government, themedia, schools and other institutions is importantin raising awareness on environmental issues if thepublic is to understand the problems andparticipate in resolving them at all levels. Publicauthorities need effective mechanisms forproviding environmental information. Whereenvironmental information is lacking, the public ishindered from taking appropriate action to stopenvironmental degradation. The lack ofenvironmental information also affects publicparticipation in decision-making because thepublic cannot speak out about environmentaldegradation and unhealthy conditions in thecommunity if they are not aware of their rights ortheir situation.

33. State practice shows that a country’s constitutionalprovisions, acts of parliament, and policydocuments and guidelines have been used toimplement Principle 10. The right to life and/or toa healthy environment provided in national andinternational law generally extends to proceduralrights such as those in Principle 10. In recent years,the right to environment has been recognized inparticular to have a procedural aspect, meaningthis right includes access to information relating tothe immediate environment and/or of projectsintended to be undertaken in the area which arelikely to adversely affect the environment. Thesedevelopments have enabled individuals andassociations to bring actions on the ground thatthey have been prevented from getting access toinformation, or there has been a failure to respondto an information request. The parties can alsobring action if they have been prevented fromparticipating in decision-making processes or ifthey are challenging situations of environmentaldegradation that have caused them harm.

34. Some countries have adequate laws that providefor the right of the public to access environmentalinformation held by public authorities, but inpractice such information may not be easy toretrieve. This problem, caused by lack of capacityto retrieve information as well as inadequateenforcement of the right, causes difficulties inobtaining information on such issues as landownership, which may be needed for publicparticipation in decision-making or access tojustice in environmental matters.

35. The disparity between law and practice and theneed to strengthen capacity for retrievingenvironmental information must be consideredwhen efforts are made to enhance the applicationof Principle 10. In recent years, UNEP has beenreaching out to all the relevant stakeholdersincluding the Judiciary, learning institutions andothers in order to expose them to currentenvironmental law and the concept of sustainabledevelopment, to strengthen the legal andinstitutional framework for environmentalmanagement.

36. The public can participate in decision-making onlyif opportunities are made available to the public toparticipate. The Environmental Impact Assessment(“EIA”) procedure mandated by many nationallaws and policies is a good example of a means toengage the public at the relevant level in decision-making. The EIA process in most countries has aparticipatory approach that provides opportunitiesfor the public to be involved in decision-making byseeking their input on decisions that are likely toaffect their immediate environment. In the processof developing and strengthening environmentallaws and policies, the public has also beeninvolved in consensus building stakeholderworkshops preceding the enactment of laws orenvironmental policies, in the process of issuinglicences or permits for facilities, and in theenforcement of national laws in courts and theimplementation of policies and guidelines.

37. The participation of the public may be either byindividual citizens or by the civil society. Inparticular, Non-Governmental Organizations(“NGOs”) are expected to articulate issues and toinstitute public interest suits if there is a need.There are instances where the law may not restrictpublic interest litigation, thus allowing it tostrengthen environmental legislation, butnumerous difficulties may still exist because of thelack of access to information. The public or NGOsmay not be adequately involved and informed.The result is an inability to articulate concerns or toact on them. The public or civil society as a whole

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thus fails to take action that could change anenvironmental situation, keeping quiet when theyshould be pressuring the relevant authorities to act.The Malmo Ministerial Declaration adopted at theFirst Global Ministerial Environment Forum thatwas organized by UNEP declared that “The role ofcivil society...should be strengthened throughfreedom of access to environmental information toall, broad participation in environmental decision-making, as well as access to justice onenvironmental issues...”.

38. To enhance public participation in decision-making for the purpose of strengthening the legaland institutional framework for environmentalmanagement, it is important to advance thecapacity of the public to understand environmentalissues so that it can participate in an informedmanner. The participatory approaches that areused in environmental decision-making to involvemajor groups, or community-based participation indevelopment activities on such issues as forest,water and land management can be looked into,when seeking to enhance the participation of thepublic in decision-making. Other relevant issuesinclude the adequacy of laws providing for theinvolvement of the public in the EIA process as wellas the adequacy of existing national legislation forenhancing the application of Principle 10.

39. The WSSD Plan of Implementation identifiesactions that can strengthen legislation by theapplication of Principle 10 in its paragraphs 162through 167. The Plan of Implementation in itsparagraphs 163 and 164 calls on each country totake responsibility for promoting sustainabledevelopment and, inter alia, “...enacting andenforcing clear and effective laws that supportsustainable development. All countries shouldstrengthen governmental institutions, including byproviding necessary infrastructure and bypromoting transparency, accountability and fairadministrative and judicial institutions. Allcountries should also promote public participation,including through measures that provide access toinformation regarding legislation, regulations,activities, policies and programmes. They shouldalso foster full public participation in sustainabledevelopment, policy formulation andimplementation. Women should be able toparticipate fully and equally in policy formulationand decision-making”. This means each countryhas a responsibility to enhance access toenvironmental information, public participation indecision-making and access to justice inenvironmental matters in their country.

40. Obstacles to strengthening the law related toaccess to justice in environmental matters also mayarise. For instance, the public may be capable ofarticulating environmental issues and may have therequired information to file a case in court, but itcan still face problems if no effective judicial andadministrative remedies and procedures areavailable. The main issue that hinders access tojustice in environmental matters in many countrieshas been lack of standing for public interestlawsuits when one cannot prove personal interest.However, even in a few countries where publicinterest suits on the environment are encouragedwithout proof of personal interest, actualvindication of environmental rights is lacking asmany cases brought by the public or NGOs do notsucceed. Public interest litigation is frustrated bythe cost of litigation, by lack of awareness, and bythe substantial difficulties in gathering evidenceeven where the need to prove personal interest inpublic interest litigation is not required by courts.Further, in some jurisdictions, advocates taking uppublic interest litigation are denied the right to suebecause significant procedural difficulties stand inthe way of the plaintiff’s claim even when the lawprovides for strict liability for violations. Lack ofsufficient enforcement of legal remedies is aproblem that also frustrates litigation as a preferredoption in some countries.

41. Access to justice in environmental matters can beenhanced through legal aid programmes and bybuilding the capacity of the members of thejudiciary and prosecutors at all levels to appreciateenvironmental issues and concerns. The Judiciaryand other legal stakeholders creating a greaterlikelihood that they will be trained in sustainabledevelopment and environmental law and shouldinterpret the law and balance the interests in favourof protecting public health and preserving theenvironment. A citizen who brings suits in courtnot only is aware of environmental issues aroundhim, but expects to find an informed Judiciary thatwill consider environmental issues in aknowledgeable manner and provide theappropriate remedy to protect public health andpreserve the environment.

42. Mechanisms for avoiding environmental disputes,and judicial, quasi-judicial and administrativemechanisms for avoidance and settlement ofenvironmental disputes, including traditionalmechanisms, can also promote access to justiceand strengthen the legal and institutionalframeworks for sustainable development at thenational level. In particular, the human resourcecapabilities must be strengthened amongGovernment officials to promote and further

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develop means through law and practice toincrease transparency, strengthen access toinformation and improve public participation inprocesses leading to decision-making relating tothe environment, and avoid and settleenvironmental disputes through access to justice.

43. The large number of national and internationalinstruments so far developed provides anopportunity for governments to develop andstrengthen national environmental legislation,policy and institutions for the purpose of enhancingthe application of Principle 10. Many internationallegal instruments reflect the different dimensions ofPrinciple 10, including some instruments whichincorporate all three elements of the Principle.Access to environmental information includes bothensuring that authorities acquire the relevantinformation and ensuring the public the right ofaccess to that information. The latter allows for theavailability of that information to whoever isinterested on any matter concerning theenvironment, without their having to provide aparticular individualized interest. Publicparticipation in decision-making invites themembers of the public and other interested partieslike non governmental and intergovernmental

organizations to participate in the formulation ofthe policies and in the execution of those policies.Access to justice requires the provision oflegislative safeguards to allow a challenge to anyadministrative action or decision made regardingthe environment.

44. Principle 10 is one of the most widely discussedprinciples at global, regional and national level,and is to be found throughout the entire TrainingManual. Practically every chapter has reference toit as concept, as a tool incorporated in binding andnon-binding instruments and their implementationat national level in national legislation, regulationsand policies. (See for example chapters 1, 2, 3, 4and several others). In practice virtually allcountries in the different regions embrace theessence and thrust of the principle.

Prof. Dinah L. Shelton, Patricia Roberts HarrisProfessor of Law, George Washington UniversityLaw School

with Sylvia Bankobeza and Barbara Ruis, LegalOfficers, Division of Policy Development and Law,UNEP

Resources

Internet Materials

AARHUS CONVENTION INFORMATION available at http://www.unece.org/env/pp/

ENVIRONMENTAL JUSTICE DATABASE available at http://www.msue.msu.edu/msue/imp/modej/masterej.html

THE ENVIRONMENTAL JUSTICE FOUNDATIONS SITE available at http://www.ejfoundation.org/

UNITED NATIONS ENVIRONMENT PROGRAMME: JUDGES PROGRAMME available athttp://www.unep.org/dpdl/Law/Programme_work/Judges_programme/index.asp

UNITED NATIONS ENVIRONMENT PROGRAMME: RESOURCES FOR CIVIL SOCIETY AND NGOS available athttp://www.unep.org/Documents/Default.asp?DocumentID=292

US ENVIRONMENTAL PROTECTION AGENCY, INFORMATION ON ENVIRONMENTAL JUSTICE available athttp://www.epa.gov/compliance/environmentaljustice/

Text Materials

Alexandre Kiss and Dinah Shelton, INTERNATIONAL ENVIRONMENTAL LAW, (3rd edition, Transnational Press, 2004).

Carl Bruch and John Pendergrass, THE ROAD FROM JOHANNESBURG: TYPE II PARTNERSHIPS, INTERNATIONAL LAW AND THE

COMMON, (15 Geo. Int’l Envtl. L. Rev. 855, Summer, 2003).

David A. Wirth, PUBLIC PARTICIPATION IN THE INTERNATIONAL PROCESSES: ENVIRONMENTAL CASE STUDIES AT THE NATIONAL AND

INTERNATIONAL LEVELS, (7 Colo. J. Int’l Envtl. L. & Pol’y 1, Winter, 1996).

Gary D. Bass and Alair MacLean, ENHANCING THE PUBLIC’S RIGHT-TO-KNOW ABOUT ENVIRONMENTAL ISSUES, (4 Vill. Envtl.L. J. 287, 1993).

Jonas Ebbesson, ACCESS TO JUSTICE IN ENVIRONMENTAL MATTER IN THE EU, (The Hague, Kluwer Law International, 2002).

Katherine M. Harman-Stokes, COMMUNITY RIGHT-TO-KNOW IN THE NEWLY INDEPENDENT STATES OF THE FORMER SOVIET

UNION: ENDING THE CULTURE OF SECRECY SURROUNDING THE ENVIRONMENTAL CRISIS, (15 Va. Envtl. L. J 77, Fall 1995).

LeRoy Paddock, ENVIRONMENTAL ACCOUNTABILITY AND PUBLIC INVOLVEMENT, (21 Pace Env. L. Rev. 243, Summer 2004).

Maria Gavouneli, ACCESS TO ENVIRONMENTAL INFORMATION: DELIMITATION OF A RIGHT, (13 Tul. Envtl. L. J. 303, Summer2000).

Mark A. Drumbl, DOES SHARING KNOW ITS LIMITS? THOUGHTS ON IMPLEMENTING INTERNATIONAL ENVIRONMENTAL

AGREEMENTS: A REVIEW OF NATIONAL POLICIES, A COMPARATIVE STUDY OF CAPACITY-BUILDING, (18 Va. Envtl. L. J. 281, 1999).

Neil A.F. Popovic, THE RIGHT TO PARTICIPATE IN DECISIONS THAT AFFECT THE ENVIRONMENT, (10 Pace Envtl. L. Rev. 683,Spring 1993).

Sara Pirk, EXPANDING PUBLIC PARTICIPATION IN ENVIRONMENTAL JUSTICE: METHODS, LEGISLATION LITIGATION AND BEYOND, (17J. Envtl. L. & Litig. 207, Spring 2002).

Sean T. McAllister, HUMAN RIGHTS AND THE ENVIRONMENT: THE CONVENTION ON ACCESS TO INFORMATION, PUBLIC

PARTICIPATION IN DECISION-MAKING, AND ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS, (1889 Colo. J. Int’l. Envtl. L. Y. B.187, 1989).

Stephen Stec, THE AARHUS CONVENTION: AN IMPLEMENTATION GUIDE, (New York, United Nations, 2000).

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TRANSBOUNDARY AIR POLLUTIONChapter 8

8. TRANSBOUNDARY AIRPOLLUTION

I. Introduction

1. “Air pollution” describes the presence ofsubstances that are artificially introduced into theair. Air pollution stems from gases, which in excessare harmful to human health, buildings,ecosystems and the environment in general. Thischapter primarily focuses on the problem of long-range transboundary air pollution, mainly inEurope and haze pollution focused on SoutheastAsia. The section on national implementationrefers to two examples based on Austria andPoland, and one on Indonesia.


1. Long-Range Transboundary Air Pollution

a) The Problem

2. Sulphur dioxide (“SO2”) and nitrogen oxide(“NOX”) are the primary causes of acid rain.Although some quantities of SO2 and NOX are alsoproduced by nature, human activities generate themajority of these gases and the resultingenvironmental problems. Emissions of SO2 andNOX originate from stationary sources, such ascoal-fired and oil-fired power stations, and frommobile sources, such as cars and trucks, ships, andaircrafts.

3. Acid rain occurs when SO2 and NOX react in theatmosphere with water, oxygen, and otherchemicals, forming various acidic compounds.Sunlight increases the rate of most of thesereactions. The result is a mild solution of sulphuricacid and nitric acid that is deposited back ontoland through wet dispositions like rain, fog or snow,as well as through dry disposition. Theatmosphere’s acidity is carried by wind, whichblows these particles and gases onto buildings,plants and water.

4. Large quantities of acid rain have detrimentalconsequences for wildlife, forests, soils, freshwater,and buildings. Rain containing SO2 and NOXacidifies the soil and water, killing plants andanimals. Surface water acidification can lead to adecline in fish population and other aquaticspecies. Acid rain also harms trees by weakeningthem through damage to their leaves. A survey of

European forests conducted in the mid-1990srevealed that that every fourth tree suffered fromabnormal thinning of the crown, which was largelyattributed to air pollution. Finally, acid rain can bedetrimental to man-made structures, dissolving, forexample, certain types of building stone.

b) Smog

5. Smog is a mixture of carbon monoxide, groundlevel ozone, and particulate matter. Carbonmonoxide is a poisonous gas emitted by vehiclesand released by forest fires and open burning.Smog is formed from the reaction of sunlight,volatile organic compounds (“VOCs”) and NOX.VOCs come from a variety of sources includingindustrial operations, vehicles and area sources(e.g., gas station refilling, open burning, paints andsolvents in households, incomplete combustion inhome heaters, etc.). Smog is a powerful irritant thatcan cause harm to humans even at levels where itis invisible to the eye. The inhalation of ozone andparticulate matter can cause decreased lungcapacity, exacerbate cardio-respiratory diseasesand worsen asthma. Exposure to smog alsodecreases the body’s defence mechanisms againstinfections.

6. It is well established that air pollutants such as SO2and NOX, which are often emitted through factorysmokestacks, can travel hundreds or eventhousands of kilometres. Consequently, theenvironmental impacts from air pollution mayoccur in areas far from their sources.

7. Smog has created local, regiona, and internationalproblems since the beginning of the industrialrevolution. In the nineteenth century, fumesemitted by a smelter located in Trail, Canada, nearthe United States border, raised a problem oftransboundary air pollution and led to claims ofcompensation for the harm caused. Some decadeslater, in 1941, the Trail Smelter Arbitrationarticulated the “no-harm obligation” for the firsttime: countries are obligated to avoid causingtransboundary air pollution that leads toenvironmental damage in other nations. The courtheld that “under the principles of internationallaw…no state has the right to use or permit the useof its territory in such a manner as to cause injuryby fumes in or to the territory of another or theproperties or persons therein, when the case is ofserious consequence and the injury is establishedby a clear and convincing evidence.”

8. International efforts to identify causes and effects oftransboundary air pollution were not initiated until

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the late 1960s. During the 1970s, researchconducted in Europe and North America led to thedevelopment of international legislation in thisfield.

9. While the problem of transboundary air pollutiontraditionally has been discussed largely in thecontext of the developed world, it is clear that airpollution is a serious and growing problem aroundthe globe. In many developing countries, emissionsare set to rise dramatically in the coming years ifthe countries follow conventional developmentpaths to industrialization.

c) The Geneva Convention on Long-Rangetransboundary Air Pollution

(“1979 LRTAP”)

10. In the 1960s, scientists demonstrated theinterrelationship between sulphur emissions incontinental Europe and the acidification ofScandinavian lakes, confirming that air pollutantstravel several thousands of kilometres and settingthe basis of study of long-range transboundary airpollution.

11. In 1972, the United Nations Conference on theHuman Environment signalled the start for activeinternational cooperation to combat the problem ofair pollution. In November 1979, a ministerialmeeting was held in Geneva within the Frameworkof the United Nations Economic Commission forEurope (“UNECE”) on the Protection of theEnvironment. This meeting resulted in the signatureof the Convention on Long-Range TransboundaryAir Pollution (“1979 LRTAP”) by 34 governmentsand the European Community. 1979 LRTAPentered into force in 1983 and currently has 49Parties (as of September 2005), including theUnited States and Canada.

12. 1979 LRTAP created the framework for controllingand reducing the damage to human health and theenvironment caused by transboundary airpollution.

d) LRTAP’s General Rules

13. 1979 LRTAP defines air pollution as “theintroduction by man directly or indirectly ofsubstances or energy into the air, resulting indeleterious effects of such a nature as to endangerhuman health, harm living resources andecosystems and material property, and impair orinterfere with amenities and other legitimate uses ofthe environment...”

14. “Long-range transboundary air pollution means airpollution whose physical origin is situated whollyor in part within the area under the nationaljurisdiction of one State and which has adverseeffects in the area under the jurisdiction of anotherState at such a distance that it is not generallypossible to distinguish the contribution ofindividual emission sources or groups of sources.

15. 1979 LRTAP outlines the general principles ofinternational cooperation for the abatement of airpollution and provides an institutional frameworklinking science and policy.

16. 1979 LRTAP’s overall objective is to protect humanhealth and the environment from air pollution. TheConvention seeks to coordinate parties’ efforts bymeans of increased research, monitoring andinformation exchange on air pollution and itseffects and developing emission reductionstrategies.

17. 1979 LRTAP sets up a Secretariat and an ExecutiveBody. The Secretariat is provided by UNECE and isbased in Geneva. The Executive Body is composedof environmental advisers to UNECE members andmeets annually to review the implementation ofthe Convention and assess the effectiveness ofnational policies. In doing so, the Executive Bodyrelies on accurate data on SO2 and NOX emissionsfrom sources and pollution levels in generalcommunicated by the parties themselves, asrequired by article 8 of 1979 LRTAP.

18. To provide scientific support to the Convention, theProgramme for Monitoring and Evaluation of theLong-Range Transmission of Air Pollutants inEurope (“EMEP”) has been established. TheOrganization for Economic Cooperation andDevelopment (“OECD”) initiated EMEP as a specialprogramme in 1977. Since then, EMEP has set upmore than ninety monitoring stations in twenty-four countries. EMEP’s main functions include thecollection of emission data, measurement of airquality, modelling of atmospheric transport anddeposition of air pollution, and integratedassessment modelling.

e) Protocols to 1979 LRTAP

19. Within the framework of the 1979 LRTAP eightprotocols have been adopted.

20. 1979 LRTAP provides the basis for thedevelopment of several protocols addressingtransboundary air pollution. The 1985 (Helsinki)Protocol to the 1979 Convention on Long-RangeTransboundary Air Pollution on the Reduction of

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Sulphur Emissions or their Transboundary Fluxes byat Least 30 per cent (“1985 First Sulphur Protocol”)was adopted on 8 July 1985, and entered into forceon 2 September 1987. The 1985 First SulphurProtocol requires its parties to reduce emissions oftheir transboundary air pollution by 30% by 1993.Europe recorded substantial decreases in sulphurpollution, despite the fact that three importantemitters (including the United States, UnitedKingdom, and Poland) did not initially ratify theProtocol. The then twenty-one parties to the 1985First Sulphur Protocol reduced the 1980-levelsulphur emission by more than 50% from 1987 to1993. In 1989, the Executive Body begandeveloping a revised protocol incorporating a moresophisticated approach to emission control.

21. The 1994 (Oslo) Protocol to the 1979 Conventionon Long-Range Transboundary Air Pollution onFurther Reduction of Sulphur Emissions (“1994Second Sulphur Protocol”) was adopted on 14 June1994 and entered into force on 5 August 1998.The 1994 Second Sulphur Protocol acknowledgesthe need for precautionary measures to preventtransboundary air pollution from damagingenvironment and natural resources and is based onthe “critical loads” approach. Critical loads are themaximum amount of pollutants that ecosystemscan tolerate without being damaged. TheProtocol’s objective is to reduce sulphurdepositions below the level where significantdamage is likely to occur. The country-specificloads, which are based on a mapping of actual SO2depositions and sources, are specified in Annex I ofthe Protocol. Each party must meet minimumemission targets within varying time scales. Theoverall SO2 emission reduction for all parties ismore than 50%.

22. Implementation of the 1994 Second SulphurProtocol is mainly left to the discretion of theparties but they are required to use the “mosteffective measures” appropriate to thecircumstances of each party. These can includeenergy efficiency, use of renewable energy such aswind power, reducing the sulphur content of fuel,the application of best available technology andthe use of economic instruments such as taxes oftradable permits. Parties are required to report theirSO2 emissions and their implementation measures(article 5).

23. The 1988 Sofia Protocol to the 1979 Conventionon Long-Range Transboundary Air Pollutionconcerning the Control of Emissions of NitrogenOxides or their Transboundary Fluxes (the “1988NOX Protocol”) was adopted on 1 November1988, and entered into force on 14 February 1991.

The 1988 NOX Protocol requires its parties tostabilize their NOX emissions on theirtransboundary air pollution at 1987-levels by1994. The 1988 NOX Protocol covers both majorstationary sources such as power plants, andmobile sources such as vehicle emissions.

24. A second step to the 1988 NOX Protocol requiresthe application of an effects based and criticalloads approach. A new instrument being preparedat present should provide for further reduction ofemissions of nitrogen compounds, includingammonia by addressing all significant emissionsources.

25. The 1991 (Geneva) Protocol to the 1979Convention on Long-Range Transboundary AirPollution concerning the Control of Emissions ofVolatile Organic Compounds or theirTransboundary Fluxes (the “1991 VOC Protocol”)was adopted on 18 November 1991, and enteredinto force on 29 September 1997. The 1991 VOCProtocol specifies three options for emissionreduction targets that have to be chosen uponsignature or upon ratification:

(1) 30% reduction in emissions of volatile organiccompounds by 1999, using a year between1984 and 1990 as a basis (this option has beenchosen by the majority of countries);

(2) The same reduction as for (1) within aTropospheric Ozone Management Area(“TOMA”) specified in Annex I to the 1991VOC Protocol and ensuring that by 1999 totalnational emissions do not exceed 1988 levels.[Annex I specifies TOMAs in Norway; and,

(3) Finally, where emissions in 1988 did notexceed certain specified levels, parties may optfor stabilization at that level of emission by1999. This option has been chosen by forexample Bulgaria, Greece and Hungary.

26. The (Aarhus) Protocol to the 1979 Convention onLong-Range Transboundary Air Pollution onPersistent Organic Pollutants (the “1998 POPsProtocol”) was adopted by LTRAP’s Executive Bodyon 24 June 1998, and entered into force on 23October 2003. The 1998 POPs Protocol focuseson a list of sixteen substances that have beensingled out according to agreed risk criteria. The listincludes eleven pesticides, two industrialchemicals and three by products/contaminants.The ultimate objective is to eliminate anydischarges, emissions and losses of POPs. The1998 POPs Protocol bans outright the productionand use of some products (e.g., aldrin, chlordane,chlordecone, dieldrin, endrin, hexa-bromobiphenyl, mirex and toxaphene). Others are

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scheduled for elimination at a later stage(dichlorodiphenyltrichloroethane (“DDT”),heptachlor, hexaclorobenzene (“HCB”),polychlorinated biphenyls (“PCBs”)). Finally, theProtocol severely restricts the use of DDT, gamma-hexachlorocyclohexane (“HCH” includinglindane) and PCBs. The 1998 POPs Protocolincludes provisions for dealing with the wastes ofproducts that will be banned. It also obliges partiesto reduce their emissions of dioxins, furans,polycyclic aromatic hydrocarbons (“PAHs”), andHCBs below established base-year levels. Further,the 1998 POPs Protocol contains specific limits forthe incineration of municipal, hazardous, andmedical waste.

27. The Executive Body adopted the (Aarhus) Protocolto the 1979 Convention on Long-RangeTransboundary Air Pollution on Heavy Metals (the“1998 Heavy Metals Protocol”) on 24 June 1998and it entered into force on 29 December 2003.The 1998 Heavy Metals Protocol targets threeharmful metals: cadmium, lead and mercury.Parties are required to reduce their emissions forthese three metals below established base yearlevels. The 1998 Heavy Metals Protocol aims to cutemissions from industrial sources (iron and steelindustry, non ferrous metal industry), combustionprocesses (power generation, road transport, andwaste incineration. It establishes stringent limitvalues for emissions from stationary sources andsuggests best available techniques for thesesources, such as special filters or scrubbers forcombustion sources or mercury-free processes.The 1998 Heavy Metals Protocol also requiressignatories to phase-out use of leaded petrol. It alsointroduces measures to lower heavy metalemissions from other products, such as mercury inbatteries, and proposes the introduction ofmanagement measures for other mercurycontaining products (e.g., electrical components(thermostats, switches), measuring devices(thermometers, manometers and barometers),fluorescent lamps, dental amalgam, pesticides andpaint).

28. The (Gothenburg) Protocol to the 1979 Conventionon Long-Range Transboundary Air Pollution toabate Acidification, Eutrophication and Ground-level Ozone (the “1999 Ozone Protocol”) wasadopted by LTRAP’s Executive Body on 30November 1999 and entered into force on 17 May,2005. The 1999 Ozone Protocol sets emissionceilings for 2010 in relation to four pollutants: SO2,NOX, VOCs, and ammonia. These ceilings werenegotiated on the basis of scientific assessments ofpollution effects and abatement options. Partieswhose emissions have a more severe

environmental or health impact and whoseemissions are relatively cheap to reduce will haveto make the biggest cuts. Once the 1999 OzoneProtocol is fully implemented, Europe’s sulphuremissions should be cut by at least 63%, NOXemissions by 41%, VOC emissions by 40% andammonia emissions by 17% compared to 1990.The 1999 Ozone Protocol also sets tight limits forspecific emission sources (e.g., combustion plant,electricity production, dry cleaning, cars andlorries, etc.) and requires best available techniquesto keep emissions at the reduced levels.

29. Scientists estimate that once the 1999 OzoneProtocol is implemented, the area in Europe withexcessive levels of acidification will shrink fromninety-three million hectares in 1990 to fifteenmillion hectares. In addition the area withexcessive levels of eutrophication will fall from 165million hectares in 1990 to 108 million hectaresand the number of days with excessive ozonelevels will be halved. Consequently, it is estimatedthat life-years lost as a result of the chronic effectsof ozone exposure will be about 2,300,000 lowerin 2010 than in 1990, and there will beapproximately 47,500 fewer premature deathsresulting from ozone and particulate matter in theair. The exposure of vegetation to excessive ozonelevels will be 44% lower than in 1990.

30. Finally, related to the financial aspects of the 1979LRTAP, the Protocol to the 1979 Convention onLong-Range Transboundary Air Pollution on Long-Term Financing of the Cooperative Programme forMonitoring and Evaluation of the LRTAP in Europe(“EMEP”) was adopted on 1984 and entered intoforce on 28 January, 1988.

31. These protocols demonstrate the aptitude of thetreaty system established by the 1979 GenevaConvention to evolve and develop newtechniques. The protocols also reflect thepermanent negotiations that have become anecessary part of international environmental law.

f) LTRAP Compliance and Supervision

32. 1979 LTRAP and the 1985 First Sulphur Protocolaffirm the Executive Body’s responsibility to reviewimplementation and require parties to submitreports. However, none of the protocols containany formal provision for supervision ofcompliance.

33. Thus, in 1997, the Executive Body established anImplementation Committee for the review ofcompliance by the parties with their obligationsunder the protocols to the Convention. The

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Implementation Committee has responsibility forreviewing compliance with all of LTRAP’sProtocols under a common procedure. It mayinvestigate and report problems of non-compliance. The Executive Body may then decideon non-discriminatory measures to securecompliance. However, its decisions requireconsensus and thus can be easily blocked.

34. Some countries have criticized 1979 LTRAP for thesoft wording of its provisions and the lack of stronginstitutional framework of its early protocols.Despite this criticism, transboundary air pollutionin Europe has fallen substantially, especially inrelation to SO2 pollution. Thus, the overall pictureis one of compliance and improvement. TheLRTAP regime has not solved the problem of acidrain or transboundary air pollution but it hascertainly succeeded in reversing earlier trends.

2. Haze Pollution

a) The Problem

35. Another form of transboundary air pollution ishaze, which consists of small particles of dust,smoke, pollen or tiny droplets of water floating inthe air. This chapter discusses smoke haze createdby forest fires.

36. Southeast Asia is particularly confronted with forestand land fires. The worst fires accompanied bysmoke haze broke out in 1997 and 1998, and hadsevere consequences on human beings and theenvironment. Smoke haze was spread acrossnational borders and affected especially Brunei,Indonesia, Malaysia and Singapore. Twenty millionpeople were forced to breathe potentially harmfulair for extended periods. The haze pollutionresulting from these fires imposed enormouseconomic costs on the region. It has beenestimated that the 1997 and 1998 forest fires costthe region approximately $9 billion in lostagricultural products, infrastructure repair, reducedtourism and other economic costs.

37. In addition to regional outfall, forest fires also haveconsequences for the global environment. Thesecond largest tropical forest in the world is locatedin Indonesia, which was hit hardest by the 1997fires. Therefore, the negative effects of haze smokepose a serious threat to global biodiversity.Furthermore, scientists have warned that the fires’negative impact on global warming may beconsiderable. Studies suggest that fires in Indonesiacould have added as much as one billion tons ofcarbon dioxide to the atmosphere, equivalent toWestern Europe’s total CO2 emissions for a sixmonth period.

38. Several factors seem to interact in causing andexacerbating the effects of forest and land fires.The El Nino weather phenomenon interferes withmonsoon-rain patterns and thus causes severedroughts, which make land and forests moresusceptible to fires. In addition, fires result fromfarmers’ land-clearing activities. The mostimportant factor, however, is man-made loggingand deforestation. Logged forests do not retainmoisture as well as primary forests, which makesthem prone to larger and more extensive fires.Many of Southeast Asia’s fires, therefore, are not somuch a phenomenon of nature as a consequenceof human intervention.

b) Negotiation History

39. Following the 1997 fires, the environmentministers of the Association of Southeast AsianNations (“ASEAN”) intensified their cooperation toprevent and mitigate such devastating forest andland fires for the future. ASEAN is composed ofBrunei, Cambodia, Indonesia, Laos, Malaysia,Myanmar, the Philippines, Singapore, Thailand,and Vietnam.

40. The ASEAN governments agreed to a RegionalHaze Action Plan (“RHAP”) in December 1997.This plan establishes mechanisms to monitor firesand to strengthen regional fire-fighting capabilities,including timely and more accurate weatherforecasts, early warning mechanisms and thedevelopment of preventive tools, such asmonitoring databases and fire danger ratingsystems. The RHAP also calls for strict enforcementof existing laws, regulation of open fires andtraining of prosecution and law enforcementofficers. A website has been established to moreeffectively share and manage information relatingto early warning and monitoring.

41. At the 2002 World Conference and Exhibition onLand and Forest Fire Hazards held in KualaLumpur, the ASEAN ministers signed the ASEANAgreement on Transboundary Haze Pollution (the“2002 ASEAN Agreement”), an importantcomponent of the long-term and broad frameworkof the RHAP.

42. The 2002 ASEAN Agreement is the first sucharrangement in the world. It binds a group ofcontiguous states to tackle land and forest fires andthe resultant transboundary haze pollution and canserve as an example for other regions of the world.Every year around the world, fires destroyapproximately 500 million hectares of woodland,open forests, tropical and sub-tropical savannah, aswell as 10 to 15 million hectares of boreal andtemperate forest and 20 to 40 million hectares oftropical forests.

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1. EUROPE

a) Austria

43. Austria ratified the 1994 Second Sulphur Protocolin 1998. The 1994 Second Sulphur Protocolrequires a licensing procedure for each new ormodified installation according to the IndustrialCode and the Clean Air Act for Steam Boilers, bothof which were introduced in the 1980s. Thelicensing procedure limits emission values anddetermines appropriate measurements accordingto Best Available Technology (“BAT”). For severalcategories of stationary emission sources, explicitemission limit values and BAT requirements havebeen set by ordinance. Limit values for the sulphurcontent of fuels have been adopted. Emission limitvalues are different depending on the type of fueland of the thermal input. Almost all of them aremore stringent than the values in Annex V of the1994 Second Sulphur Protocol. As a consequence,Austria’s emissions of sulphur dropped by 55%between 1990 and 2000.

44. Austria has not yet implemented market basedpollution control mechanisms, such as emissionstrading.

45. Measures to increase energy efficiency areincluded among other energy specific regulationsin the ‘building code’. For example, there aresubsidies for the construction/rehabilitation ofresidential buildings, the replacement of oldheaters and stoves and for energy efficiencymeasures in the commercial and industrial sector.

46. Austria’s energy policy has put special emphasis onthe use of renewable energy. For example, theregional energy agency for the federal province ofUpper Austria operates energy centres in the CzechRepublic and Slovakia and carries out projectstogether with neighbouring countries. Recentrenewable energy initiatives include an annualinternational symposium (World SustainableEnergy Day) and a competition for best practiceprojects. Austria also directly supports projects forinformation transfer, including the hosting ofinternational summer schools on solar energy.

47. Monitoring of ambient air concentrations ofsulphur dioxide is performed by about 150monitoring stations in Austria, out of which threeare part of the EMEP network. Research projects areconducted such as the improvement of data oncritical loads, deposition of sulphur compounds,dispersion and receptor modelling of air pollutants,

and integrated monitoring of air pollution effectson ecosystems.

b) Poland

48. Poland has signed and ratified LTRAP’s 1998Heavy Metals Protocol. The country’s NationalStrategy for the Reduction of Heavy Metal Emission(the “National Heavy Metal Strategy”) waselaborated in 1999 and updated in 2002. Inaddition, Poland’s National Environmental Policyfor 2003-2006 covers a range of environmentalissues, including heavy metal emissions. Poland’sNational Environmental Policy for 2003-2006includes wider use of emission standards in theindustry, energy and transport sectors and the useof product control measures, introduction of BATand emission standards for eleven sourcecategories. The country has also developedprinciples of its energy policy through 2020, thatstress the need for reduction of heavy metalemissions through changes in the structure of fuelconsumption. This should be achieved by anincrease in the use of natural gas, liquid fuels, andrenewable sources.

49. Poland’s National Heavy Metal Strategyspecifically requires:

• Modification of the Polish public system ofstatistics (emission inventories);

• Detailed prognosis for heavy metal emissionson the national and sectoral level;

• Inventory of major emission sources for theeleven source categories;

• Evaluation of applied technologies andemission control measures;

• Technical and cost-effective analysis of thepossibilities of introducing BAT;

• Mandatory and recommended product controlmeasures;

• Analysis of the effectiveness of differenteconomic and market instruments; and

• Preparation of appropriate emission standardsfor stationary and mobile emission sources.

50. In most of the listed activities initial results havebeen achieved. Due to industrial restructuringPoland has led to a reduction in the country’sheavy metal emissions and in electric energyconsumption.

51. The 1998 Heavy Metals Protocol on heavy metalsrequires parties not to exceed the emission levels ofthe reference years. In its National Heavy MetalStrategy, Poland chose 1985 as reference year forcadmium and lead and 1988 for mercury.Significantly high emission reduction results havebeen obtained for lead and cadmium. The lowest

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reduction was achieved for mercury. Polandended the production of leaded petrol in 2002. By1999, Poland had achieved reduction levels ofapproximately 57% for cadmium, 63% for leadand 32% for mercury.

52. The use of BAT has become mandatory with theintroduction of the new Environmental ProtectionLaw. Source categories considered to be major inPoland are:

• Fuel combustion processes for energyproduction;

• Iron and steel production (including smelterplants and coke production);

• Non-ferrous metal production (lead, zinc,copper and aluminium);

• Chemical industry (fertilizer production);• Transport; and• Waste incineration.

53. So far, in Poland, the main criteria for determiningemission ceilings for an individual enterprise hasbeen the air pollution concentration in the vicinityof the emission source. Changes in this approachare being considered. At present, air emissionstandards are prepared for selected industrialsources (e.g., iron and steel production, foundries,cement production, coke production, cured oilrefineries, etc.). According to the updated NationalStrategy, it is necessary to establish emission limitvalues for certain source categories and processessuch as sinter plants and cement industry. Inrelation to emission limit values for fuelcombustion processes changes are needed in theexisting limit values for particulate emission forsolid and fuels.

54. Requirements regarding the exchange oftechnologies and techniques are also included inthe new Framework Act on EnvironmentalProtection Law. Introduction of new techniquesand technologies are supported by the NationalFund for Environmental Protection and WaterManagement. Transfer of new environmentaltechnologies is also one of the main issuesincluded in multilateral and bilateral cooperation.Poland is preparing to establish a National Centrefor BAT.

2. ASIA

Indonesia

55. Since the 2002 ASEAN Agreement was ratifiedonly in 2003, countries have not yet had theopportunity to adopt specific implementinglegislation. However, most of the countries,including Indonesia, have some laws in place to

combat forest fires and its attendant haze pollution.As of August 2005, seven countries (Brunei,Darussalam, Malaysia, Myanmar, Singapore,Thailand, Vietnam, Lao PDR) have ratified theAgreement.

56. Indonesia is one of the countries hardest hit byforest fires. While it is one of the signatories to the2002 ASEAN Agreement, it has not yet ratified theagreement. The participation of Indonesia will becrucial to the success of the 2002 ASEANAgreement and its ratification is expected in thenear future. However, Indonesia has policies andlegislation in place that directly or indirectly targetthe problematic of forest fires and haze.

57. Up to 80% of the forest fires that plagued Indonesiain 1997 and 1998 were attributable to agriculturalexpansion, particularly oil palm plantations. Alongwith Malaysia, Indonesia accounts for 85% ofworld palm oil exports. Indonesia adapted its landuse policy in order to address the consequences offorest fires. A ministerial decree provides for thecriteria for the allocating forestland for oil palmestates and specifies site criteria for new oil palmplantations.

58. Indonesian Government Regulation on AirPollution Control No. 41/1999 requires theIndonesia Environmental Impact ManagementAgency (“BAPEDAL”) to publish the Air PollutantsStandards Index (“APSI”). This index takes intoconsideration factors such as the air quality levelfor human health, animals, plants and buildings.The Minister of Environment is obliged to declarean air pollution emergency situation if the APSIindex reaches a certain level (i.e. 300 points).

59. Indonesia has also introduced the 1999 ForestryLaw No. 41 (“Forestry Law”) in order to address thecauses of forest fires and to promote theirprevention. Article 49 of the Forestry Law stipulatesthat the licence holder in the field of forestry andplantation is responsible for the occurrence of theforest fires in his jurisdiction. Article 50 of theForestry Law states that every person is prohibitedfrom burning the forest unless they hold anauthorized licence for special or limited purposes.For example, burning is permitted for forest firecontrol and combating pest and disease. TheForestry Law also imposes criminal sanctions.

60. Indonesia’s Environment Management Act No.23/1997 provides that a licence for an activity withsignificant impact on the environment cannot beundertaken unless the proponent can show that EIAhas been approved by the responsible agency. Thelicence must reflect the recommendations and

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outcome of the EIA. The licence issuer has theauthority to impose administrative sanctions fromwarning to withdrawal of the licence if the licenceholder is found in violation of its obligation.

61. The legal regime also provides for raising publicawareness and increased public participation inthe prevention, combating and mitigation of forestfires. It further provides for notification of andcooperation with countries that are affected by theconsequences of forest fires in Indonesia.

IV. The 2002 ASEAN Agreement

62. The 2002 ASEAN Agreement entered into force in2003. Its objective is to prevent and monitortransboundary haze pollution as a result of landand forest fires within the context of sustainabledevelopment, Principle 2 and 15, theprecautionary principle of the Rio Declaration.Parties to the 2002 ASEAN Agreement undertake tomanage their natural resources, including forests,in an ecologically sound and sustainable mannerand to involve local communities in addressing theissue of transboundary haze pollution.

63. Specifically, the 2002 ASEAN Agreement commitsits parties to:

• Cooperate in developing and implementingmeasures to prevent, monitor, and mitigatetransboundary haze pollution by controllingsources of land and/or forest fires;

• Establish early warning systems;• Exchange information and technology;• Provide mutual assistance;• Respond promptly to requests for relevant

information sought by a state or states that areor may be affected by such transboundary hazepollution when the transboundary hazepollution originates from within their territories;and

• Take legal and administrative measures toimplement their obligations under the 2002ASEAN Agreement.

64. The parties to the 2002 ASEAN Agreement alsofacilitate the transit of personnel, equipment, andmaterials used in fire-fighting and participate insearch and rescue operations through theirrespective territories.

65. The parties have to set up focal points andcompetent authorities that are entitled to act onbehalf of the party in carrying out theadministrative measures required by the 2002ASEAN Agreement. Furthermore, each party isrequired to install a national monitoring centre,which communicates data about fires, fire prone

areas, environmental conditions conductive to fireand data about haze pollution resulting from suchfires.

66. The 2002 ASEAN Agreement requires the supportof all members before direct action can be taken ona regional threat. This is to ensure that activitiesavoid violating an individual member country’snational sovereignty. Firefighters or other personnelmay respond to forest fires in a second country onlyif requested to do so by the government affected.Responsibility for protecting resources thus remainsat a national level.

67. A Conference of the Parties (“COP”) and aSecretariat were created under the 2002 ASEANAgreement. The COP is responsible for reviewingand evaluating the Agreement’s implementationand adopts protocols and amendments. TheSecretariat arranges the meetings of the bodiesestablished under the Agreement and acts as aninterface between these bodies and the membercountries. The existing ASEAN Secretariat serves asthe Secretariat to the 2002 ASEAN Agreement.

68. The 2002 ASEAN Agreement further establishes theASEAN Coordinating Centre for TransboundaryHaze Pollution Control (“Coordinating Centre”),which facilitates cooperation and coordination tomanage land and forest fires, in particular hazepollution arising from such fires. The CoordinatingCentre provides assistance upon the request of asignatory nation once it has declared an emergencysituation.

69. The ASEAN Transboundary Haze Pollution ControlFund (“Haze Fund”) is the 2002 ASEANAgreement’s main financial institution.Contributions to the Haze Fund are voluntary.Pending the establishment of the CoordinatingCentre, the 2002 ASEAN Agreement’s signatorystates have agreed on a set of interim arrangements,which rely on existing institutions and resources.

Prof. Alexandre Kiss, Director of Research, Centrefor Environmental Law, Robert SchumanUniversity, France

Eva Maria Duer, Associate Legal Expert, Division ofPolicy Development and Law, UNEP

Resources

Internet Materials

1994 SULFUR PROTOCOL, SUBMISSIONS BY PARTIES available athttp://www.unece.org/env/documents/2002/eb/eb.air.2002.1.q.18-27.pdf

1998 PROTOCOL ON HEAVY METALS, SUBMISSIONS BY PARTIES available athttp://www.unece.org/env/documents/2002/eb/eb.air.2002.1.q.28-36.pdf

ACID RAIN IN EUROPE: BACKGROUND INFORMATION available at http://greennature.com/

ASEAN AGREEMENT ON TRANSBOUNDARY HAZE POLLUTION available at http://www.haze-online.or.id

CONVENTION ON LONG RANGE TRANSBOUNDARY AIR POLLUTION available at http://www.unece.org/env/lrtap/

ENCYCLOPEDIA OF ATMOSPHERIC ENVIRONMENT, ATMOSPHERE, CLIMATE & ENVIRONMENT INFORMATION PROGRAMME - ACID RAIN

available at http://www.doc.mmu.ac.uk/aric/eae/english.html

EUROPEAN STATISTICAL LABORATORY, THE PRESSURE INDICES PROJECT: INTRODUCTION TO THE POLICY FIELDS – AIR POLLUTION

available at http://esl.jrc.it/envind/pf_intro/pf_int01.htm

HAZE ONLINE available at http://www.haze-online.or.id/

SPECIAL REPORT ON FOREST FIRE AND HAZE SITUATION IN INDONESIA AND ACTION TAKEN available athttp://www.aseansec.org/9003.htm

Text Material

TRAIL SMELTER ARBITRATION, (United States v. Canada, 3 R. Int'l Arb. Awards 1911, 1938).

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101

OZONE DEPLETIONChapter 9

9. OZONE DEPLETION

I. Introduction

1. The Earth’s atmosphere is composed of threeregions: the troposphere, which extends up toabout ten kilometres from the Earth’s surface; thestratosphere, which is found betweenapproximately ten and fifty kilometres from theEarth’s surface; and the ionosphere, which extendsup to 350 kilometres from Earth.

2. Ozone, which has the chemical formula of “O3,”is a molecule composed of oxygen and is foundmainly in two regions of the Earth's atmosphere.Most ozone (approximately 90%) is found in thestratosphere. This stratospheric ozone is commonlyknown as the “ozone layer.” The remaining ozoneis contained in the troposphere, also known assurface-level ozone.

3. The amount of ozone present in the Earth’satmosphere has critical implications for theenvironment, human health and nationaleconomies. Since not one country can controlozone depletion, it is an important issue ininternational environmental law.

4. The ozone molecules in the two regions above arechemically identical; however, they have differentsources and their effects are very different onhumans and other living beings.

5. Surface-level ozone is a result of chemicalreactions involving emissions from vehicles,industrial pollution and sunlight. Because ozonereacts strongly with other molecules, high levels ofozone are toxic to living systems. Several studieshave documented the harmful effects of ozone oncrop cultivation, forest growth and human health.Low-lying ozone is a key component ofphotochemical smog, a common problem in manycities around the world. Higher amounts of surfacelevel ozone are increasingly being observed inrural areas as well.

6. Stratospheric ozone, in contrast, plays a highlybeneficial role. It absorbs most of the sun’sbiologically damaging ultraviolet radiation andonly allows a small amount to reach the Earth'ssurface. The ozone layer screens out almost all theharmful ultraviolet rays of the sun and thus can bedescribed as our planet’s sunscreen.

7. During the 1970s, scientists observed a significantdestruction of ozone in the stratosphere. Theemergence of evidence peaked in 1985, when alarge “ozone hole” was discovered aboveAntarctica. This has reappeared annually duringthe springtime, generally growing larger anddeeper each year. In 1992, ozone over Antarcticahad depleted by 60% from previous observations;and the size of the hole had increased, coveringtwenty-three million square miles. The overalldecline in stratospheric ozone levels was estimatedat 3% per decade. By the mid-1990s, ozonedepletion extended over latitudes including NorthAmerica, Europe, Asia, and much of Africa,Australia and South America. Thus, ozonedepletion had become an issue of global concern.

8. Scientific evidence has shown that humanproduced chemicals are responsible for theobserved depletions of the ozone layer. Thesechemicals are used in solvents, foam, aerosol,mobile air conditioning, refrigeration and fireprotection and contain various combinations ofchemical elements, of which chlorofluorocarbons(“CFCs”) are most prominent.

9. CFCs are so stable that only exposure to strongultraviolet (“UV”) radiation breaks them down.When this happens, the CFC molecule releasesatomic chlorine. One chlorine atom can destroyover 100,000 ozone molecules, depleting ozonefaster than it is naturally created. Chlorine thatreaches the stratosphere is also produced bynatural occurrences such as volcanic eruptions orlarge fires, with high concentrations of chlorinefluctuate. It has been shown, however, that naturalsources only create approximately 15% of chlorinein the stratosphere and thus have minimal impacton the depletion of the ozone layer.

10. Protecting the ozone layer, the Earth’s protectivescreen against ultraviolet radiation, is essential.Any damage to the ozone layer leads to increasedUV radiation reaching the Earth’s surface. This cancause a variety of human health problems such asskin cancers, eye cataracts and a reduction in thebody’s immunity to disease. A 1% decrease inozone would lead to about a 4% increase of skincancer and 100,000 to 150,000 additional cases ofcataract blindness. Ultraviolet radiation can alsoaffect plant life, damage forests and certainvarieties of crops including rice and soya.Ultraviolet radiation can be damaging tomicroscopic life in the surface oceans (such asplankton, fish larvae, shrimp, crab, and aquaticplants) that form the basis of the world’s marinefood chain.

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11. Several methods have been investigated regardingthe replacement of ozone lost in the stratosphere,starting with options such as shipping low-levelozone out of smog burdened cities or producingnew ozone and introducing it into the stratosphere.Since ozone reacts strongly with other molecules,however, it is too unstable, expensive andimpractical to transport into the stratosphere.Therefore, the only cure to the problem of ozonedepletion is to regulate and eliminate theproduction of CFCs and other ozone-depletingsubstances.


1. The 1985 Vienna Convention for the Protection ofthe Ozone Layer

12. 1975, the World Meteorological Organization(“WMO”) conducted the first internationalassessment of the global ozone situation. Thealarming results demonstrated a need for swiftresponse and led to the creation of a Plan of Actionon the Ozone Layer, a result of the collaborationbetween UNEP and WMO. In 1981, UNEPinitiated negotiations of a Global FrameworkConvention for the Protection of the Ozone Layer.

13. Since the impact of ozone depleting substancesaffects all states, a regime would likely only work ifit was global in scope. In order to achieve globaladherence to the treaty, the interests of differentStates had to be reconciled during the negotiationprocess. Developing countries feared thatconstraints on producing certain ozone-depletingsubstances might inhibit their industrialdevelopment. Countries with industries heavilyrelying on ozone-depleting substances, like thoseof the European Community, were reluctant toaccept the high costs associated with measures thatregulate production and consumption of thesesubstances. Some states resisted costly measuresand controls, arguing that harmful effects had notbeen proven. However, countries which hadalready reduced production and consumption ofCFCs did not want to see others using them inrefrigerators and sprays.

14. The Vienna Convention for the Protection of theOzone Layer, 1985 (“Vienna Convention”) wasadopted after consensus was reached on 22 March1985. The overall objective of the ViennaConvention is to protect human health and theenvironment against the effects of ozone depletion.As a framework convention, it does not establishany specific controls on ozone depletingsubstances. Instead, it establishes a general

obligation upon the parties to protect the ozonelayer (article 2) and emphasizes the need forinternational cooperation.

15. The Vienna Convention requires parties to take“appropriate measures” against the adverse effectsof human made ozone depletion. These measuresinclude the adoption of legislative andadministrative measures, cooperation on researchand scientific assessment, information exchangeand development and transfer of technology.

16. The Convention provides for the creation of aConference of the Parties (“COP”), meeting atregular intervals, and a Secretariat. The COPreviews implementation of the Convention andestablishes the necessary programmes and policies.It is the body that amends the Convention andadopts new protocols and annexes. The Secretariatorganizes and services meetings, prepares andtransmits reports on countries and theirimplementation measures and ensurescoordination with other relevant internationalbodies.

17. The Convention does not impose many concreteobligations nor does it enumerate any substancesthat these measures might relate to. Rather, itestablishes a framework that needs to be filled inthrough further action. However, it was the firstconvention to acknowledge the need forpreventive action before firm proof of the actualharmfulness of ozone depleting substances wasestablished. Thus, it remains an important indicatorof the emergence of the precautionary principle orapproach.

2. The 1987 Montreal Protocol on Substances that

deplete the Ozone Layer

18. In light of the necessity for more concrete actionunder the Vienna Convention, countriesreconvened in Montreal in 1987 to adopt aprotocol regarding the phase out of ozonedepleting substances (“Montreal Protocol”).During the negotiations of the Montreal Protocol,three issues were of major importance. First, broadadherence to the Montreal Protocol was essentialand there was considerable concern about thefinancial abilities of developing countries toimplement the Montreal Protocol. Second, theMontreal Protocol needed to be drafted in aflexible way in order to timely adjust to newscientific evidence and to the changing needs of itsparties. The third issue was to determine aneconomically feasible and detailed time schedulefor the phase out of ozone depleting substances.

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19. The Montreal Protocol on Substances that depletethe Ozone Layer is a significant milestone ininternational environmental law. It establishes firmtargets for reducing and eventually eliminatingconsumption and production of a range of ozonedepleting substances. These substances areenumerated in Annexes A-E to the Protocol and areto be phased out within the schedules given inarticles 2A-2I. The Montreal Protocol controls bothconsumption and production of ozone depletingsubstances in order to protect the interests ofproducers and importers, who otherwise wouldhave had to sustain high price inflation oroverproduction during the phase out period of thetargeted gases.

20. The Montreal Protocol includes special provisionsfor the needs of developing countries. It takes intoaccount that developing countries have hardlycontributed to ozone depletion and thus providesfor a ten year delay for developing countries inphasing out of production and consumption. Thisexemption is granted under article 5 of theProtocol, which applies to developing countriesand countries whose annual calculated level ofconsumption of the controlled substances in AnnexA is less than 0.3 kilograms per capita on the dateof the entry into force of the Montreal Protocol orany time thereafter until 1 January 1999.Furthermore, new financial and technicalincentives were adopted to encourage developingcountries to switch as quickly as possible toalternative substances and technologies.

21. The Montreal Protocol further attempts to addressthe problem of trade with countries that are not yetparties to the agreement (“non-parties”). It banstrade in controlled substances with non-partiesunless they are found by the Meeting of the Parties(“MOP”) to be in compliance with the Protocol’sagreements. Furthermore, the parties mustdiscourage the export of CFC productiontechnology. Despite the fact that the MontrealProtocol bans export and import of ozonedepleting substances, it remains compatible withthe General Agreement on Tariffs and Trade(“GATT”). Article XX (b and g) of GATT allowstrade restriction in support of environmental goalsand health measures as long as they are notdisguised restrictions to trade or applied in adiscriminative manner.

22. In the light of new scientific evidence it soonbecame apparent that the standards adopted inwere insufficient to reduce ozone depletion.Therefore, amendments were adopted thatincorporated additional substances into theAnnexes and provided for a more stringent

timetable. At the Second MOP in London in 1990,restrictions on CFCs and halons were made morestringent, and two new substances,tetrachloromethane and 1,1,1,-trichloroethanewere included. 179 countries have ratified (as ofSeptember 2005) the 1990 London Amendment tothe Montreal Protocol.

23. At the Fourth MOP in Copenhagen in 1992,restrictions on CFCs, halons, tetrachloromethaneand 1,1,1,-trichloroethane were madeconsiderably more stringent. In addition HCFCs,HBFCs and methyl bromide were included in thelist of controlled substances with phase out dates.168 parties (as of September 2005) have ratified the1992 Copenhagen Amendment to the MontrealProtocol.

24. In 1997, the parties adopted the MontrealAmendment, deciding to advance the phase outdate of methylbromide for the industrial countriesfrom 2010 to 2005. Also, in order to assist theparties in preventing illegal traffic of controlledsubstances, the parties were now required toestablish and implement a system for licensing theimport and export of ozone-depleting substances.135 parties (as of September 2005) have ratified the1997 Montreal Amendment to the MontrealProtocol.

25. After intensive negotiations at the twelfth meetingof the parties in Beijing in 1999, the parties agreedto include production control ofhydrochloroflurocarbons (HCFCs) for industrial aswell as developing countries, (“BeijingAmendment”). A new ozone depleting substance,bromochloromethane was added to the Protocoland was to be phased out by 2002. The BeijingAmendment also establishes a ban on trade ofimports and exports in HCFCs with countries thathave not yet ratified the 1992 CopenhagenAmendment to the 1987 Montreal Protocol. 98parties (as of September 2005) have ratified the1999 Beijing Amendment to the MontrealProtocol.

a) Institutions

26. To ensure its effective implementation, severalbodies have been established under the 1987Montreal Protocol. The MOP must keep theProtocol’s implementation under continuousreview. It is the organ that adopts amendments tothe Protocol, makes adjustments in time schedulesand additions to or removal from any Annex ofsubstances. The MOP must consider and undertakeany additional action that may be required for theachievement of the purposes of this Protocol.

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27. In order to further secure the flexibility of theProtocol in relation to ongoing scientific researchdecisions, the MOP may make further adjustmentsin the time schedule or evaluation of ozone-depleting substances. Such decisions should betaken by consensus. However, if after exhaustion ofall efforts consensus cannot be reached, a two-thirds majority of the parties can take this decision,which is binding even on those parties that votedagainst it. To maintain an equitable balancebetween developed and developing states, thesedecisions must be supported by separate majoritiesof both groups. The same rule applies to decisionsconcerning financial mechanisms.

28. The Vienna Convention and the Montreal Protocolshare the same Secretariat, called the OzoneSecretariat, based in Nairobi, Kenya.

b) The Multilateral Fund, its Executive Committee andSecretariat

29. A Multilateral Fund was established by a decisionof the Second MOP to the Montreal Protocol inJune 1990, and began its operation in 1991. Itsaim is to promote technology transfer and technicalcooperation. Due to this regime (article 10),developing countries should no longer need to relyon the ten-year delay for the phase out greenhousegases provided for in article 5 and thus can complywith the Protocol’s provisions at an earlier stage.The Multilateral Fund is financed by non-article 5parties, which are mainly industrialized countries.Thus the Montreal Protocol can be seen as toeffectively implement the concept of common butdifferentiated responsibilities.

Substance Industrial Countries’ Reduction (%) Developing Countries’Reduction (%)

CFCs 100% in 1996 0% in 199920% in 200350% in 200585% in 2007100% in 2010

Halons 100% in 1994 0% in 200250% in 2005100% in 2010

Carbon tetrachloride 100% in 1996 85% in 2005100% in 2010

1,1,1,-trichloroethane 100% in 1996 0% in 200330% in 200570% in 2010100% in 2015

HBFCs 100% in 1996 100% in 1996

HCFCs 0% in 1996 0% in 201635% in 2004 100% in 204065% in 201090% in 201599,5% in 2010100% in 2030

Methyl bromide 0% in 1995 0% in 200225% in 1999 20% in 200550% in 2001 100% in 201570% in 2003100% in 2005

Bromochloromethane 100% in 2002 100% in 2002

1987 Montreal Protocol’s “Phase-Out” Timetable

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30. The Fund is administered by the ExecutiveCommittee, which consists of seven partiesoperating under article 5 and seven parties fromdeveloped countries. The Committee develops theplan and budget of the Multilateral Fund andmonitors expenditures incurred under the Fund. Itmust determine criteria and conditions for fundingand review the performance reports on theimplementation of the Protocol, as far as these aresupported by the Fund. The Committee meets atleast twice a year in Montreal.

31. The Fund Secretariat was established in 1991 inMontreal and assists the Executive Committee incarrying out its functions. Its activities include thedevelopment of the three year plan and budget, themanagement of the business planning cycle, andmonitoring the expenditures and activities of theimplementing agencies.

32. Four international agencies have contractualagreements with the Executive Committee to assistarticle 5 countries by preparing countryprogrammes, feasibility studies and projectproposals. They provide technical assistance forproject development and implementation and forinformation dissemination. These agencies are theUnited Nations Development Programme

(“UNDP”), the United Nations EnvironmentProgramme (“UNEP”), the United NationsIndustrial Development Organization (“UNIDO”)and the World Bank. Additionally, severaldeveloped countries also provide similar assistanceon a bilateral basis.

33. In 2002, approximately 100 governments agreedon a major funding package that will channelhundreds of millions of US dollars to developingcountries so they can reduce their reliance on CFCsand other ozone-depleting substances and meettheir phase out targets. The table below shows thetimetable for article 5 countries in relation toozone-depleting substances.

c) Non-Compliance Procedure

34. The Montreal Protocol’s formal non-complianceprocedure was introduced by the CopenhagenAmendment. It attempts to bring non-complyingstates into compliance by engaging them in acooperative manner.

35. The formal non-compliance procedure can beinvoked by any party to the Protocol, by theSecretariat or by the party itself. The matter is thenreferred to the Implementation Committee. This

SUBSTANCE

Annex A, Group I Chlorofluorocarbons (CFCs)

Annex A, Group II (Halons)

Annex B, Group I (Other fullyhalogenated CFCs)

Annex B, Group II (CarbonTetrachloride)

Annex B, Group III (MethylChloroform)

YEAR

1.1.19991.1.20051.1.20071.1.2010

1.1.20021.1.20051.1.2010

1.1.20031.1.20071.1.2010

1.1.20051.1.2010

1.1.20031.1.20051.1.20101.1.2015

CONTROL MEASURE

Base Level: Average of 1995 – 1997

Freeze both production and consumption levels50% reduction85% reduction100% phase out (with possible essential use exemptions)Base level: Average of 1995-1997Freeze both production and consumption50% reduction100% phase out (with possible essential use exemptions)Base level: Average of 1998-2000

20% reduction85% reduction100% phase out (with possible essential use exemptions)Base Level: Average of 1998-2000

85% reduction100% phase out (with possible essential use exemptions)

Base Level: Average of 1998-2000Freeze both production and consumption30% reduction70% reduction100% phase out (with possible essential use exemptions)

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Implementation Committee consists of ten partieselected on the basis of equitable geographicalrepresentation. The Implementation Committeeconsiders information and observations submittedto it with a view to securing an amicable solution.A report is then submitted to the MOP, which thendecides which measures should be taken to bringabout full compliance. Such measures can includefinancial, technical or training assistance. If thesemeasures are insufficient, cautions can be issued.As a last resort, rights and privileges under theMontreal Protocol can be suspended. Developingcountries, for instance, could lose their article 5status if they fail to fulfil their reportingrequirements.

36. The MOP also decides on appropriate action incase a developing country informs the Secretariatthat it is not able to implement the protocol due tothe failure of developed countries to providefinancial or technological support. As seen at thedescription of the Multilateral Fund, financialsupport provided by developed countries is anessential tool to induce compliance in developingcountries and reflects the concept of common butdifferentiated responsibilities.

37. The international ozone regime has beensuccessful in several ways. The Vienna Conventionhas currently (September 2005) 190 parties and theMontreal Protocol has 189 parties, includingBrazil, China, the European Community, India,Russia and the United States. The amendments tothe Protocol, together with the availability offinancial means, have helped to ensure very highparticipation among developed countries. Second,the regime has operated in a dynamic and flexibleway. Controls on ozone depleting substances werestrengthened in 1990, 1992, 1997 and 1999, andnew substances have been added. Third, since theformal non-compliance procedure has beensuccessful, compliance in developed countries hasbeen very high. Most importantly, the flexiblecompliance mechanism of the Montreal Protocol isoften considered to be a role model inenvironmental agreements.

38. There seems to be an evident need to coordinatethe Ozone Regime with the Climate ChangeRegime, since some of the substitute substances toozone-depleting gases are classified as greenhousegases under the 1997 Kyoto Protocol to the UnitedNations Framework Convention on ClimateChange (“UNFCCC”). For more discussion ofglobal climate change issues see chapter 10 herein.It should be noted, however, that the ViennaConvention and the Montreal Protocol haveprovided one of the most sophisticated andeffective models of international environmentalregulation. If the Montreal Protocol is fully adheredto, global ozone losses will be eradicated and theAntarctic ozone hole will have recovered byapproximately 2045.


1. Malaysia

39. To oversee the implementation of its nationalaction plan, the Government of Malaysia created aNational Steering Committee for Environment andDevelopment (“NSCED”), which paved the way forMalaysia's ratification in 1989. The NSCED iscomprised of a Technical Committee and IndustrialWorking Groups on solvents, foam, aerosol,mobile air conditioning, refrigeration and fireprotection. Other IWGs were established later tokeep pace with the Protocol's amendments. In1996, the Department of the Environment createdthe Ozone Protection Unit (“OPU”) to serve as thefocal point and monitor Malaysia's phase-outactivities.

40. A key feature of Malaysia's response andimplementation strategy is the concept ofintegrated stakeholder partnership with theindustrial sector. Active involvement of CivilSociety and Non Governmental Organizations alsocontributed greatly to the success of implementingthe Action Plan. The Department of theEnvironment has initiated various activities duringthe phase-out process with IWGs, manufacturers,suppliers and users.

SUBSTANCE

Annex C, Group IHydrochlorofluorocarbons (HCFCs)

YEAR

1.1.20161.1.2040

CONTROL MEASURE

Base Level Consumption: 2015 consumption Base Level Production: average of production andconsumption in 2015Freeze both production and consumption100% phase out

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41. Although Malaysia fell under article 5(1) of theProtocol, which extended a grace period of tenyears to developing countries to meet internationalcommitments, the government pursued a proactivestrategy to reduce and limit the use of thecontrolled substances ahead of schedule.

42. Based on the work of the Industrial WorkingGroups, Malaysia submitted its original CountryProgramme and the Action Plan to phase outozone depleting substances to the ExecutiveCommittee of the Multilateral Fund in December1991. The plan aimed to progressively reduce theconsumption of ozone depleting substances ineach sector by 2000 through multiple means.These means included control measures likeenforcement of the Customs Duties Order,incentives like exemption of import taxes on ozonedepleting substances recycling machines,partnerships for awareness activities, road showsand training, as well as project implementation andmonitoring.

43. As a result of its proactive approach and financingthrough the Multilateral Fund, Malaysia succeededin phasing out more than 50% of CFCs and halonin its manufacturing sector by 2000. Thus, it met itobligations well in advance of the timetable of the1987 Montreal Protocol for article 5(1) countries.At the end of 1999, 121 projects and activities forphasing-out CFCs were financed through theMultilateral Fund, totalling US $30.7 million.Malaysia has also ratified the London,Copenhagen, Montreal and Beijing Amendmentsto the Montreal Protocol.

44. Malaysia’s Environmental Quality Order 1993 (i.e.,Prohibition on the Use of Chlorofluorocarbons andother cases as Propellants and Blowing Agents)(“Order”) prohibits by various dates commencing 1June, 1994 to 1999, the use of specified ozonedepleting substances, in the following processes:

• As propellant in the manufacture or trade of aerosols, and portable fire extinguishers;

• As propellant in any manufacturing process,trade or industry of aerosol in certainpharmaceutical products; and

• As a blowing agent in any manufacturingprocess (subject to later deadlines applicable topolystyrene foam, thermoformed plasticpackaging and molded flexible polyurethanefoam).

45. The Order also prohibits, from 1999, the use ofcombustible petroleum gas or other combustiblegas as propellant in any manufacturing process.

46. The administering authority can waive theprohibitions on using controlled substances andcombustible petroleum or other combustible gas

(as applicable), where satisfied that the use of therelevant substance is essential for human health orsafety, and an alternative to the substance isunavailable. The Customs Order 1988 (Prohibitionof Imports), amended by the Customs Order 1994(Amendment No. 4), also prohibits the import ofchlorofluorocarbons listed in Annex A to the 1987Montreal Protocol on Substances that deplete theOzone Layer, without an import licence.

47. Malaysia has received various awards over the pastseveral years for its exceptionally successfulimplementation of the 1987 Montreal Protocol’sCFC phase-out. The example can be applied toother countries with different levels ofdevelopment and sociocultural contexts. Malaysiahas also shared its experience with other countries,including China, Indonesia, Egypt and Kazakhstan.One of the essential ingredients for success hasbeen Malaysia's commitment to internationalcooperation and assistance.

2. Canada

48. As one of the early signatories to the 1987 MontrealProtocol, Canada ratified it in June 1988. Thecountry has since made significant progress inreducing the emissions of ozone-depletingsubstances. Canada implemented the 1987Montreal Protocol through strong control measuresby federal, provincial and territorial governments,changes in technologies and voluntary actions byindustry.

49. Canada has adopted regulations to meet itsMontreal Protocol commitments. The Ozone-Depleting Substances Regulations (1998) andsubsequent amendments are administered underthe Canadian Environmental Protection Act (1999).These regulations control the import, manufacture,use, sale and export of ODS. They require gradualreductions of production and import of thesesubstances according to fixed schedule establishedby the Montreal Protocol.

50. As part of the ongoing process to fulfil itscommitments under the Montreal Protocol,Canada has adopted the Strategy to accelerate thePhase-Out of CFC and Halon Uses and to disposeof the Surplus Stocks (Phase-Out Strategy), whichwas approved in May 2001.

51. There are two separate components of the Phase-Out Strategy. The first is general in nature andprovides the “infrastructure” needed to achieve theobjectives of the Phase-Out Strategy, whichconsists of extended producer responsibilityprogrammes, consideration of market forceinstruments and communication of information tostakeholders. The second component of the Phase-

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Out Strategy consists of specific phase-outapproaches for individual industry sectors. Thesephase-out approaches will become regulatoryrequirements once the federal, provincial andterritorial governments adopt regulations toimplement the Phase-Out Strategy.

52. A summary of the sector-specific approaches for airconditioning and refrigeration applications isprovided in the following table:

53. Canada has developed and implemented aNational Action Plan (“NAP”) for theEnvironmental Control of Ozone-DepletingSubstances and their Halocarbon Alternatives toensure that a national framework for theimplementation of Canada's ozone layerprotection program is realized. The NAP identifiestasks necessary to ensure that consistent,progressive actions take place to control all aspectsof pollution prevention and all industry sectorsusing ozone-depleting substances and theirhalocarbon alternatives (HFCs and PFCs). TheNAP was updated and approved by the CanadianCouncil of Ministers of the Environment in May2001 to reflect the status of previous tasks andidentify new tasks for the implementation of thePhase-Out Strategy. These new tasks include:

• Encouraging industry to develop ExtendedProducer Responsibility programmes andparticipate in their development;

• Developing and implementing controlmeasures needed to support the extendedproducer responsibility programmes;

• Developing awareness programmes to informstakeholders of the Phase-Out Strategy;

• Ensuring that control measures developed toimplement the Phase-Out Strategy form a clearand comprehensive backdrop amongjurisdictions; and,

• Implementing the sector specific controlmeasures and other activities identified in thePhase-Out Strategy.

54. As part of the regulatory development process,amendments (SOR/2002-100) to the Ozone-Depleting Substances Regulations were published

by the Minister of Environment in March 2002.These amendments:

• Abolish the current exemption for both humanand animal health care products; and

• Establish a phase-out schedule for CFC inhalers.

55. More than 95% of commercial and residential airconditioning units and more than 50% ofcommercial refrigeration equipment in Canadaoperate on hydrochlorofluorocarbons (“HCFC”)refrigerants (primarily R-22). Many commercialrefrigeration units were converted to HCFCs fromCFCs. By 1 January 2010, 65% of HCFCrefrigerants currently imported into andmanufactured in Canada on an annual basis will beeliminated from the supply chain and no HCFC-22(“R-22”) equipment will be manufactured in orimported into Canada. These importantenvironmental steps could create significantservice and maintenance issues for the refrigerationand air conditioning industry and their customers.Canada has adopted a phase-out schedule forHCFCs based on the terms of the 1987 MontrealProtocol. (See table on the following page).

Sector Approach

Mobile Air Conditioning Prohibit refill with CFCs as soon as possible.

Mobile Refrigeration Prohibit refill with CFCs effective 2003.

Household Appliances Enhance implementation of existing recovery programmes. If necessary, add a ban on converting equipment using CFCs.

Commercial Refrigeration and Staged CFC refill ban effective by year: Air Conditioning equipment < 5 HP: 2004

equipment 5 - 30 HP: 2005 equipment > 30 HP: 2006

Chillers Limit releases from low pressure purges to less than 0.1 kg/kg air effective 2003. Requireconversion or replacement of CFC-containing chillers at next overhaul effective 2005.

3. South Africa

56. South Africa signed the Montreal Protocol in 1990,the 1990 London Amendment in 1992 and the1992 Copenhagen Amendment in 2001. To date,South Africa has phased out CFCs, halons, methylchloroform and carbon tetrachloride, the onlydeveloping country in the world that has achievedso much and in line with the phase-out schedule.Although South Africa is classified as a developingcountry, its consumption of these substances isequal to some of the developed countries. For thisreason, South Africa did not hesitate to complywith the requirements of the Montreal Protocol.The following control measures constitute theoverall position of South Africa on the MontrealProtocol:

• Working Groups were constituted under aneutral chairmanship to assist the governmentto implement the Montreal Protocol;

• Regulated ODS’s can only be imported orexported after having obtained an import/exportpermit through the Department of Trade andIndustry under their Import and Export ControlAct, Act 45 of 1963;

• As a disincentive for the use of regulated ODS’s,they could only be imported after anenvironmental levy of R5, 00 per kg of CFC,was paid;

• Dissemination of information to interested andaffected parties is managed and controlled; and

• Contributions to Africa Networking Meetings,as arranged by UNEP, towards improvementand cooperation within the region, wereestablished.

57. South Africa’s National Committee on OzoneLayer Protection (“NCOLP”) was created to advisethe Department of Environmental Affairs andTourism on matters relating to nationalresponsibilities with respect to ozone layerprotection, including monitoring and verificationprocess or issues of implementation and adherenceto the Vienna Convention and the 1987 MontrealProtocol and its Amendments, of which SouthAfrica is signatory. Its purpose is also to promoteeducation, training and awareness on ozone layerprotection issues.

58. The NCOLP’s functions include:

• Making recommendations to the Departmenton issues related to ozone layer protection andalso to express the concerns of keystakeholders;

• Designing and participating in a process leadingto the formulation and implementation of anational ozone layer protection strategies;

• Ensuring a structured process of capacitybuilding;

• Assisting with coordination and exchange ofinformation regarding the national activities;

• Assisting with the enhancement of the nationalawareness of this important environmentalissues;

• Addressing the legislation to be in relation toozone depleting substances; and

• Promoting objectives of NEPAD in relation tothe ozone layer protection.

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Canada’s Ozone Compliance Schedule

Date Activity

Jan. 1, 1996 baseline annual allowable amount of HCFCs based on Montreal Protocol

Jan. 1, 2004 annual allowable amount of HCFCs reduced by 35%


Jan. 1, 2010 no new R-22 equipment manufactured or imported


Jan. 1, 2020 annual allowable amount of HCFCs reduced by 99.5% except HCFC-123, which can be imported ormanufactured until 2030 to service large air conditioning units (chillers) under the remaining 0.5% allowance. No new HCFC equipment to be manufactured or imported.

Jan. 1, 2030 HCFCs no longer permitted to be imported or manufactured

59. The NCOLP consists of many importantstakeholder groups, including the nationalgovernment, business and industry, labour, NGOs,academic institutions, scientists and the SouthAfrican Weather Services. The group meets fourtimes per year, unless additional meetings areurgently needed.

Prof. Alexandre Kiss, Director of Research, Centrefor Environmental Law, Robert SchumanUniversity, France


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Resources

Internet Materials

ENCYCLOPEDIA OF ATMOSPHERIC ENVIRONMENT, OZONE DEPLETION available athttp://www.doc.mmu.ac.uk/aric/eae/english.html

ENVIRONMENT CANADA STRATOSPHERIC OZONE WEB SITE available at http://www.ec.gc.ca/ozone/EN/index.cfm

INTEGRATING ENVIRONMENTAL CONSIDERATIONS INTO ECONOMIC POLICY MAKING PROCESSES ESCAP VIRTUAL CONFERENCE,MALAYSIA IMPLEMENTING MONTREAL PROTOCOL available athttp://www.unescap.org/drpad/vc/conference/ex_my_235_imp.htm

OZONE LAYER PROTECTION IN SOUTH AFRICA available at http://www.environment.gov.za/

OZONE SECRETARIAT available at http://www.unep.org/ozone

THE MONTREAL PROTOCOL ON SUBSTANCES THAT DEPLETE THE OZONE LAYER available athttp://www.unep.org/ozone/montreal.shtml

WHAT CAUSES OZONE DEPLETION? available at http://www.uow.edu.au/arts/sts/sbeder/HoleStory/intro/intro3.html

Text Material

Durwood Zaelke, Donald Kaniaru & Eva Kruzikova, MAKING LAW WORK ENVIRONMENTAL COMPLIANCE AND SUSTAINABLE

DEVELOPMENT, (Cameroon May, 2005). In particular Chapter 3 Multilateral Environmental Agreements in action sub3.2 Case Studies K. Madhava Sarma, Compliance with the Montreal Protocol.

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GLOBAL CLIMATE CHANGEChapter 10

10. GLOBAL CLIMATE CHANGE

I. Introduction

1. The Earth’s climate is affected by the interaction ofradiation from the sun and the Earth’s atmosphere.The atmosphere consists of nitrogen and oxygenand a number of natural greenhouse gases(including carbon dioxide, methane, nitrous oxide,ozone gas, and chlorofluorocarbons (“CFCs”)).The atmosphere and the surface of the Earth absorbpart of the sun’s radiation but the remainder isreflected back into space. The greenhouse gaseshave the important function of trapping thisradiation in the lower layers of the Earth’satmosphere. This process is called the “greenhouseeffect” without which the Earth would be as cold asthe moon. It is now understood that increasedconcentrations of greenhouse gases in theatmosphere will increase this greenhouse effectand lead to changes in the Earth’s climate.

2. Natural events can also cause changes in theclimate. For example, volcanic eruptions orvariations in ocean currents can alter thedistribution of heat and precipitation. The periodicwarming of the central and eastern Pacific Ocean(better known as the “El Niño” phenomenon) canaffect weather patterns around the world, causingheavy rains in some places and drought in others.

3. Human activities are now recognized ascontributing to climate change. During recentyears, scientists have been able to collect evidenceof changes in temperature, rainfall and otherweather variables. This data suggests that over thetwentieth century the average world temperatureincreased by 0.6º Celsius. The data alsodemonstrates an increase in the quantity ofgreenhouse gases in the atmosphere of up to 30%,especially carbon dioxide.

4. Carbon dioxide (“CO2”) is partly produced as aresult of human activities such as burning coal, oiland natural gas (“fossil fuels”), as well asagricultural activities and deforestation. CFCs andmethane are also being emitted to the atmosphereas a result of human activities. The increase in theemission of these greenhouse gases can beattributed to the general economic growth whichhas taken place since the industrial revolution,especially after the 1950s, as well as increasedlevels of consumption, including the increaseddemand for electricity and the use of cars.

5. Oceans and forests can absorb CO2 and othergreenhouse gases, and are therefore referred to asgreenhouse gas “sinks.” Deforestation, however,releases previously stored greenhouse gases, thuscontributing further to the increase of greenhousegases in the Earth’s atmosphere.

6. Most greenhouse gases remain in the atmospherefor a long period of time. This means that even ifemissions from human activities were to stopimmediately, the effects of the emissions alreadyaccumulated may persist for centuries. Though thetemperature increase over the last century has beenrelatively moderate at around 0.6º Celsius,scientists estimate that the global average surfacetemperature could rise by between 1.4º to 5.8ºCelsius over the next 100 years.

7. Such a significant increase in the average worldtemperature will lead to serious impacts on theenvironment. Climate change experts predict thatthis global warming will cause increased rainfall inmany areas, increased desertification in others, andthe loss of ice cover in the polar regions. Theaverage sea level is predicted to rise by up toeighty-eight centimetres by the end of the twenty-first century, posing a serious threat to low lyingdelta systems and small island states.

8. Global warming will also have impacts on naturalvegetation and fauna. Seasonal patterns willchange, leading to longer and hotter summers.Some species will not be able to adapt well to thischange of environment and may slowly die out.The most serious consequence is likely to be theimpacts on agriculture and thus food safety,especially due to increased water shortages.

9. While there has been some debate over the degreeto which human influenced emissions havecontributed to climate change, there is now generalconsensus that concerted action needs to be takento minimize and mitigate the problems whichglobal warming is starting to cause.


1. The Climate Change Convention Regime

10. International conferences on the phenomenon ofglobal warming were first held in the 1980s. In1988, the UN General Assembly determined that“climate change is a common concern ofmankind” which required urgent action by allstates. This initiated political negotiations, whichled to the completion of an internationalconvention regime to address the issue.

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GLOBAL CLIMATE CHANGE Chapter 10

11. Around the same time, the United NationsEnvironmental Program (“UNEP”) and the WorldMeteorological Organization (“WMO”)established and still cosponsor an independentscientific body called the Intergovernmental Panelon Climate Change (“IPCC”). This body consists ofover 2000 scientific and technical experts fromaround the world who collect scientificinformation about the causes of climate change, itspotential effects and possible ways to mitigatethese effects. The IPCC issued its First AssessmentReport in 1990, describing the likely threats ofclimate change, and subsequently produced itsSecond Assessment Report in 1995, and ThirdAssessment Report in 2001. The IPCC is currentlyworking on a Fourth Assessment Report, and itsfindings continue to inform international action tocombat climate change. This Report will becompleted in 2007.

12. The negotiation process for the climate changeregime has proved to be one of the mostchallenging in the history of MultilateralEnvironmental Agreements (“MEAs”). Mostdeveloping countries have been unwilling to takeon onerous commitments, arguing that it wasmainly the developed states which had contributedto the increase in global warming as part of theireconomic development. The tates most threatenedby the effects of global warming, such as smallisland tates, have argued for strong and effective

commitments. However, several developed stateswere concerned about the impact a firmcommitment to reducing emissions would have ontheir economies. Despite these different positions,public concern was strong enough to motivatepolitical leaders towards achieving an internationalregime to address the problem.

13. By 1992, sufficient scientific and politicalconsensus had been reached to allow 154 states tosign the United Nations Framework Convention onClimate Change (“1992 UNFCCC”)(“Convention”). Key to the Convention’scompletion was the explicit reliance on theconcept of ‘common but differentiatedresponsibilities’. This concept allowedcommitments to be fixed according to theeconomic status of each country with the resultthat, at present, only developed states andcountries with economies in transition have a fixedobligation to achieve specified emissionreductions. These countries are detailed in AnnexI of the 1992 UNFCCC (“Annex I Parties”). Incontrast, developing countries can voluntarily takeon commitments to limit emissions, but are notrequired to do so. However, all state parties to theConvention are obliged to develop nationalprogrammes in order to generally mitigate thecauses and effects of climate change. The keystages in the complex and protracted negotiationprocess are summarized below:

Key Stages in the Climate Change Convention Regime

1988 UNGA Resolution 43/53 recognizes climate change a “common concern of mankind”.

1988 UNEP and WMO establish the Intergovernmental Panel on Climate Change (“IPCC”).

1990 The UN launches negotiations on a framework convention on climate change.

1992 The United Nations Framework Convention on Climate Change is adopted in New York and opened for signature atthe Earth Summit in Rio de Janeiro, Brazil; the Convention receives 154 signatures and enters into force in 1994.

1995 The first Conference of the Parties (“COP-1”) in Berlin, Germany launches a new round of negotiations to strengthenthe targets of Annex I Parties (“Berlin Mandate”).

IPCC Second Assessment Report concludes that the balance of evidence indicates a discernable human influence onthe global climate.

1996 COP-2 in Geneva, Switzerland clarifies the scope of the Berlin Mandate.

1997 COP-3 Kyoto, Japan, adopts the Kyoto Protocol.

1998 COP-4 Buenos Aires, Argentina adopts the ‘Buenos Aires Plan of Action’ setting out a program of work on the KyotoProtocol’s operational rules and the implementation of the Convention; the deadline for achieving these rules is setfor 2000.

2000 COP-6 meets at the Hague but negotiations break down.

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2. The United Nations Framework Convention onClimate Change (“1992 UNFCCC”)

14. The objective of the 1992 UNFCCC is to tackle thenegative effects of climate change. TheConvention’s stated aim is to stabilize greenhousegas concentration at a level that allows ecosystemsto adapt naturally to climate change so that foodproduction is not threatened, while enablingeconomic development to proceed in a sustainablemanner (article 2).

15. In achieving this aim, the parties to the Conventionare to be guided by a range of principles that reflectthe understanding of global environmentalresponsibility elaborated in the Rio Declaration onEnvironment and Development and Agenda 21.These principles include inter-generational equity,the precautionary approach, the right tosustainable development and, as mentionedabove, the principle of common but differentiatedresponsibilities (article 3).

16. The Convention provides that all parties makegeneral commitments regarding:

• The establishment of national inventories ofgreenhouse gas emissions and sinks;

• The promotion of scientific and technicalcooperation;

• The sustainable management of forests, oceansand ecosystems; and

• The integration of climate changeconsiderations in national social, economicand environmental policies (article 4(1)).

17. Certain parties to 1992 UNFCCC, classified asAnnex I parties, have taken on additionalcommitments. Annex I parties includeindustrialized nations that have committed toreturn their anthropogenic emissions to 1990 levelsby 2000. To this end, the Annex I parties arerequired to adopt national policies and measures tomitigate the negative effects of climate change byboth limiting the emission of greenhouse gases andby protecting greenhouse gas sinks. However, thewording of the 1992 UNFCCC is considered to berather vague and the extent to which it represents abinding obligation has therefore been questioned(article 4(2)).

18. In meeting these commitments, parties are able totake account of their different starting points,resources, economies and other individualcircumstances. Parties may also jointly implementthe policies and measures. In order to monitor

2001 January: the IPCC Third Assessment Report is released.

March: US President George W Bush announces that the United States will not become a Party to the KyotoProtocol.

July: At the resumed session of COP-6 Parties adopt the ‘Bonn Agreements,’ a political deal on the Kyoto Protocolrules and the implementation of the Convention.

November: COP-7 in Marrakesh, Morocco adopts the ‘Marrakesh Accords,’ a set of detailed rules for the KyotoProtocol and the implementation of the Convention.

2002 The World Summit on Sustainable Development (“WSSD”) meets in Johannesburg, South Africa, to review progresssince the 1992 Earth Summit.

COP-8 in New Delhi, India, seeks to clarify the rules of the regime.

2003 At least 55 states ratify the Kyoto Protocol, but the necessary 55% of total CO2 emissions is still to be achieved, sothat the Protocol is still not in force.

COP-9 in Milan, Italy, continues to consider the rules of the regime.

2004 Russia ratifies the Kyoto Protocol, allowing the Protocol to come into force 16.02.2005.

COP-10 in Buenos Aires, Argentina.

The Convention receives 189 instruments of ratification (August 2005).

2005 Kyoto Protocol enters into force, as of August 2005 there are 155 parties.

COP-11 and COP-1 of the Kyoto Protocol take place in Montreal. A Working Group was established to discussfuture commitments for developed countries for the period after 2012.

Abbreviation: COP (Conference of the Parties, the annual meeting of Parties under the Convention).

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progress, the Parties are required to deliver reportscovering the ongoing implementation of theirpolicies and measures and their projected emissionlevels (article 12(1)). In recognition of the fact thatthese commitments are only the first step inaddressing the problem of climate change, theConvention provides for the review of theadequacy of the commitments at an early stage,and then at regular intervals (article 4(2)(d)). Thisprovision led to the further negotiations on settingthe specific emission reduction targets found in the1997 Kyoto Protocol.

19. The Conference of the Parties (“COP”) to theConvention serves as the principal supervisoryinstitution for the Convention, and meets regularlyto review the adequacy, implementation andeffectiveness of the Convention and the KyotoProtocol. The COP receives advice from theSubsidiary Body for Scientific and TechnologicalAdvice (“SBSTA”) which reviews and advises onthe state of scientific and technical knowledge(article 9), and the Supplementary Body forImplementation (“SBI”), which makesrecommendations on policy and implementationissues (article 10). A Secretariat providesorganizational support and technical expertise forthe COP negotiations, and facilitates the flow ofauthoritative information on the implementation ofthe Convention. Now that the Kyoto Protocol hasentered into force, the COP may also serve as theformal Meeting of the Parties (“MOP”) for theProtocol, referred to as the “COP/MOP”. The firstmeeting of the MOP was held together with COP-11 in November-December 2005.

a) Capacity building and financial mechanism

20. Article 4 of the Convention includes importantprovisions dealing with capacity building in orderto encourage compliance by developing countryparties. A range of measures is identified, includingthe provision of “new and additional” financialresources, the transfer of technology and supportfor national reporting. Article 4(5) of theConvention states that the developed countryparties “shall take all practicable steps to promote,facilitate and finance, as appropriate, the transferof, or access to, environmentally soundtechnologies and know-how to other Parties,particularly developing country Parties, to enablethem to implement the provisions of theConvention...”

21. The Convention’s financial mechanism, providedfor in article 11, is designed to be a major source ofsuch funding. Its role is to transfer funds andtechnology to developing countries on a grant or

concessional basis. The mechanism is guided byand accountable to the COP, which decides onpolicies, programme priorities, and eligibilitycriteria. The Convention states that the operationof the financial mechanism can be entrusted to oneor more international entities with “an equitableand balanced representation of all Parties within atransparent system of governance.” The COP hasdelegated this responsibility to the GlobalEnvironment Facility (“GEF”) (for more discussionon this see chapter 6), an independent financialinstitution which provides grants to developingcountries for environmental projects.

22. In July 2001, the COP created three new funds tofurther assist developing countries. A SpecialClimate Change Fund (“SCCF”) and a LeastDeveloped Countries Fund (“LDCF”) have beenestablished under the Convention to helpdeveloping countries adapt to climate changeimpacts, obtain clean technologies and limit thegrowth in their emissions. In addition, anAdaptation Fund was under the 1997 KyotoProtocol to finance concrete adaptation projectsand programmes. The COP would guide this Funduntil the 1997 Kyoto Protocol enters into force.The industrialized countries, listed in Annex II ofthe Protocol, also pledged to make a combinedcontribution of 450 million per year by 2005through these funds and existing avenues to helpdeveloping countries manage their emissions andadapt to climate change.

b) Compliance and Dispute Settlement

23. The Convention establishes three steps to managecompliance: reporting; review; and assessing andresponding to non-compliance. This process isoverseen by the COP. It also allows for the creationof a multilateral consultative process for the partiesto resolve questions of implementation (article 13).The compliance process has been developedunder the 1997 Kyoto Protocol, details of whichare discussed below.

24. The Convention also contains relatively standardinternational dispute settlement provisions underarticle 14, which are similar to those found underthe 1985 Vienna Convention/1987 MontrealProtocol. In the case of a dispute between any twoor more parties concerning the interpretation orapplication of the 1992 UNFCCC, the Partiesconcerned are to seek a settlement of the disputethrough negotiation or any other peaceful means oftheir own choice. Recourse can also be taken incertain circumstances to arbitration or theInternational Court of Justice.

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3. The Kyoto Protocol to the United NationsFramework Convention on Climate Change

(“1997 Kyoto Protocol”)

a) The Negotiations

25. At the first COP (“COP-1”) held in Berlin in 1995,the parties to the 1992 UNFCCC recognized that inlight of further scientific evidence (mostprominently the Second Assessment Reportreleased by the IPCC), the commitments in theConvention were “not adequate” to achieve itsgoal. The outcome of this COP provided a strongpolitical mandate (“the Berlin Mandate”) forstrengthening the commitments in the Convention,which led to the adoption of the text of the firstProtocol to the Convention at the third COP(“COP-3”) in Kyoto, in December 1997.

26. Although agreement was reached on the specificterms of the Kyoto Protocol to the United NationsFramework Convention on Climate Change (“1997Kyoto Protocol”), many crucial technical andpolitical issues were left unresolved, including, forexample, emissions trading and the use of ‘sinks’.Most countries felt they could not ratify the 1997Kyoto Protocol until these issues were settled. Afterfurther negotiations, the Buenos Aires Plan ofAction was adopted at COP-4 in 1998. This Planset out a programme of work on the 1997 KyotoProtocol operational rules and the implementationof the 1992 UNFCCC, which was scheduled forfinalization in 2000.

27. The outstanding issues continued to prove highlycontroversial, and negotiations eventually brokedown at COP-6 in the Hague. In 2001, PresidentBush officially announced that the United States,the world’s largest emitter of CO2, would not ratifythe 1997 Kyoto Protocol on the basis that it wouldbe detrimental to the country’s economy and didnot include binding emission reductions fordeveloping countries. Despite this, the negotiationprocess was reassumed and culminated in 2001,with the achievement of political agreement in theBonn Agreements, which allowed completion ofthe Marrakesh Accords later that year.

28. The Marrakesh Accords contain extensive andcomplex provisions to guide the practicalimplementation of the 1997 Kyoto Protocol. Theseprovisions cover the ‘flexible mechanisms’, theestablishment of a compliance mechanism and theelaboration of rules on permissible land-use, land-use change and forestry (“LULUCF”). TheMarrakesh Accords also consolidate matters underthe Convention relating to funding arrangementsand capacity building for developing countries.

The following description of the main aspects ofthe 1997 Kyoto Protocol therefore includesreference to the provisions of the MarrakeshAccords where appropriate.

b) Commitments

29. As intended by the Berlin Mandate, the 1997 KyotoProtocol covers the period beyond the year 2000and requires stronger commitments from Annex Iparties to achieve quantified emission reductionswithin a specific timeframe. These commitmentscover the six greenhouse gases listed in Annex A ofthe 1997 Kyoto Protocol (carbon dioxide,methane, nitrous oxide, hydrofluorocarbons,perfluorocarbons and sulphur hexafluoride), andeach Annex I party’s particular ‘quantified emissionreduction target’ is listed in Annex B. These targetsare designed to ensure that combined emissionsfrom these ‘Annex B parties’ are reduced to at least5% below 1990 levels between 2008 and 2012.However, since emission levels have risensubstantially since 1990, this measure is stillunlikely to stabilize human induced globalwarming.

30. In accordance with article 4(2) of the Convention,differentiated targets were set for Annex B partiestaking into account their particular circumstances,including for example their ability to access cleantechnology. The differentiated emission reductiontargets were based on 1990 emission levels, andrange from an 8% reduction for the EU to a 10%increase for Iceland (called “assigned amounts”).Changes in land use or forest plantations whichresult in emission reductions can also be used inprinciple to meet a party’s emission reductiontarget, provided such changes do result in a realreduction (the ‘sinks’ must become permanent).Emissions of greenhouse gases other than carbondioxide are converted to carbon dioxide-equivalent emissions by using Global WarmingPotential factors published by the IPCC.

31. All Annex B parties are obliged to makedemonstrable progress in meeting their emissionreduction targets by 2005. However, the 1997Kyoto Protocol does not actually prescribe how thetargets are to be achieved. Instead, a range ofindicative measures are proposed, such as:

• Promoting energy efficiency• Promoting renewable energy• Phasing out subsidies that contravene the

objectives of the Convention• Protecting and enhancing sinks• Promoting sustainable forms of agriculture

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32. Under Article 4 of the 1997 Kyoto Protocol, two ormore Annex B parties can jointly fulfil theircommitments by aggregating their emissions. Aslong as the total amount of emissions is within thetotal assigned amount limits of those parties as agroup, it does not matter that some members haveexceeded their individual limits.

c) The Flexible Mechanisms

33. In order to facilitate implementation of thecommitments described above, the 1997 KyotoProtocol provides for the use of an innovative set oftools, called the “flexible mechanisms,” designedto help the Annex I parties maximize the cost-efficiency of meeting their emission reductiontargets. These flexible mechanisms allow stateparties (and authorized private or public sectororganizations or businesses) to reduce emissions byundertaking projects in other countries or bytrading in emission reduction credits, and thencounting these reductions towards their ownemission reduction targets. The use of the flexiblemechanisms is subject to the condition that theemission reductions achieved are supplemental tonational action to reduce emissions. The 1997Kyoto Protocol establishes three flexiblemechanisms: Joint Implementation (“JI”), the CleanDevelopment Mechanism (“CDM”) and EmissionsTrading (“ET”).

34. Joint Implementation, as outlined in article 6,provides that one Annex I party can receive creditsfor financially supporting (and therefore jointlyimplementing) appropriate projects to reduceemissions in another Annex I party. Such projectsresult in the generation of “Emission ReductionUnits” (“ERUs”), which can be used by the firstAnnex I party to meet its own 1997 Kyoto Protocoltarget. This flexible mechanism is designed toencourage the transfer of technology and topromote energy efficiency or forest conservationschemes. However, the reductions must be‘additional’ to any that would have otherwiseoccurred and must also be supplemental todomestic action.

35. A Supervisory Committee (“SC”) will be elected atthe first COP/MOP to oversee the operation of JIprojects. Projects which started after 1 January2000 are still eligible as authorized JI projects,though valid ERUs will only be issued for theemission reductions achieved after 1 January 2008.

36. In order to be eligible to take part in a JointImplementation project, a country must:

• Be an Annex I party and a party to the 1997Kyoto Protocol;

• Have an assigned amount that has beencalculated and recorded;

• Have a national registry in place;• Have in place a national system for estimating

greenhouse gas emissions;• Have submitted annual greenhouse gas

inventory reports; and • Have submitted necessary supplementary

information on its assigned amount.

37. Following decisions taken at COP-7, there will betwo kinds of JI projects (“twin track”). Track 1covers projects where a ‘host’ party meets all the JIeligibility requirements listed above. In this case,the host country can certify the ERUs itself withoutrecourse to the Supervisory Committee. Track 2covers projects where a host party only meets thefirst three JI eligibility requirements. Here theprocedures are determined by the SC. The ERUsachieved in any JI project must be independentlycertified by approved organizations called“Independent Entities.”

38. The Clean Development Mechanism is designed toencourage emission-reduction projects that assistin achieving sustainable development indeveloping countries. Using this mechanism, anAnnex I party can invest in appropriate projects innon-Annex I parties, leading to the generation ofCertified Emission Reductions (“CERs”). The CDM,established under article 12 of the 1997 KyotoProtocol, is the only flexible mechanism open toparticipation by developing States.

39. Under the CDM, Annex I parties receive credit forachieving greenhouse gas emission reductions innon-Annex I countries through financialinvestment or technology transfer. In order toencourage a ‘prompt start’ to the CDM, CERsobtained during the period from the year 2000 upto the end of the first commitment period in 2008can be used in achieving compliance for the firstcommitment period. An Executive Board (“EB”)has been set up to oversee the operation of theCDM.

40. In order to participate in the Clean DevelopmentMechanism, a host country must have ratified the1997 Kyoto Protocol and set up a designatednational authority to oversee the approval of theproject. This national authority must decidewhether a CDM project activity contributes tosustainable development in the host country, andwhether the participants have voluntarily agreed tobe involved in the project.

41. For the Certified Emission Reductions to be valid,the project’s funding must be in addition to existing

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development aid provided by the Annex I party,and the CERs achieved by the CDM project mustbe in addition to those that would have occurredwithout the project. For this purpose, projectbaselines have to be developed, which describethe most likely course of development and thesituation that would have prevailed in the absenceof the CDM project. A project methodology(including the baseline) must be approved for eachproject. Alternatively, an existing approvedmethodology can be adopted. A list of proposedand approved CDM methodologies can be foundat the website of the UNFCCC.

42. A template for the CDM Project Design Document(“PDD”), which the project participants mustprepare to get CDM project approval, is alsoavailable at the UNFCCC website. The first CDMprojects are currently in the process of beingapproved.

43. Once prepared, the PDD must be validated by anindependent Designated Operational Entity(“DOE”), which has been accredited by the EB (andwhich in practice will usually be a financialauditing firm). The PDD must then be sent forregistration by the EB, together with confirmationfrom the host country that the project activity willassist in achieving sustainable development andthat the host country voluntarily agrees toparticipate in the project. The CDM project willthen be able to proceed, during which it must bemonitored by the project participants, and alsoindependently reviewed from time to time. At theend of the CDM project, a DOE must certify theresultant CERs by subtracting the emissionsachieved from the previously approved baselineemissions (subject to taking account of “leakage”).Once the certified CERs are verified, they can beallocated on the basis agreed between the projectparticipants and issued by the registry of the CDMto be offset against a country’s emissions reductiontarget.

44. Article 17 of the 1997 Kyoto Protocol allowsAnnex B Parties to undertake emissions tradinginternationally by buying emission reductioncredits from another Annex B country in the formof Assigned Amount Units (“AAUs”). Each AAUrepresents the “right” of that country to emit oneton of CO2 (or its equivalent in the form of othergreenhouse gases). A party that has achieved moreemission reductions than it is obliged to achieveunder its target under the 1997 Kyoto Protocol cantherefore sell the additional credits to a party thatmight otherwise fail to meet its emissions target.National entities (such as individuals orcompanies) can also participate in the trading of

emission reduction units if authorized by a stateparty.

45. In order to be eligible to participate in EmissionsTrading, parties have to fulfil the reportingrequirements. Each country is obliged to keep areserve that cannot be traded under article 17 ofthe Protocol, and should not be allowed to dropbeyond 90% of each party’s assigned amount. Anysuch trading must also be supplemental todomestic emission reduction programmes. Theoption of international emissions trading will beavailable from 2008, though action has alreadybeing taken to set up a trading system in theEuropean Union (see below).

46. A ‘sink’ stores atmospheric carbon in a carbon‘pool.’ Examples of carbon pools are forestbiomass, wood products and soils. The inclusionof carbon sinks in the 1997 Kyoto Protocol hasbeen very controversial. Article 3 of the 1997Kyoto Protocol provides that parties must countboth the sequestration (storage) and the emission ofgreenhouse gases from eligible land use changeand forestry activities (“LULUCF”), in measuringperformance towards their 1997 Kyoto Protocoltargets.

47. Only net changes from human induced activitiesrelating to afforestation, reforestation ordeforestation can be legitimately counted. Partiesare required to account for the net changes onwhich they are relying in meeting theircommitments, and must include emissions fromland use change in the baseline used forcalculating their assigned amounts. Some partieshave wanted to include additional types of sinks,but it was agreed during negotiations on the 1997Kyoto Protocol that this would have to be decidedat a later stage.

48. Further rules on LULUCF were agreed at COP-7 inMarrakesh, where a new trading unit, a RemovalUnit (“RMU”), was created specifically for sinkcredits. It will be possible to convert RMUs into,for example, Emission Reduction Units (“ERUs”).Nevertheless the serial number of each ERU willinclude information about the LULUCF activity forwhich it was issued, and this identification willremain even when the RMU is converted into anERU. General principles governing the validity ofLULUCF activities were also confirmed at COP-7,as follows:

• The assessment of LULUCF activities should bebased on ‘sound science’;

• Consistent methodologies are to be used forestimating and reporting these activities;

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• The mere presence of carbon stocks is to beexcluded from accounting, as are increasedremovals due to faster growth caused byincreasing concentrations of atmospheric CO2;

• Any reversals of LULUCF removals are to beaccounted for at the appropriate time; and

• LULUCF activities must contribute tobiodiversity conservation and the sustainableuse of natural resources.

49. The quality of greenhouse gas inventory reportingis the cornerstone of the compliance system. Thereporting rules provided under the Convention andthe 1997 Kyoto Protocol have therefore beendesigned to facilitate transparency, comparability,completeness and accuracy of information. Reviewof reported information is undertaken in two steps.First, there is a technical check conducted by theSecretariat to compile and synthesize theinformation reported by each Party. The secondstep involves an in-depth review by Expert ReviewTeams that have been set up to ensure objectivityand fairness.

50. The 1997 Kyoto Protocol draws on and enhancesthe approach to compliance adopted under theConvention. Article 18 of the 1997 Kyoto Protocolspecifically provides for the negotiation of adetailed non-compliance procedure; and in 1998,a Joint Working Group on compliance wasestablished to formulate a sufficiently robust meansof ensuring that the Protocol’s emission reductiontargets are achieved.

4. Compliance Mechanism – Compliance Committee

51. Compliance was one of the most contentiousissues at COP-7 in Marrakesh, but the partieseventually adopted compliance procedures whichrepresent the ‘teeth’ of the climate change regime.The Marrakesh Accords provide for the creation ofa new institution, the Compliance Committee,charged with promoting compliance, providingadvise and assistance to the parties, determiningcases of non-compliance and applying appropriate“consequences” for non-compliance.

52. The Compliance Committee will have twobranches; a ‘Facilitative Branch’ and a morejudicial-like ‘Enforcement Branch.’ The FacilitativeBranch will provide advise and assistance on theimplementation of the Kyoto Protocol, giving out‘early-warnings’ in cases where a party is in dangerof not complying with its emission reduction target.The Facilitative Branch will be able to makerecommendations and mobilize financial andtechnical resources to help the party comply. TheEnforcement Branch will determine whether anAnnex I party has met its emissions target,

complied with its monitoring and reportingrequirements, and met the eligibility tests forparticipation in the flexible mechanisms.

53. The compliance procedures will be triggeredprimarily by the results of the review of Parties’annual reports; and a Bureau of the ComplianceCommittee will be responsible for allocatingquestions of implementation to the appropriatebranch. The Enforcement Branch makes decisionsby double majority voting, so that majorities fromeach bloc of the members of a branch (i.e., bothAnnex I and non-Annex I parties) must approve it.Public participation in the proceedings will bepossible. If a party feels that it has been denied dueprocess during the enforcement proceedings, it canlodge an appeal with the COP/MOP.

54. When a party does not comply with the monitoringand reporting requirements of the 1997 KyotoProtocol, the Enforcement Branch can require therelevant party to submit an action plan thatincludes an analysis of the causes of non-compliance, undertake corrective measures toremedy the non-compliance, and set a timetablefor the implementation of the action plan. If anAnnex I party is not in compliance with theeligibility requirements for the Protocol’s flexiblemechanism, the Enforcement Branch will be ableto order the suspension of the Party’s eligibility toparticipate in the mechanisms until the party hasachieved compliance.

55. If an Annex I party fails to meet it emissionreduction target, the Enforcement Branch will beable to apply the following consequences:

• For every ton of emissions by which a partyexceeds its target, 1.3 tons can be deductedfrom its emissions allocation (assigned amount)for the subsequent compliance period;

• The party will have to prepare a detailed planexplaining how it will meet its reduced targetfor the subsequent compliance period; and

• The party will not be able to use internationalemissions trading to sell any of its emissionsallocation until it has demonstrated that it willbe able to comply with its current target.

56. It is clear therefore that the compliance regime ofthe 1997 Kyoto Protocol could be very hard hittingand it has certainly set a new precedent in the levelof control that could be applied to States underMultilateral Environmental Agreements (“MEAs”).

57. Per article 25 the 1997 Kyoto Protocol would enterinto force on the ninetieth day after the date thattwo conditions are fulfilled:

• Fifty-five countries have ratified the Protocol;• Sufficient Annex I countries to account for at

least fifty-five percent of the total CO2 emissionsfrom Annex I countries in 1990 have ratified theProtocol.

The ratification of Russian Federation, deposited on18 November 2004, secured that the Protocolentered into force on 16 February 2005.


58. With a detailed international regime almost inplace, it is worthwhile considering the manner inwhich the obligations in the 1992 UNFCCC andthe 1997 Kyoto Protocol are being or would beaddressed in a national context.

1. Europe

59. As mentioned above, the European Community(“EC”) has formed a “bubble” in order to fulfil therespective commitments of its member states, byaggregating their combined emissions as providedfor under article 4 of the 1997 Kyoto Protocol. TheEC joined the Convention as a party in its ownright, and has to report annually on all greenhousegas emissions within its area of jurisdiction. The ECgreenhouse gas inventory includes data for the ECas a whole (“EU15”) as well as the individualmember states, and has to be submitted annually tothe Convention Secretariat. Within the frameworkof a ‘burden sharing agreement’ concluded in1998, the member states have taken on thefollowing individual targets:

60. In combination, the target for the EU as a whole isto achieve emission reductions of 8% below 1990levels between 2008 and 2012.

Emission Trading

61. In response to article 17, the Member Statesadopted the European Union Emissions TradingScheme Directive (“EU ETS”) in July 2003. It isintended that the EU ETS will cover twenty-eightEuropean countries, including the existing fifteenEU Member States, the ten new accessioncountries as well as Norway, Liechtenstein andSwitzerland. It will be the world’s first multinationalemissions allowance trading scheme for majorCO2 emitters, and may serve as a template foremissions trading schemes covering companiesand individuals in other regions.

62. Under the EU ETS each member state will have toimpose binding caps on emissions of CO2 frominstallations within their jurisdiction involved in:

• Energy activities; • Production and processing of ferrous metals; • The mineral industry (e.g., cement, glass or

ceramic production); and• Pulp, paper or board production.

63. Under the Integrated Pollution Prevention andControl (“IPPC”) Directive (96/61/EC), eachoperator of such an installation that carries outactivities above the relevant threshold is alreadyrequired to hold an IPPC permit. The EU ETSDirective will require that each such operator alsoholds a site-specific and non-transferable GHGPermit. Under this permit, the operator will beobliged to hold emission allowances in itscompliance account in the member state’s nationalregistry which at least equals the actual GHGemissions emitted by the installations, as reportedand verified.

64. Each member state has to develop NationalAllocation Plans (“NAPs”), which will allocateallowances for each individual installation, therebysetting an emissions cap. The Commission willretain a right of veto over NAPs, restrictingindividual member states’ discretion in settingtargets and allocations.

65. The first period of trading will take effect between2005 and 2007. The second period, operatingfrom 2008 to 2012, coincides with the firstcommitment period under the 1997 KyotoProtocol. Further trading periods of five yearsbeyond 2012 are envisaged in the Directive andwill be framed according to internationalagreement on future emissions reductions.

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Burden-Sharing Targets in the EU

Country % Targets Below 1990 Levels to be Achieved Between 2008 and 2012

Austria -13Belgium -7.5Denmark -21Finland 0France 0Germany -21Greece 25Ireland 13Italy -6.5 Luxembourg -28Netherlands -6Portugal 27Spain 15Sweden 4UK -12.5

66. Substantial penalties will be imposed in the case offailure to meet an emissions cap. In the first period,this will be 40 for each ton of CO2 by which aninstallation exceeds its emission cap (rising to 100in the second period). However, the installationsconcerned will be able to trade EU emissionallowances credits in order to achieve compliance.These EU allowances will be a common carboncurrency recognized in all member states, whichwill enable companies to trade them across thewhole of the EU. Whether this EU allowance willbe considered to be a distinct unit or an AssignedAmount Unit under the 1997 Kyoto Protocol is yetto be seen.

67. Under the Directive, a system of registries has to beestablished to govern the use of these EUallowances. This will allow the holding andtransfer of all EU allowances, as well as Protocolunits and units recognized by a member state’sdomestic trading scheme) to be recorded in eachmember state in order to achieve a transparent andefficient trading market.

68. As described above, Emission Reduction Units(“ERUs”) generated by JI projects, CertifiedEmission Reductions (“CERs”) generated by CDMprojects and Removal Units (“RMUs”) generatedpursuant to LULUCF may be used by Annex Iparties to assist in meeting their emission reductioncommitments under the Kyoto Protocol. If suchunits are given recognition within the EU ETS, thenthe credits generated by JI or CDM projects couldalso be used by operators (as well as sovereignstates) to fulfill their domestic obligations under theEU ETS. The linking of JI and CDM projects to theEU ETS is therefore considered important increating a global market demand for emissionreduction credits, and the EU Commission adopteda proposal for an amendment to the EU ETS toprovide for this in July 2003.

69. Upon joining the EU in 2004, the first wave ofaccession countries are also agreeing to be legallybound by the EU ETS. In addition, Switzerland,Norway and Liechtenstein have expressed theirinterest in linking their emissions trading schemesto the EU ETS. A clear European price for ‘carbon’is expected to emerge as the volume of tradeexpands. The establishment of an effectiveemissions trading market under the EU ETS andsimilar schemes could well be key to successfullyachieving the main goal of the Convention, whichis to stabilize the impacts of climate change.

2. Japan

70. Having chaired the important COP-3 in Kyoto,Japan ratified the Kyoto Protocol at the beginning

of June 2002. Japan is obliged to reduce its overallemissions of greenhouse gases by six percentbelow 1990 levels in the first commitment periodfrom 2008 to 2012. Since Japan’s energy efficiencyis already of a high standard, it may not bestraightforward for Japan to achieve this goal.

71. Subsequent to COP-3, Japan established its GlobalWarming Prevention Headquarters where itproduced its Guidelines for Measures to preventGlobal Warming (“Guidelines”) in 1998, whichwere revised in March 2002. The Guidelines setout the following main principles governing Japan’saction on addressing climate change:

• Balance between the environment and theeconomy: Japan wishes to foster technologicalinnovation and creative initiatives in businesscircles and to link efforts to prevent globalwarming to encourage economic revitalizationand employment creation;

• Step-by-step approach: Japan has undertaken toassess and review progress on measures it istaking at regular intervals and to implementthese measures step by step. The GlobalWarming Prevention Headquarters intends tocarry out a further review of the Guidelines in2004 and 2007;

• Promotion of combined effort by all sectors ofsociety: Japan recognized that it will not bestraightforward for it to achieve its KyotoProtocol target and it is therefore consideredessential that all national stakeholders joinforces in their respective roles to achieve thisgoal. Voluntary business initiatives areconsidered to be of the highest importance, aswell as measures to be taken in the residential,commercial and transportation sectors; and

• Ensuring international cooperation to preventglobal warming: Japan is committed to makingthe utmost effort to establish a common regimein which all countries (including the UnitedStates and developing countries) willparticipate.

72. The measures in the Guidelines cover each type ofgreenhouse gas (including CO2 emissionsmethane, HFCs, PFC and SF6). The followingparagraphs provide details of the measures thatJapan has implemented in relation to CO2emissions.

73. In order to promote reductions in CO2 emissions,Japan’s measures concentrate on energy supplyand demand. On the demand side, Japan currentlyapplies measures in the industrial, residential,commercial and transportation sectors. On thesupply side, the measures focus on new energy,nuclear power and fuel switching. The new energy

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measures include the promotion of photovoltaicpower generation and support by way of taxationand financing.

74. Fossil fuels still account for about 83% of the totalprimary energy supply in Japan. Fuel switching istherefore considered to be an important tool topromote efficient energy supply. For example, theconversion of industrial coal-fired boilers to naturalgas, or promoting the conversion of old coal-firedpower generation to efficient natural gas combinedcycle power generation. New energies are beingpromoted including solar energy, solar thermalutilization, wind power generation, waste powergeneration and biomass energy. Legislationconcerning the promotion of the use of new energyis planned, as well as the introduction of safetystandards for gas pipelines.

75. In relation to sinks, the Guidelines provide formeasures covering the development of healthyforests through planting, weeding and thinning, thepromotion of the use of wood and wood biomassand the promotion of urban greening.

76. The Steering Committee of the Global WarmingPrevention Headquarters have developedguidelines for the approval of projects relating toJoint Implementation in its Decision “InstitutionalArrangements in Japan for Utilization of the KyotoMechanisms” of July 2002. The Ministry of theEnvironment Japan also intends to establish adomestic support centre, which will collect andconsolidate general and specific information forthose who wish to participate in the FlexibleMechanisms of the 1997 Kyoto Protocol. Thesupport centre will collect information aboutpotential host countries including their projectneeds; legal validity and supporting methodology;and the availability of technology and finance tothe project participants.

3. China

77. China's ratification of the 1997 Kyoto Protocol wasannounced at the 2002 Johannesburg WorldSummit for Sustainable Development (“WSSD”).Although China has not accepted a mandatoryemissions reduction target under the 1997 KyotoProtocol, Chinese governmental agencies havebeen working to define and develop programmesto reduce carbon emissions in cooperation withinternational partners.

78. China's State Development and PlanningCommission, Ministry of Science and Technology,State Economic and Trade Commission andMinistry of Foreign Affairs have jointly prepareddraft guidelines for setting up a National CleanDevelopment Mechanism Management Office.

The State Council formally issued these guidelinesat the end of 2002, and has sought funding fromnumerous multilateral and international donors forcapacity building and technical programmesrelated to the CDM programme.

79. China intends to have a one-stop CDM projectapproval process. The four governmental agenciesmentioned above will form an inter-ministry CDMProject Review Board, which will be the decision-making body for CDM projects and policy. A CDMSecretariat/Administrative Centre will serve theBoard and carry out daily administrative work. TheBoard will ideally review each proposal within aweek to ten days, before forwarding each project toa Minister or Vice Minister for final approval. Thesenior official approving each project will beresponsible for issuing approval letters to projectparticipants.

80. China has had significant interaction with severalother countries on CDM-related projects, withCanada being its most active international partner.Canada's International Development Agency(“CIDA”) has already applied US $11.5 million tofund six projects related to capacity building andtechnology transfer, in order to help China kick-start its CDM process. Canada has also made anadditional U.S. $3.2 million available for projectsin China, to be implemented through the CanadaTrust Fund on Climate Change managed by theAsian Development Bank (“ADB”). ADB and CIDAhave so far implemented a handful of small-scalerenewable energy and energy efficiency projects inGansu and Guangxi. The Gansu projects focus onsmall-scale hydroelectric and solar energyfacilities, while the Guangxi projects involveenergy efficiency, animal waste, biomass andindustrial innovation.

Michael Woods LLM, Senior Research Fellow,Centre for Law and Environment, UniversityCollege of London


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Resources

Internet Materials

CANADA’S NATIONAL CLIMATE CHANGE PROCESS available at http://www.nccp.ca/NCCP/index_e.htmlThis site contains information about how the Canadian government is responding to climate change. Many of thefederal, provincial and territorial governments in Canada have built a National Implementation Strategy on ClimateChange, and agreed to the First National Climate Change Business Plan, containing measures to address climatechange. The Government also holds National Stakeholders Meetings to discuss issues regarding climate changeand get insight from experts.

CLIMATE CHANGE SOLUTIONS available at http://www.climatechangesolutions.com/Climate Change Solutions is a Canadian website providing information on potential methods for the reduction ofgreenhouse gases. The site breaks potential solutions down by sector, such as agriculture, electricity andmunicipalities.

EUROPA: Climate Change available at http://europa.eu.int/comm/environment/climat/home_en.htmThis site contains information about the 1992 UNFCCC, 1997 Kyoto Protocol, the science behind global warming,etc. Most relevant, however, it contains information about the European Climate Change Programme (ECCP). TheECCP provides more specific measures for the EU to take to meet their obligations under the 1997 Kyoto Protocol.A portion of the ECCP, the emissions trading scheme, is outlined in the chapter.

GLOBAL WARMING: EARLY WARNING SIGNS available at http://www.climatehotmap.org/This website contains an interactive global map tracking the consequences of global warming.

GLOBAL WARMING INTERNATIONAL CENTRE available at http://www.globalwarming.net/This site is produced by Global Warming International Centre (GWIC). It contains information regarding scienceand policy and is aimed at both governmental and non-governmental organizations. GWIC also sponsors anannual global warming conference and expo.

INDONESIA: MAJOR STUDIES IN CLIMATE CHANGE available at http://www.ccasia.teri.res.in/country/indo/proj/projects.htmThis site outlines a number of studies in which Indonesia is involved regarding climate change and ways to combatit. It contains information regarding Indonesia’s greenhouse gas levels, the impacts of climate change on differentecosystems in the country, and mitigation efforts.

INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE available at http://www.ipcc.ch/This website contains links to many different types of documents prepared by IPCC. The site contains reportsoutlining scientific findings, reports prepared for the COPs, speeches and presentations.

NEW ZEALAND CLIMATE CHANGE OFFICE available at http://www.climatechange.govt.nz/The site contains information about the 1992 UNFCCC and the 1997 Kyoto Protocol, but it also contains extensiveinformation about how the New Zealand government plans to meet its limits set by the Protocol.

PEW CENTRE FOR GLOBAL CLIMATE CHANGE available at http://www.pewclimate.org/Pew’s site contains in depth information regarding the science behind global warming. It also contains policyinformation, which tends to focus on happenings in the United States. However, the site contains a description ofthe Kyoto Protocol and the COPs. Finally, the site contains information about the role of private business incombating climate change.

TYNDALL CENTRE FOR CLIMATE CHANGE available at http://www.tyndall.ac.uk/The Tyndall Centre is a national UK centre promoting a trans-disciplinary approach to evaluating climate change.The Centre brings together scientists, economists, engineers and social scientists in an attempt to develop realisticpolicies to combat climate change that are individually applicable to varying sectors.

UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE available at http://unfccc.int/1992 UNFCCC homepage, which contains full text of the Convention and the 1997 Kyoto Protocol, documentsfrom various COPs, current events regarding the Convention, including up-to-date information about Parties.

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WORLD METEOROLOGICAL ORGANIZATION (WMO) HOMEPAGE available at http://www.wmo.ch/index-en.htmlThe WMO homepage contains information about changes in climate and weather patterns. WMO also hasprogrammes contained within it, such as the World Climate Programme. Links to these sites are provided and theycontain a wealth of information regarding global weather and climate and evidence of climate change.

WORLD RESOURCES INSTITUTE available at http://climate.wri.org, in particular: Building on the Kyoto Protocol: Optionsfor Protecting the Climate, available at http://climate.wri.org/pubs_pdf.cfm?PubID=3762

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HAZARDOUS WASTESChapter 11

11. HAZARDOUS WASTES

I. Introduction

1. This chapter presents an overview of theinternational instruments and national legislationgoverning the management of hazardous wastes. Itprovides guidance on the applicability of the lawsto minimize, prevent, remedy or punish actionsand consequences involving hazardous and otherwastes that can injure the environment and publichealth. Section II provides an overview of theinternational law governing hazardous wastes,primarily by examining international, regional andbilateral conventions and other agreements settingout rules and standards for regulation of hazardousand other wastes. Section III provides examples ofnational implementation through legislation thatimplement international hazardous waste law atthe domestic level.

2. International hazardous waste conventions andother agreements indicate that “wastes” have beenunderstood globally to mean substances or objectsthat are disposed of, intended to be disposed of, orrequired to be disposed of under provisions ofnational law. ”Hazardous wastes” are a subset ofwastes that include a wide range of wastes capableof causing harm to human health, the environmentor both. These include by-products that areexplosive, flammable, radioactive, liable tospontaneous combustion, emit flammable gasesupon contact with water, poisonous, infectious,corrosive, toxic and those that are capable ofyielding another harmful substance after disposal.They also include wastes containing harmfulcompounds, such as arsenic, cadmium, mercury,lead, acidic solutions, organic phosphorus,halogenated organic solvents and phenols. Suchwastes originate from a variety of sources includinga wide range of production processes, medicalcare in hospitals and domestic garbage.

3. The definitions indicate that wastes requiringregulation result from day to day human activitiesthat make societies function. As the world becomesmore developed and societies become larger, withaffluent consumption patterns, a wide range ofindustrial, commercial, construction, agricultural,medical and even domestic activities haveincreased at an unprecedented rate, the inevitableconsequence being an accelerated rate of wastegeneration. For example, reports show thatcountries of the European Union generate some1.3 billion tonnes of wastes every year, of whichover 36 million tonnes are hazardous wastes. Once

generated, wastes require proper handling anddisposal if their adverse impacts on human healthand the environment are to be avoided.

4. Concerns have arisen over the amount of wastesgenerated throughout the world, which hasreflected a steady increase in quantity and inimproper handling and unsafe disposal. In manycountries, large quantities of wastes have beengenerated that outstrip the countries' capacity toproperly dispose of them. For example, thecapacities of landfills in many places have beenfully utilized and industries and other sectors are indire need of alternative disposal sites.

5. Following scientific research and studies thatrevealed and highlighted adverse health andenvironmental impacts of wastes, concerns aboutunsafe disposal methods and practices increased.Scientific studies and research have shown thatmany hazardous substances and their by-productsare capable of producing unacceptably high levelsof health injury and environmental damage. Forexample, sulfur can cause chemical burns. Anddibromochloropropane, a chemical substanceused to control pests, has the propensity to causetoxic effects on the reproductive system, resultingin a reduction in sperm count in men which leadsto sterility.

6. Scientific research and studies played a major rolein the development of treaties and laws governinghazardous wastes. Although there is no scientificcertainty about the hazards of all wastes, studiesand research confirmed fears about the dangers ofmany kinds of wastes by revealing their toxicity,carcinogenicity, mutagenicity, corrosivity and othercharacteristics harmful to human health and theenvironment. The revelations, which later provideda basis for international legal actions, led to atightening of environmental regulations inindustrialized countries, beginning in the early1970s and this, in turn, led to a dramatic rise in thecost of hazardous waste disposal. Inevitably, thesituation led to a search for alternative, cheaperways to dispose of wastes within countries of originand abroad.

7. In some instances, waste traders resort to unsafedisposal of hazardous and other wastes inunauthorized places within their countries, incoastal areas and in the high seas, causing highlevels of water pollution, damage to populations ofaquatic organisms and serious health ailments. Asearch for cheaper ways to dispose of wastes alsoled to a lucrative but scandalous internationalcommerce in hazardous wastes, basicallyinvolving exports of hazardous wastes from

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industrialized countries where they could nolonger be economically disposed of safely, todeveloping countries in need of hard currency, butwith little knowledge of the hazardous nature of thewastes and no capacity to dispose of them safely.Many of the recipient countries have been inAfrica, Eastern Europe and the Caribbean, wherehazardous wastes exports have caused severehealth and environmental problems tounsuspecting populations, not to mention theaccidental spills in the high seas and otherenvironments that have occurred in the course oftransit.

8. The situation has been complicated by the practiceof manufacturers of concealing information aboutthe nature of wastes generated in their productionprocesses, often in the name of trade and businesssecrets. Similarly, traders in toxic wastes concealthe nature of wastes they handle, especially wasteexports. This makes it even more difficult forrecipient countries to take appropriate measures tohandle and dispose of the wastes safely.

9. The problems and concerns prompted actionwithin and among countries, which resulted in thedevelopment of binding and non-legally bindinginternational agreements setting forth rules,principles and standards for management ofhazardous wastes and for the control oftransboundary movement of the wastes.


1. Multilateral Instruments on Hazardous Wastes

a) Basel Convention on the Control of TransboundaryMovements of Hazardous Wastes and their

Disposal

i. Background and Contents of the Convention

10. The Basel Convention on the Control ofTransboundary Movements of Hazardous Wastesand their Disposal (“Basel Convention”) is the mostimportant international agreement related tohazardous waste.

11. The origins of the Basel Convention can be tracedto the 1972 United Nations Conference on theHuman Environment (“1972 StockholmConference”) which was held to address pollutionand other environmental problems whichthreatened the health and well being of people inmany countries and posed risks of damage toecosystems and species important to life. Prior to

the 1972 Stockholm Conference, a number ofinternational and national scientific organizationshad been conducting research which increasedunderstanding of linkages between biologicalproductivity and human welfare, negative impactsof human activities on the environment and,among other things, demonstrated conclusivelythat worldwide environmental problems could betackled successfully through internationalcooperation.

12. Another factor that strengthened calls for the 1972Stockholm Conference was a number of pollutionand other environmental disasters in the 1950s and1960s. These included the outbreak of Minamatadisease, a kind of neurological disorder between1954 and 1965, among local populations inMinamata, Japan as a result of eating fishcontaminated with methyl mercury wastes that hadbeen discharged from a chemical factory into thesea. Another example was to be found at LoveCanal, near Niagara Falls in the United States,where homes were built on a former hazardouswaste dumpsite containing pesticides andchemicals used in making plastics. Rainwaterpercolating into the ground resulted in liquid wastethat reached many of the homes and contaminatedother environments in the area, allegedly causingseizures, learning disabilities and other ailmentsamong residents and killing birds and otherorganisms in the area.

13. Among the results of the 1972 StockholmConference was that government representativesagreed to address a variety of environmentalproblems, including their undertaking to haltdischarges of harmful substances into theenvironment.

14. In 1981, UNEP identified as one of the subjects ofsignificance to global environmental protection themanagement and transboundary movement ofhazardous wastes. By then, there had been severalincidents of improper and illegal dumping ofhazardous wastes within countries and at sea, andincidents of exports of hazardous wastes fromdeveloped to developing countries where theywere inappropriately disposed of, creating adverseenvironmental problems, were on the increase.

15. UNEP developed the Cairo Guidelines andPrinciples for the Environmentally SoundManagement of Hazardous Wastes (“1987 CairoGuidelines”) addressed to governments with aview to assisting them in the process of developingnational policies and measures for environmentallysound management and disposal of hazardous

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wastes. When adopting the voluntary 1987 CairoGuidelines, UNEP's Governing Council requestedUNEP to prepare a global legal instrument tocontrol transboundary movement of hazardouswastes and their disposal, because of increasingpublicity and awareness of adverse impacts ofuncontrolled movement of hazardous wastes,particularly to developing countries. UNEPprepared a draft convention and established aWorking Group composed of legal and technicalexperts to carefully consider and revise the draft,which met five times and subsequently developeda final draft. Then, UNEP convened a meeting ofgovernmental representatives to consider the draftand the proposal for a convention. The BaselConvention was adopted in 1989 and entered intoforce on 5 May 1992. Currently, it has 166 parties(as of November 2005).

16. The Basel Convention is the first and foremostglobal environmental agreement that strictlyregulates the transboundary movements ofhazardous wastes and other wastes. TheConvention creates binding obligations for itsparties. Article 2 of the Convention defines wastesas “...substances or objects which are disposed ofor are intended to be disposed of or are required tobe disposed of by the provisions of national law.“.Article 1 specifies the scope of the Convention. Itregulates hazardous wastes of categories listed inAnnex I and III of the Convention, including wastesfrom particular waste streams such as medical carein hospitals and wastes possessing toxic and otherhazardous characteristics as specified in article1(a). It also regulates wastes that are not coveredunder article 1(a) but are defined as or consideredto be hazardous wastes by the domestic legislationof export, import or transit countries that are partiesto the Convention as stated in article1(b). Inaddition to hazardous wastes, the Convention alsoregulates "other wastes" of categories listed inAnnex II, including wastes collected fromhouseholds and residues arising from incinerationof household wastes, if they are subject totransboundary movement as stipulated in article1(2).

17. Article 1(3) and (4) of the Basel Conventionexempts certain kinds of wastes from its regulatoryscope. Article 1(3) states that the Convention doesnot regulate wastes that, “...as a result of beingradioactive, are subject to other internationalcontrol systems...applying specifically toradioactive materials...”. Radioactive wastes arevery different in nature and composition and as aresult, require very specialized technical and otherhandling procedures. Therefore, radioactive wastes

are largely regulated by the International AtomicEnergy Agency. Further, article 1(4) stipulates thatwastes derived from the normal operation of shipswhose discharge is already covered by anotherinternational instrument are also excluded from thescope of the 1989 Basel Convention.

18. In its Preamble, the Basel Convention recognizesthe risk of damage to human health and theenvironment that is posed by hazardous wastesand other wastes and by the transboundarymovement of such wastes. The Preamble expresslystates that its purpose is to protect human healthand the environment against the adverse effectsthat may result from the generation andmanagement of hazardous wastes and otherwastes. To accomplish its goal, the Conventionprovides for three key measures with bindingobligations on parties, namely:

i. Strict control of transboundary movement ofhazardous wastes;

ii. Environmentally sound management ofhazardous wastes; and

iii. Enforcement and implementation of theprovisions of the convention at internationaland international levels.

These three measures will be elaborated below.

ii. Strict Control of Transboundary Movement ofHazardous Wastes

19. Transboundary movement of hazardous wastesrefers to movement of wastes across internationalfrontiers. Article 4(1)(a) recognizes the right ofevery party to prohibit the import of hazardouswastes or other wastes for disposal. Therefore, anyparty can place a ban on the importation of any ofthe wastes listed in the Annexes to the BaselConvention, or any substances that the party hasclassified as hazardous waste by national law. Aparty that has taken such a step is required byarticles 4(1)(a) and 13 to inform the BaselSecretariat and other parties of their decision. Oncenotified of importation prohibitions, parties mustprohibit and prevent waste generators and otherwaste handlers within their countries fromexporting wastes to such countries.

20. Moreover, article 4(2)(e) obligates each party toprohibit and prevent movement of wastes tocountries, especially developing countries,whether parties to the Basel Convention or not, if ithas reason to believe that the wastes will not be

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managed and disposed of in an environmentallysound manner in the country of intendeddestination. In addition, article 4(5) obligatesparties not to permit imports of hazardous wastesfrom countries that are not parties to theConvention or their exports to non-parties, unlessbilateral and other agreements allowed by article11 of the Convention exist between a party and anon-party allowing transboundary movement ofhazardous and other wastes between the partiesconcerned. Where such agreements exist, article11(2) obligates concerned parties to notify the BaselSecretariat of their existence for purposes of controlof any transboundary movement of wastesundertaken. Parties also agreed not to allow wastesexports to Antarctica in article 4(6).

21. Article 4(2)(d) of the Basel Convention obligatesparties to take steps to ensure that transboundarymovement of hazardous wastes and other wastes isreduced to a minimum. Among other things, thisobligates parties to require waste generators in theircountries to reduce generation of wastes to aminimum as stipulated by article 4(2)(a). Wastegenerators can reduce generation of hazardouswastes by, for example, replacing hazardous andnon-biodegradable raw materials with less or non-hazardous and biodegradable ones.

22. If movement of wastes is to take place betweenparties, the Basel Convention obligates parties toensure that all movements are conducted inaccordance with consent and notificationrequirements and procedures that it establishes. Asa first step, article 4(7)(a) requires each party tocreate a system of national authorization ofhazardous waste transporters and other handlersand to prohibit unauthorized persons fromengaging in hazardous waste activities. Further,article 4(2)(f) obligates each party to require thatinformation about a proposed transboundarymovement of hazardous wastes and other wastesbe provided to the governmental authorities in theState of origin, as well as the intended destinationcountries and countries of transit. To make thispossible, article 5 requires each party to designateor establish a competent governmental authority toreceive notifications of proposed transboundarymovement of wastes and other related informationand to respond to it.

23. Parties are also obligated by articles 4(9)(a),(b) and4(11) to take appropriate measures to ensure thattransboundary movements of hazardous wastes areallowed only:

- If the state of export does not have the technicalcapacity and/the necessary facilities, capacity

or suitable disposal sites to properly dispose ofwastes intended for export;

- The intended destination country has thenecessary capacity to dispose of the wastes inan environmentally sound manner; and

- Any other transboundary waste movementcriteria agreed to between the partiesconcerned (which are not in conflict with theConvention's requirements) and any additionalconditions imposed by a party have been met.

24. If the conditions are fulfilled, the proposeddestination party, through its competentgovernmental authority, must be notified in writingof the intended export. Articles 4(1)(c) and 6(1)obligate the exporting party to require the generatoror intending exporter to notify the intendeddestination country and all countries of transit ofevery intended export of wastes. Under article 6(1),each notification must contain the informationspecified in Annex V A, including: full name,address and telephone number of the person to becontacted on matters concerning the intendedexport, reason for the intended export, generator(s)of the waste and site of generation, intendedcarrier(s) of the waste or their agents, if known,country of export of the waste, name of competentauthority, expected countries of transit and theircompetent authorities, country of waste import andname of its competent authority, projected date(s)of shipment(s), period of time over which waste isto be exported and proposed itinerary, designationand physical description of the waste, informationon any special handling requirements includingemergency provisions in case of accidents andtype of packaging envisaged.

25. Under article 6(3), the exporting parties must notallow the generator or exporter of wastes tocommence transboudary movement of wastes untilthe exporting party receives written confirmationthat the notifier has received the written consentfrom the intended destination state to import andconfirmation of the existence of a contract betweenthe exporter and the person or body to dispose ofthe wastes in the destination party specifying whatthey propose to do to manage the wastes inquestion in an environmentally sound manner,including disposal of the waste. In addition, theexporting party must not allow the exporter orgenerator of wastes to commence shipment until itreceives written consent from all destination partiesas required by article 6(4).

26. If all required consents are received, the intendingexporter is required to comply with labelling,packaging and transportation requirementsstipulated by article 4(2)(c),(d) and (7), in

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conformity with generally accepted andrecognized international rules. With respect totransport, the United Nations Recommendationson the Transport of Dangerous Goods developedby the Committee of Experts on the Transport ofDangerous Goods and other instruments apply.The provisions also require that transboundarymovement is to be conducted in anenvironmentally sound manner to preventpollution and to minimize adverse consequencesto human health and the environment that mightresult from the movement. In addition, article4(7)(c) requires that every consignment of wastesintended for transboundary movement beaccompanied by a movement document from thepoint at which the movement commences to thepoint of disposal.

27. Further, article 6(9) requires that each person whotakes charge of the waste consignment in thecourse of transboundary movement sign themovement document either upon receipt ordelivery of the wastes in question. The last personrequired to sign the movement document is theperson who disposes of the wastes in thedestination country. The disposer is required toinform the exporter and the competent authority inthe exporting state of receipt of wastes and, in duecourse, of completion of disposal, which mustcomply with specifications in the notification. If nosuch information is received by the exporting state,its competent authority is required to notify theimporting state.

28. Under article 8, where lawful movements of wasteswere commenced but cannot be completed andalternative arrangements cannot be made for theportion of the waste that has already reached thedestination country to be disposed of in anenvironmentally sound manner within a givenperiod of time, the exporting party has a duty to re-import the wastes. In such situations, transitcountries have an added obligation not to opposeor hinder re-export.

29. Under article 9, transboundary movements ofhazardous and other wastes in certaincircumstances constitute criminal violations forillegal traffic in waste. These are transboundarymovements of hazardous and other wastes that arenot preceded with the required prior notification,without the required consents of the destination ortransit countries, with consents obtained fromstates concerned through falsification,misrepresentation or fraud. Illegal traffic alsoconsists of traffic that does not conform in materialways with the required documents and that resultsin deliberate dumping of wastes in contravention of

the Convention and general principles ofinternational law.

iii. Environmentally Sound Management of Hazardous Wastes

30. In order to protect health and the environmentfrom adverse impacts of wastes, the BaselConvention aims to ensure environmentally soundmanagement of hazardous and other wastesamong parties. Article 2 defines environmentallysound management of hazardous and other wastesto mean “...taking all practicable steps to ensurethat hazardous wastes and/or other wastes aremanaged in a manner which will protect humanhealth and the environment against the adverseeffects which may result from such wastes”. Thetotality of the Convention's provisions on wastemanagement presents an "integrated life-cycleapproach," which involves strong controls from thegeneration of hazardous wastes to their storage,transport, treatment, reuse, recycling, recovery andfinal disposal.

31. Article 4(2)(a) requires parties to minimize thegeneration of hazardous wastes and other wasteswithin their territories. Waste reduction has twoaspects: reduction in the quantity of wastesgenerated and reduction or elimination of the useof hazardousness substances. For example, article13(3)(h) obligates parties to share informationabout any technologies they have adopted and anymeasures undertaken for the development oftechnologies for reduction or elimination ofproduction of hazardous wastes. Other hazardouswaste reduction technologies that can be adoptedin compliance with this provision include cleanerproduction methods. Waste reduction may alsoinvolve educating consumers about the nature ofby-products of the products they use, their dangersand safer alternatives.

32. Article 14(1) recognizes the significance oftechnology transfer, especially to developingcountries to enable the minimization of wastegeneration, and obligates parties to establishregional and sub-regional centres for training andtechnology transfers regarding the management ofwastes and minimization of their generation.

33. Adverse effects on health and the environment canoccur as a result of hazardous waste pollution ofwater and other environments. Therefore, article4(2)(c) obligates parties to ensure that personsinvolved in the management of wastes within theircountries, such as waste packers, transporters andother handlers, take all necessary steps to preventwaste pollution. This requires, for example, that

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proper packaging materials be used to avoidleakage of liquid or other wastes and that wastes betreated before disposal to eliminate their hazardousnature. Article 4(2)(c) further obligates parties toensure that persons involved in waste managementtake steps to minimize the consequences of anywaste pollution that occurs. For example, one wayof reducing the impacts of waste pollution is todevelop and implement pollution emergency plansto be followed in the event of pollution incidents.

34. As part of the environmentally sound managementof hazardous wastes, parties are further required byarticle 4(2)(b) to ensure that wastes are disposed ofas close to the source as possible, and parties arerequired to ensure that waste exporters, generators,importers and disposers package, label, transportand handle wastes destined for export inconformity with generally accepted andrecognized international rules, standards andpractices that can prevent or reduce adverseimpacts on health and the environment (article4(7)(b)).

35. Parties are also required under article 13(3)(d) togather information and data on effects on humanhealth and the environment of the generation,transportation and disposal of hazardous and otherwastes and to share the information with otherparties. This may provide valuable basis fornational legislation for compliance with theConvention's requirements and any other morestringent measures put in place at the domesticlevel to protect health and the environment fromadverse impacts of wastes.

iv. Enforcement of Provisions for Strict Controlof Transboundary Movements and for

Environmentally Sound Management ofHazardous Wastes

36. The rules and standards established by the BaselConvention for transboundary movement of wastesare to be enforced at national and internationallevels. At the national level, article 9(5) obligateseach party to introduce appropriate nationallegislation to prevent and punish illegal traffic inhazardous and other wastes. A party may, forexample, create hazardous waste laws expresslyprohibiting importation and exportation ofhazardous wastes without the prior notificationsand consents required by the Convention. A partymay also, by law, establish a special police force orcustoms unit charged with the responsibility ofdetecting illegal imports and exports of wastes.Further, a party may create laws stipulating finesand/or imprisonment for citizens and others whoimport hazardous wastes without following the

Convention procedures. Countries can alsoestablish laboratories at their entry points to test thenature of substances exported to their countries todetermine whether they are prohibited wastes, inaddition to any laws, policies and procedures thatmay require the return of hazardous wastes tocountries of origin in cases where properprocedures have not been followed.

37. Similarly, under article 10(2)(c), parties have anobligation to have effective and efficient methodsfor environmentally sound management ofhazardous wastes as the basis of their nationallaws, regulations and policies, and the obligationto cooperate in the improvement of existingtechnologies, and in the development andadoption of new technologies to enable thereduction of waste generation and themanagement wastes in an environmentally soundmanner.

38. If a transboundary movement of hazardous wastesor other wastes occurs in contravention of theConvention's provisions as a result of the conductof an exporter or generator, article 9(2) requires theexporting state of the wastes in question to ensurethat the wastes are taken back by the exporter, orthe generator of the wastes, or by the state of exportitself. If this is not possible, the state of export hasthe obligation to ensure that the wastes areotherwise disposed of in accordance with theprovisions of the Convention within 30 days ofbeing notified of the illegal traffic. If illegal trafficoccurs as a result of the conduct of an importer ordisposer, the state of import bears the obligation toensure that the wastes in question are disposed ofin an environmentally sound manner by theimporter or disposer. If this is not possible the Stateof import itself shall, within 30 days of knowing ofthe illegal traffic, dispose of the wastes in anenvironmentally sound manner (article 9(3)).

39. In cases where the responsibility for illegal traffic inwastes cannot be assigned to an exporter,generator, importer or disposer, the state of exportand the state of import are obligated by article 9(4)to cooperate to ensure that the wastes in questionare disposed of in an environmentally soundmanner in one of the states concerned, orelsewhere as soon as practicable. Article 12obligates parties to cooperate with a view toadopting a Protocol setting forth rules andprocedures for liability and compensation to applyin cases of damage resulting from transboundarymovement and disposal of hazardous wastes.Implementation of this provision is considered inSection vii below under "Developments since theadoption of the Convention".

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v. Dispute Settlement Mechanisms

40. In case of any disputes arising as a result of a party'sfailure to comply with the 1989 Basel Convention,the Convention provides for elaborate disputeresolution mechanisms. Article 20(1) and (2) of theConvention requires parties to resolve disputesthrough peaceful means. If a party fails to complywith the 1989 Basel Convention and, as a result, adispute arises between that party and another partyconcerning the failure to comply, the Conventionrequires that the parties shall meet and negotiatethe matter. If the parties do not agree, the mattershall be resolved through some other peacefulmeans, such as conciliation. If parties fail to resolvetheir matters peacefully, they can either refer thedispute to arbitration through the Basel ConventionSecretariat, or to the International Court of Justicefor resolution.

vi. Institutional Framework for Implementation

41. For its implementation, article 15 and 16 of theConvention establish a Conference of the Parties(“COP”) and a Secretariat, and charge them withvarious responsibilities. Article 15 also allows forthe establishment of Subsidiary Bodies toimplement its provisions. The COP is the politicaland decision-making body, which comprisesrepresentatives of all the parties to the Convention.

42. Under article 16 of the Convention, a Secretariatwas established, responsible for facilitatingimplementation of the Convention and relatedagreements by, among other things, coordinatingthe Convention's system of notification of andconsent to transboundary movements of hazardouswastes. The Secretariat monitors transboundarymovements of hazardous wastes by receivinginformation from parties about their exports ofhazardous wastes under article 13(3)(b). TheSecretariat also works closely with Interpol toprevent illegal transboundary movement ofhazardous wastes. The Secretariat is responsible forproviding assistance to parties in cases of illegaltraffic and for providing information regardingcompetent persons to consult on technical mattersconcerning provisions of experts and equipmentfor rapid assistance to parties in the event of anemergency involving hazardous wastes. TheSecretariat is administered by UNEP.

43. In accordance with article 14 of the Convention,the COP has established two types of funds: ageneral fund, known as a Trust Fund forimplementing the Convention's activities generally,and a Technical Cooperation Trust Fund to assistdeveloping countries with the technical aspects of

the requirements under the Convention. Technicalcorporation funds can, for example, be used fortechnical training of government officials onnational regulation of hazardous wastes.

vii. Developments since the Adoption of theConvention

44. During the first decade of the Convention (1989-1999), it was principally devoted to setting up aframework for controlling transboundarymovements of hazardous wastes. Among otherthings, a control system based on prior writtennotification was put in place in compliance withprovisions of articles 4, 5 and 6 of the Convention.The area of focus during the subsequent decade(2000-2010) is the minimization of hazardouswaste generation.

45. Recognizing that the long-term solution to thestockpiling of hazardous wastes and the search foracross-the-border disposal sites is a reduction in thegeneration of wastes, the COP in 1999 decided toset out a Strategic Plan and Guidelines for theConvention's activities during the next decade inthe “Basel Declaration”. Emphasizingminimization of hazardous waste generation, thePlan and strategy for this next decade (2000-2010)include:

• Active promotion and use of cleanertechnologies and production methods;

• Creation of awareness to promote theConvention, the aims of the strategy onenvironmentally sound management ofhazardous wastes and other implementationactivities; and

• Implementation and promotion of technicalcapacity-building as well as developing andtransferring environmentally soundtechnologies for management of hazardouswastes, especially for developing countries andcountries with economies in transition. For thispurpose, regional training centers have beenestablished as discussed in more details below.

46. Building the capacity to manage and dispose ofhazardous wastes in an environmentally soundmanner is an integral part of implementing theConvention. Through training and technologytransfer, parties to the Convention, especiallydeveloping countries and countries witheconomies in transition, can gain knowledge, skillsand tools that are necessary to properly managetheir hazardous wastes. To this end, the Conventionhas established an elaborate network of Regionaland Sub-regional Centres for Training andTechnology Transfer. Activities of the centres are

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tailored to meet the needs of the countries in termsof technical and non-technical training.

47. One of the joint obligations created by article 12 ofthe Basel Convention is for parties to cooperatewith a view to adopting a Protocol setting outappropriate rules and procedures for liability andcompensation for damages resulting fromtransboundary movement and disposal ofhazardous wastes. Consultations about such aProtocol began in 1993, mainly in response toconcerns by developing countries about their lackof funds and technologies for coping with illegaldumping or accidental spills of hazardous wastes.The Basel Protocol on Liability and Compensationfor Damage resulting from TransboundaryMovements of Hazardous Wastes and theirDisposal (“Liability Protocol”) was adopted at thefifth COP in 1999. It has not yet entered into force(August 2005).

48. The objective of the Liability Protocol is to providefor a comprehensive regime for liability, as well asadequate and prompt compensation for damageresulting from transboundary movements ofhazardous wastes and other wastes, includingaccidents occurring because of illegal traffic insuch wastes. The Protocol establishes rules onliability and compensation for damages caused byaccidental spills of hazardous wastes duringexport, import or during disposal. The Protocoladdresses questions as to who is financiallyresponsible in the event of an incident andconsiders each facet of a transboundary movementof wastes, from the point at which the wastes areloaded on the means of transport to their export,international transit, import and final disposal.

49. Article 15(4) and (5), article 17 and other provisionsof the Basel Convention specifically authorizeparties to amend the Convention as necessary toassist in fulfilling their responsibilities and to alloweffective implementation of its provisions. Pursuantto these provisions, the COP, at its second meetingin 1994, agreed to an immediate ban on the exportfrom the Organization for Economic Cooperationand Development (“OECD”) to non-OECDcountries of hazardous wastes intended for finaldisposal. The text of this Amendment to the BaselConvention on the Control of TransboundaryMovements of Hazardous Wastes and theirDisposal (“1995 Ban Amendment”) does not usethe distinction OECD/non-OECD countries. Rather,it bans hazardous wastes exports for final disposaland recycling from what are referred to as AnnexVII countries (Convention parties that are membersof the European Union, OECD, and Liechtenstein)to non-Annex VII countries (all other parties to theConvention). Parties also agreed to ban the export

of wastes intended for recovery and recycling. TheBan Amendment has to be ratified by three-fourthsof the parties present at the time of adoption of theAmendment, and has not entered into force yet(August 2005).

b) Marine Environmental Compensation and LiabilityAgreements and Marine Pollution Prevention

Agreements

i. Marine Environmental Compensation and LiabilityAgreements

50. Besides provisions for liability and compensationin the Convention, the 1972 Convention on thePrevention of Marine Pollution by Dumping ofWastes and other Matter (“1972 London DumpingConvention”) and a few other conventions dealingwith hazardous wastes, a number of otherinternational agreements set rules specificallydealing with issues of liability and compensationfor pollution damage in cases of spills and otherdischarges in the marine environment, includingspills and discharges of hazardous wastes. Theseinclude: the International Convention on CivilLiability for Oil Pollution Damage (“Civil LiabilityConvention”), the International Convention on theEstablishment of an International Fund forCompensation for Oil Pollution Damage (“1971International Fund Convention”), the InternationalConvention on Liability and Compensation forDamage in connection with the Carriage ofHazardous and Noxious Substances by Sea(“Liability and Compensation Convention”) andthe International Convention on Civil Liability forBunker Oil Pollution Damage (“Bunker OilPollution Convention”). The rules established inthese conventions are complementary to those ofthe Convention with respect to liability andcompensation for harm occasioned by hazardousand other wastes. (See also chapters 5 and 13).

51. The Civil Liability Convention was adopted in1969 to provide for compensation of victims of oilpollution resulting from the escape or discharge ofoil from ships and to ensure that ship owners weremade liable to pay compensation. It establishesuniform international rules and procedures fordetermining liability and compensation for damagecaused by the escape of discharge of oil from ships.However, the Civil Liability Convention appliesonly to pollution damage caused in the territorialsea of a party. It also applies to measures taken afterthe incident to prevent or minimize damage andthe liability limits the Convention sets are low. Thisled to the creation of more agreements to governliability and compensation for pollution from shipsand other sources.

52. The 1971 International Fund Convention enteredinto force in 1978. The 1971 International FundConvention establishes an International OilPollution Compensation Fund to providecompensation for pollution damage resulting fromthe escape or discharge of oil from ships. Amongother things, the 1971 International FundConvention outlines the conditions under whichthe Fund will be used to compensate oil pollutionvictims, especially where there is inadequatecompensation under the Civil Liability Convention.This was followed by the two other liabilityconventions.

53. The Liability and Compensation Convention,adopted in 1996, has yet to enter into force. TheLiability and Compensation Convention will applyto approximately 6000 substances defined byreference to an existing international list ofsubstances, including noxious liquid substancescarried in bulk. Article 3 of the Conventionstipulates that the Convention shall applyexclusively “(a) to any damage caused in theterritory, including the territorial sea of a State Party;(b) to damage by contamination of theenvironment caused in the exclusive economiczone of a State Party, established in accordancewith international law...; (c) to other...damagecaused by a substance carried on board a ship...;and (d) to preventive measures...” taken in relationto such damage. It defines damage as includingloss of life, personal injury, loss of or damage toproperty outside a ship, loss or damage bycontamination of the environment, the costs ofpreventive measures, and further loss or damagecaused by them. Among other provisions, theConvention introduces strict liability for shipowners, and a system of compulsory insurance toensure that ship owners meet their liabilities in theevent of a pollution incident. The Convention willalso introduce a fund financed by cargo interests, tobe available in certain circumstances, includingwhere a ship owner is not able to meet liability.

54. The Bunker Oil Pollution Convention, adopted in2001, has also not yet entered into force. Itrecognizes the importance of establishing strictliability for all forms of oil pollution, which islinked to an appropriate limitation of the level ofliability. The Convention also intends to ensure thatadequate, prompt and effective compensation isavailable to persons who suffer damage caused byoil spills when carried in ships bunkers. Bunker oilis defined by article 1 of the Convention to mean“...any hydrocarbon mineral oil, includinglubricating oil, used or intended to be used for theoperation or propulsion of the ship, and anyresidues of such oil”. Such residues are wastes and

thus the Convention applies to hazardous andother oil wastes. Among other significantprovisions, article 3 of the Convention holds a shipowner, at the time of a pollution incident, to beliable for pollution damage caused by any bunkeroil on board or originating from the ship, exceptunder circumstances specified in the provisions,including where the damage results from an act ofwar, hostilities, civil war, insurrection or a naturalphenomenon of an exceptional or inevitablecharacter.

55. It can be concluded that the marine environmentalcompensation and liability agreements have notyet provided an affective mechanism for liabilityand compensation for harm resulting fromhazardous and other wastes. This makes itnecessary that more efforts be made to bring thevarious schemes provided for into force, and formore efforts to be made to encourage parties to theBasel Convention to ratify its 1999 LiabilityProtocol.

ii. Marine Pollution Prevention Agreements

56. A number of international agreements forprevention of marine pollution contain provisionsfor regulation of hazardous and other wastes thatare complementary to regulations established inthe Basel Convention, which does not specificallyregulate ocean dumping. For the marineenvironment, dumping and discharge of wastes areproblems both in the high seas and in coastal areas.Existing agreements setting out rules to address thewaste problems, as well as other sources of marinepollution include the International Conventionrelating to Intervention on the High Seas in Casesof Oil Pollution Casualties, the InternationalConvention for the Prevention of Pollution fromShips, the Convention on the Prevention of MarinePollution by Dumping of Wastes and other Matter(“London Dumping Convention”), the UnitedNations Convention on the Law of the Sea(“UNCLOS”), the International Convention on OilPollution Preparedness, Response and Cooperationand its 2000 Protocol on Preparedness, Responseand Cooperation to Pollution Incidents byHazardous and Noxious Substances. One of theseinstruments will be briefly considered below underSection c, namely the London DumpingConvention, to illustrate the applicability of marinepollution prevention agreements to regulate themanagement of hazardous wastes, especiallydisposal.

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c. Convention for Prevention of Marine Pollution byDumping of Wastes and other Matter

57. One of the key waste issues that the BaselConvention does not specifically address isdumping in both coastal areas and in the high seas.This is the subject of the Convention for Preventionof Marine Pollution by Dumping of Wastes andother Matter, 1972, which entered into force inAugust 1975. (See chapters 13 and 17). TheLondon Dumping Convention seeks to preventmarine pollution from waste dumping and from avariety of other sources, including pollution fromthe air. Regarding hazardous wastes, article 4 of theLondon Dumping Convention prohibits dumpingof such wastes into all marine environments,including the high seas and territorial waters. TheLondon Dumping Convention prohibits alldumping in the marine environment except for thesubstances listed in an Appendix to theConvention. Hazardous wastes whose dumping inthe marine environment is totally prohibited by theLondon Dumping Convention include wastescontaining mercury, organochlorine compounds,plastics, as well as radioactive wastes that areexcluded by the Basel Convention.

58. The London Dumping Convention does not createan international enforcement mechanism to ensurethat its dumping prohibitions are adhered to.Rather, it obligates parties in articles 4(3) and 7 andother provisions to create national laws, rules andregulations for its implementation. In their nationallaws, parties are required to prohibit dumping ofhazardous wastes in coastal areas and in the highseas and to provide for punishment forinfringement of the laws. For example, a party maycreate national rules prohibiting ships flying its flagfrom dumping hazardous wastes in the high seasand providing for fines and/or imprisonment incase dumping occurs. In addition, parties arerequired by article 4(3) to carry out continuousassessments of their coastal waters to determinewhether any dumping has taken place and to takeremedial measures as appropriate.

59. The London Dumping Convention also sets outbinding rules for liability and compensation fordamage resulting from dumping of hazardouswastes in the marine environment. In this respect,article 10 of the Convention obligates parties toestablish national rules and procedures forassessing liability for damage resulting fromdumping of prohibited wastes in the marineenvironment. National rules may, for example,provide for joint liability in case of discharge ofhazardous wastes in the marine environment bymore than one production facility.

60. The 1996 Protocol to the London DumpingConvention is intended to replace the Conventionthough it has yet to enter into force. The Protocoladopts both the precautionary principle and thepolluter pays principle. The precautionaryprinciple approach is intended for parties to findsolutions for land-based sources of marinepollution and encourages prevention of wastegeneration.

2. Regional Instruments on Hazardous Wastes

a) Bamako Convention on the Ban of Imports intoAfrica and the Control of Transboundary

Movement and Management of HazardousWastes within Africa

61. The Basel Convention gave rise to the developmentof a number of other conventions on hazardouswastes at the regional level and to the amendmentof existing regional conventions on environmentalmanagement to specifically include provisions forhazardous wastes. Article 11 of the BaselConvention encourages parties to enter intobilateral, multilateral and regional agreements onhazardous wastes to help achieve the objectives ofthe Convention. In light of this and other factors,the 1991 Bamako Convention on the Ban ofImports into Africa and the Control ofTransboundary Movement and Management ofHazardous Wastes within Africa (“BamakoConvention”) was adopted by African states toaddress certain aspects of hazardous wasteproblems that the Basel Convention did not cover.The Bamako Convention entered into force in1998 and its Secretariat is with the African Union.

62. The Bamako Convention regulates substances,especially pesticides, fertilizers and otherchemicals that have been banned, cancelled,denied registration by a governmental regulatoryaction or voluntarily withdrawn in the country ofmanufacture due to health and environmentalreasons. These are considered by the BamakoConvention as hazardous wastes. Efforts to includethe specified substances was intended to allowAfrican states to deal with problems of exports ofsuch substances to African countries purportedlyfor use, when in fact, waste traders and otherexporters intend to dispose of them that way.Under article 2, the Bamako Convention alsoexpressly includes radioactive wastes in itsdefinition of hazardous wastes, regardless ofwhether there exist other international instrumentsfor their control, which means that radioactivewastes are regulated under the Bamako regime.

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63. Another significant provision of the BamakoConvention is that it expressly bans the importationof hazardous wastes into African states from non-parties to the Convention. To make this baneffective, articles 4, 6, 8 and 9 of the Conventionobliges its parties to take legal, administrative andother measures within their national jurisdictions toprohibit the import of all hazardous wastes intotheir territories. Any such imports are deemedillegal and the acts involved, criminal. To be ableto determine whether illegal exports of wastes intoAfrica are about to take place and to prevent them,each party is required to set up a “dump watch”.Should any such illegal activities take place, theBamako Convention requires that the illegallyimported wastes be exported back to the country oforigin and parties have an obligation to inform theBamako Secretariat and other parties to theConvention of such occurrences.

64. As between parties to the Bamako Convention,article 9 provides that wastes may be moved butonly upon receipt from the intended destinationcountry of a written consent, prior to export.Movements of hazardous wastes without suchconsent amount to illegal traffic. So are movementspursuant to falsified consent, misrepresentation,fraud and those that result it deliberate disposal ofwastes in contravention of the BamakoConvention. Under article 8, parties have an addedduty to re-import any hazardous wastes exported toanother party pursuant to agreements betweenpersons in the countries concerned, if themovement cannot be completed and the portion ofhazardous wastes already exported cannot bedisposed of in the importing country in anenvironmentally sound manner.

65. Article 4(3) of the Bamako Convention obligeseach party to impose unlimited liability as well asjoint and several liability on hazardous wastegenerators. This means that countries could imposeliability for existence of hazardous wastes and forany danger or damage occasioned in the absenceof fault or negligence against other parties and non-parties. Under article 12, parties agreed to holdfurther consultations on matters concerningliability and compensation and to come up withfurther joint regulations on it. In addition, article4(3) of the Bamako Convention creates obligationsfor environmentally sound management ofhazardous wastes that are similar to those createdunder the Basel Convention.

b) Regional Seas Agreements

66. As noted earlier, many international agreementsencourage the creation of agreements at regional

and sub-regional levels to allow parties toeffectively implement rules and regulations createdat the international level. For effective managementof hazardous wastes in an environmentally soundmanner and to ensure strict regulation oftransboundary movement of hazardous wastes,article 11 of the Basel Convention authorizesparties to enter into bilateral, multilateral andregional agreements regarding hazardous andother wastes with other parties and non-parties tothe Convention. In light of such permissiveprovisions, regional seas agreements exist in almostevery region of the world. (See Chapter 13 for afurther discussion on this topic).

67. Although global agreements may apply to everycountry, and many are useful models for regionalinstruments, every region has its ownenvironmental problems and its own needs.Therefore, regional agreements are more likely toattract the full interest and commitment ofgovernments in the region. They are tailored tomeet some needs in relation to specificenvironmental problems and issues and providethe legal framework for addressing the issues andproblems. Most of the existing regional agreementsare similar in structure but different in specifics.Almost every one of them provides for an ActionPlan as a mechanism which expresses in clearterms the legal commitment and political will ofgovernments to tackle their commonenvironmental problems and sets forth steps andactions to be taken to address specificenvironmental problems. Some of the specificdifferences are included in supplementaryprotocols to the agreements.

68. With regard to hazardous wastes, the provisions ofregional seas agreements complement provisionsof the Basel Convention and other globalinternational agreements on hazardous wastes. Thefollowing sections provides examples of few of theagreements, pointing out some of the areas inwhich the agreements can complementinternational instruments for effective managementand control of transboundary movement ofhazardous and other wastes.

i. Convention for the Protection and Development ofthe Marine Environment of the Wider Caribbean

Region

69. The Convention for the Protection andDevelopment of the Marine Environment of theWider Caribbean Region, 1983 (“CartagenaConvention”) entered into force in 1986. As ofNovember 2005 it has 21 parties in the region. Theregional seas covered by the Cartagena

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Convention include the Gulf of Mexico, theCaribbean Sea and adjacent areas of the AtlanticOcean. For protection of the marine environmentof the region, the Convention makes provisions forprevention of pollution from all sources, includingpollution by dumping of wastes. Article 6 enjoinsparties to take appropriate measures to prevent,reduce and control pollution of the marineenvironment of the region from dumping of wastesand other matter from ships, aircrafts and othersources. One of the measures introduced in article12 is the requirement of environmental impactassessment, in relation to pollution prevention.Article 12(1) obligates parties to undertake todevelop technical and other guidelines to assistthem in the planning of major developmentprojects in a way that prevents or minimizesharmful impacts in the Convention area. In relationto hazardous wastes, this requirement presents apreventive measure before any productiveactivities that may generate wastes are undertaken.For ongoing projects, article 12(2) obligates partiesto conduct assessments of potential impacts of theactivities on the marine environment.

70. Further, article 11 complements provisions of theBasel Convention and other conventions onhazardous wastes by providing for measures todeal with pollution emergencies, includingemergencies involving hazardous wastes. Itobligates parties to cooperate in responding topollution emergencies in the area, regardless of thecause of such emergencies in order to control,reduce or eliminate pollution, or the threat of it. Tobe able to respond to pollution emergencies,including those involving hazardous wastes, article11(1) and (2) further require parties to jointly orindividually develop and promote contingencyplans for responding to emergencies. They are alsoobligated to share any information on actual andpotential pollution threats with other parties toallow concerted efforts to be taken to prevent,reduce or eliminate impacts.

71. The Cartagena Convention, which preceded theBasel Convention, was not specifically intended toprovide for control of pollution by hazardouswastes, but pollution from all sources. The aboveprovisions concerning hazardous wastes were laterstrengthened by parties by their adoption of aProtocol Concerning Pollution From Land-basedSources and Activities in the Wider CaribbeanRegion in 1999. Among other things, this Protocolspecifically regulates hazardous wastes and listscharacteristics that parties should consider inevaluating waste substances for regulation.However, the Protocol has not yet come into force.

ii. Kuwait Region

ii.a. Kuwait Regional Convention for Cooperation onthe Protection of the Marine Environment from

Pollution

72. The Kuwait region is endowed with valuablenatural resources and a great biodiversity of plantand animal species. With all its valuable naturalresources, the Kuwait region faces great climaticlimitations and major developmental challenges.Its marine waters are shallow and virtuallylandlocked, experiencing extremes of salinity andtemperatures. The rate of evaporation in the regionis high, precipitation is poor and freshwater supplyis decreasing. Moreover, the risk of oil pollution inthe region is one of the highest anywhere, mainlydue to the high concentration of offshoreinstallations, tanker terminals, petrochemicalindustries and the huge volume of oil transportedby ships. The offshore installations are located inthe inner sea area, a critically balanced ecosystemwith higher levels of pollutants, salinity andtemperature. The rise in industrialization in theKuwait region, together with high populationgrowth and rapid urbanization, have resulted inever-greater impacts from land-based sources ofpollution on the region’s coastal waters.

73. To meet these challenges, eight governments of theregion adopted in 1978 the Kuwait RegionalConvention for Cooperation on the Protection ofthe Marine Environment from Pollution (“KuwaitConvention”) and an Action Plan establishedwithin the framework of the Convention, making itone of the first regional seas agreements. TheKuwait Convention entered into force in 1979.

74. The Kuwait Convention applies to the Kuwaitregional sea as defined in article II but does notapply to internal waters of parties. In the Preamble,parties recognized the growing threat of pollutionto marine life, fisheries, human health andrecreational uses of beaches, especially pollutionthrough discharge of oil and other harmfulsubstances from human activities on the land andsea. The parties also recognized the need to adoptan integrated development approach to the use ofthe marine environment and coastal areas so as toallow the achievement of environmental anddevelopment goals in a harmonious manner. TheKuwait Convention was to enable parties to carryout land use, industrial and other developmentalactivities in a way that does not deteriorate theenvironment. Therefore, one of the key objectivesof the Kuwait Convention, as stated in article III, isto prevent, abate and combat pollution of themarine environment in the region.

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75. To meet its objectives, the Kuwait Convention doesnot deal with hazardous wastes specifically butseeks to control pollution of the marineenvironment from a variety of sources includingpollution from ships, by dumping of wastes fromships and aircraft, from land-based sources, andfrom other human activities. Among otherrequirements, article XI (a) and (b) desires that eachparty includes an assessment of potentialenvironmental effects in any planned activityentailing projects within its territory, particularly inthe coastal areas and to disseminate information ofthe assessment of the activities. Article XI requiresparties to jointly and/or individually developguidelines in accordance with sound scientificpractice to assist them in planning theirdevelopment projects in a way that allows them tominimize harmful impacts of projects on themarine environment.

76. The Kuwait Convention also incorporates theKuwait Regional Action Plan, which mainly coversprogramme activities relating to oil pollution,industrial wastes, sewage and marine resources.For implementation and coordination of plannedactivities, article XVI establishes a RegionalOrganization for the Protection of the MarineEnvironment (“ROPME”) to provide institutionalframework for carrying out required measures.

77. In article XXIV, parties agreed to cooperate in thedevelopment of procedures for the effectiveimplementation of the Protocol adopted under theKuwait Convention, including procedures fordetection of violations of the Convention,reporting, accumulation of evidence on violationand for monitoring of the environment to detectcases of pollution and for dealing withemergencies. A Marine Emergency Mutual AidCentre was created in 1982. In the event that adispute is not settled through peaceful means, theKuwait Convention provides for settlement ofdisputes through the Judicial Commission for theSettlement of Disputes, established as an organwithin ROPME.

78. Article III(c) of the Kuwait Convention requiresparties to establish national laws and standards forimplementation of the provisions of the conventionand for the effective discharge of the obligationscreated under it. In article III(e), parties are requiredto ensure that their pollution prevention measuresdo not cause transformation of one type ofpollution to another which could be moredeleterious to the environment.

ii.b. Kuwait Regional Protocol on the Control ofMarine Transboundary Movements and Disposal of

Hazardous Wastes and other Wastes

79. Pursuant to the Kuwait Convention, partiesadopted several protocols, among which theKuwait Regional Protocol on the Control of MarineTransboundary Movements and Disposal ofHazardous Wastes and other Wastes (“ROPMEProtocol”) was adopted in 1998. The ROPMEProtocol, which entered into force in 2001, wasspecifically intended to make provisions for theproper management and control of transboundarymovement of hazardous and other wastes in theregion, which posed dangers to human health andthe environment. In the Preamble, the Protocolmakes reference to article 11 of the BaselConvention which authorizes parties to enter intobilateral, multilateral and regional agreements.

80. The ROPME Protocol strengthens provisions ofarticles IV and V of the Kuwait Convention, whichprovide for control and prevention of the marineenvironment in the region from pollution fromships and from dumping of wastes and other matterfrom ships and aircrafts. The substances controlledby the ROPME Protocol include wastes listed inAnnex I to the Protocol, which are consideredhazardous wastes, and other wastes, as containedin Annex II. It does not apply to a) radioactivewastes under regulation of another instrument; b)wastes from offshore installations that are regulatedby the Kuwait Protocol concerning MarinePollution resulting from Exploration andExploitation of the Continental Shelf of 1998; c)transboundary movement of wastes overland orairborne; or d) wastes whose movements anddisposal do not intrude upon the marineenvironment in the ROPME area.

81. The ROPME Protocol has various provisions thatare similar to those of the Basel Convention. Someprovisions provide, for example, for a reduction ofthe generation of hazardous and other wastes byparties to a minimum (article 9(1)), for preventionof pollution of the marine environment in the areawith hazardous and other wastes (article 4(3)), forlabelling, packaging and transportation ofhazardous wastes in conformity with generallyaccepted and recognized international standards(article 4(4)), and for all movements of wastes to beaccompanied by a movement document asrequired (article 4(5)).

82. In addition, the ROPME Protocol contains newprovisions which complement those of the BaselConvention and other instruments by providing, for

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example, that parties shall prohibit all personsunder their national jurisdictions from transportingor disposing of hazardous and other wastes unlesssuch persons are authorized or allowed to performsuch types of operations. This provision requiresthat parties put in place a registration system forwaste handlers.

83. Further, article 5(1) of the ROPME Protocolprohibits importation of hazardous and otherwastes into or through the region for purposes offinal disposal. Article 5(2) authorizes parties toimport wastes from non-parties into their territoriesonly for purposes of resource recovery, recycling,reclamation, direct re-use or alternative uses. Thisis allowed only if the state of import has thefacilities and technical capacity to manage thewastes in an environmentally sound manner and incompliance with Regional Technical Guidelinesdeveloped under the Protocol.

84. Article 8(1) prohibits parties from exporting wastesto other parties unless and until regional technicalguidelines for the environmentally soundmanagement of hazardous and other wastes aredeveloped under article 14(c) of the ROPMEProtocol. Among other things, the guidelines are tocontain a register of disposal facilities within partystates that have adequate technical capacities tomanage hazardous wastes and other wastes in anenvironmentally sound manner as required byarticle 13(5). Thereafter, a notification proceduresimilar to the one established by the BaselConvention must be followed by parties in themovement of wastes between parties as requiredby article 8(3)-(8).

85. Article 13 of the Protocol provides that ROPMEshall provide institutional framework for theimplementation of its provisions. To implement theProtocol, ROPME and its organs are, among otherthings, required to provide training of nationalexperts, particularly for monitoring andenforcement of the provisions of the Protocol;establish a unified monitoring system fortransboundary movement of hazardous and otherwastes; and to establish regional reception facilitiesto receive wastes; and to provide disposal andother services to parties in close cooperation withparties and relevant national and internationalorganizations, such as the Basel Secretariat.

iii. Convention to Ban the Importation into theForum Island Countries of Hazardous and RadioactiveWastes and to Control the Transboundary Movement

and Management of Hazardous Wastes within theSouth Pacific Region

86. In accordance with article 1, the Convention toBan the Importation into the Forum IslandCountries of Hazardous and Radioactive Wastesand to Control the Transboundary Movement andManagement of Hazardous Wastes within theSouth Pacific Region, 1995 (“WaiganiConvention”) applies to the South Pacific Region,where many small island states are situated. Thevast Exclusive Economic Zones of the South PacificStates are crossed by hazardous and radioactivewastes as vessels move between major producingand consuming countries. Therefore the area isunder serious threat of harm to health and theenvironment from the management andtransboundary movement of hazardous wastes.The Waigani Convention came into force in 2001.To date, the Convention has ten parties.

87. The Waigani Convention specifically recognizesthe growing threat to human health and theenvironment posed by the increasing generation ofhazardous wastes and their disposal inenvironmentally unsound manner. Articles 4,6 and8 of the Waigani Convention require parties to takeappropriate legal, administrative and othermeasures to ban the importation of radioactive andother wastes from outside the Convention area.Parties are also required to prohibit the dumping ofhazardous and radioactive wastes at sea. Thiscould solve problems of illegal dumping at sea asexplained in the introductory requirement, but themeasure requires very close supervision of waste ineach party's jurisdiction.

88. Further, the Waigani Convention makes wasteminimization requirements and requires thatparties prepare and adopt appropriatearrangements for liability and compensation forhazardous waste damage that are similar toprovisions of the Basel Convention. In addition,the Waigani Convention also incorporatesimportant international environmental lawprinciples to guide parties in taking measures todeal with hazardous wastes. For example, article 1requires parties to apply the precautionaryprinciple in taking measures to deal withhazardous wastes. Parties are obliged to apply thepolluter pays principle in taking measures to dealwith hazardous wastes (article 12).

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3. Bilateral Instruments on Hazardous Wastes

89. In addition to multilateral and regional agreements,there are bilateral agreements setting out rules andregulations for the management and transboundarymovement of hazardous wastes. A good example isthe 1986 Agreement between the Government ofthe United States of America and the Governmentof Canada concerning the TransboundaryMovement of Hazardous Wastes(“America/Canada Agreement”). Among otherthings, the America/Canada Agreement creates anobligation on the two parties to issue priornotification of exports of wastes to the competentauthorities of the destination country under article3. Prior notification of intended transboundarymovement of hazardous wastes is an importantprocedure that has been made a specificrequirement in many of the hazardous wasteconventions. The rest of the provisions of theAgreement are rather similar to those of theregional and multilateral agreements discussedabove. Pursuant to the America/CanadaAgreement, 900.000 tonnes of hazardous wastesdestined for the nearest recycling, disposal ortreatment sites cross the borders of the twocountries annually.

4. Non-Legally Binding Instruments on HazardousWastes

90. In addition to the legally binding rules andstandards established in global, regional andbilateral instruments, there exist a number ofhazardous wastes regulations established in non-legally binding agreements. One of the significantinstruments in this regard is Agenda 21, agreed toin 1992, at the United Nations Conference onEnvironment and Development prepared toprovide the basic framework and instrumentalityfor their targets, priorities, goals and responsibilityfor the protection of various components of theenvironment.

91. Chapters 20 and 21 of Agenda 21 are devotedexclusively to environmentally sound managementand prevention of illegal international traffic inhazardous wastes, including radioactive wastes.The overall objective of governments was toprevent, to the extent possible and to minimize thegeneration of hazardous wastes, as well as tomanage those wastes in such a way as to not causeharm to health and the environment. To meet theobjective, countries committed themselves toundertake a number of actions includingratification of the Basel Convention, promoting theminimization of generation of hazardous wastes,

establishing domestic standards for hazardouswastes, establishing centres for collection anddissemination of hazardous waste-relatedinformation at regional and other levels, andproviding financial support for cleaner technologyresearch and development programmes. Amongother developments, Agenda 21 has contributed tothe wide acceptance and ratification of the BaselConvention, making it a global treaty.


92. This section provides two examples of nationallegislation for implementation of rules, standardsand other requirements set out in internationalconventions and instruments for the managementand control of transboundary movement ofhazardous wastes, Japan and Kenya. Almost everyinternational instrument on hazardous wastes hasprovisions requiring legislative implementation atthe domestic level by parties and most of theparties have such legislation.

93. For example, article 9(5) of the Basel Conventionobligates each party to introduce appropriatenational legislation to prevent and punish illegaltraffic in hazardous and other wastes. Article 4(4) ofthe same Convention also obligates parties to takeappropriate legal measures to implement andenforce the provisions of the Convention in orderto meet set objectives. National legislation may bein the form of laws, rules, regulations, executiveorders, decrees and policies for the performance ofthe requirements set out in the internationalhazardous waste instruments. What form thenational action takes depends on practice andcustoms of the party concerned.

94. National legislation strengthens compliance withinternational instruments. Different legislativeapproaches have been adopted by countries toimplement hazardous waste instruments. Somenational legislation on hazardous wastes arecomposed of one framework or primary hazardouswaste law, implemented by specific subsidiaryregulations, as the Japan example shows. There arealso countries with one comprehensiveenvironmental law dealing with a number ofenvironmental subjects and/or components of theenvironment, within which hazardous wastes areprovided for in general provisions. Such lawsusually provide for detailed hazardous wastestandards and other regulations to be provided forin subsidiary legislation. Kenya provides a goodexample of this approach. There are also countriesthat have maintained and improved sectoral ormany separate legislation on various sectors -

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agriculture, chemicals, water and others, to beadministered under separate ministries- health,labour, etcetera and penal laws, within whichmanagement and control of transboundarymovement of hazardous wastes are provided for.

95. In the various approaches, hazardous wasteregulations may be of a command and controltype, emphasizing deterrence and punishment.Some of the laws also incorporate the use ofeconomic instruments as incentives ordisincentives for environmentally soundmanagement and strict control of transboundarymovement of hazardous wastes. It is important tonote that in federal governments, one or more ofthese kinds of laws usually exist at the national aswell as state and/or other lower levels. Whicheverthe approach, a good hazardous waste nationallegislation should have essential legislativecomponents. These components should include astatement of purpose or objectives, provisions onscope describing who or what the law covers,definitions of terms used, especially unfamiliarterms, an organizational structure, including themeans by which the law will be administered,especially bodies or national authorities chargedwith implementation of the law, powers conferredon the bodies, provisions for building of aknowledge base including collection ofinformation, interpretation and dissemination ofinformation; and a compliance scheme to enforceand promote observance with the legislativeprovisions and monitor compliance. In order toprotect health and the environment from negativeimpacts, domestic hazardous wastes legislationshould be backed by effective enforcement.

1. Japan

96. Japan became a party to the Basel Convention on17 September 1993. As part of its nationalimplementation efforts, Japan enacted the Law forthe Control of Export, Import and other SpecifiedHazardous Wastes and other Wastes (“JapaneseWaste Law”), which took effect in December 1993.The Japanese Waste Law is the main law in Japanon transboundary movement of hazardous wastes.Article 4(5) of the Japanese Waste Law and otherprovisions provide for the creation of subsidiaryregulations for implementation and pursuant tothese provisions, two implementing subsidiarylegislations, the Enforcement Ordinance of the Lawfor the Control of Export, Import and otherspecified Hazardous Wastes and other Wastes, andthe Enforcement Regulations of the for the Controlof Export, Import and other Specified HazardousWastes and other Wastes, have been created. Japan

also has other laws that apply to regulatehazardous wastes, besides the primary law. Theseinclude the Waste Disposal and Public CleansingLaw of 1970.

97. Article 1 of the Japanese Waste Law sets out theobjectives or purposes of the Law and states thatthe Law is intended to secure the effective andsmooth implementation of the Basel Conventionand other international agreements by introducingcontrol measures for the export, import,transportation and disposal of specified hazardouswastes, and thereby, to contribute to the protectionof human health and conservation of the livingenvironment.

98. Articles 2, 3 and other provisions of the JapaneseWaste Law set out the scope and stipulate that theLaw regulates "specified hazardous wastes,”importers, exporter, disposers and other wastehandlers. Wastes that arise from the normaloperation of vessels and radioactive wastes areexcluded from the scope of the Japanese WasteLaw as stipulated in article 2(1). To clarify the scopeof the Law, the definition part in article 2 specifieswastes considered as "specified hazardous wastes"to be regulated by the Law. These include materialslisted in Annex I of the Basel Convention, materialsto be designated as such by a Japanese Cabinetorder (an executive order) and materials designatedas such by a joint ordinance of Japanese Ministersof Health and Welfare, and by International Tradeand Industry.

99. The Japanese Waste Law's organizational structureincludes the Minister of International Trade andIndustry and the Director General of the JapaneseEnvironment Agency. They are responsible forissuing all applications for exports of controlledhazardous wastes as provided in article 4(2). TheLaw requires, in article 4(1) and (2), that any personwishing to export a specified hazardous waste shallobtain prior export permission. One of the mattersto be considered by the Director General inprocessing the application and determiningwhether to grant an export permit is whethersufficient measures will be taken by the intendingexporter to prevent environmental pollution, asstipulated in article 4(3). Article 5(1) requires thatwhere an export permit is issued, the Minister shallalso issue an export movement document, whoseformat is to be defined by the ordinance of theMinister, and include a description of the mannerin which transport of wastes is to be executed.Article 6(1) requires all movements of hazardouswastes to be accompanied by the exportmovement document and to comply with export

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movement requirements specified in the exportmovement document. Imports of regulated wastesare similarly regulated as stipulated in articles 8, 9and other provisions of the Japanese Waste Law.

100. In accordance with provisions of the BaselConvention, the Japanese Waste Law also strictlyregulates disposal of hazardous wastes in articles12 and 13, provides for re-importation of wastes incertain circumstances in article 14, and providesfor penalties for non-compliance. In addition,article 3 provides for building of a knowledge baseand requires, among other things, that the Ministerand responsible bodies develop and publicizebasic issues concerning secure, smooth andeffective implementation of the Basel Conventionand issues regarding the implementation policiesfor preventing the damage to human health and/orthe living environment which may be posed by theexport, import, transportation and disposal ofspecified hazardous wastes.

2. Kenya

101. In Kenya, it became clear that hazardous wastesform a threat to human health and theenvironment. For example, by 1989, foreign wastetraders had set up an enterprise importinghazardous wastes from industrialized countries fordisposal, without having any waste disposal facilityin the country. And in 1999, a freighter, BrumaAmericana, made several attempts to dock at theport of Mombasa with its load of over 20,000tonnes of toxic wastes, trying to dispose of it in thecountry. The vessel was denied entry and it waslater discovered that the wastes originated from anindustrialized country.

102. To collaborate with other governments inaddressing these problems, Kenya became a partyto the Basel Convention on 1 June 2000, andtherefore had to also take measures to implementthe provisions of the Convention. On its part,Kenya enacted the Environmental Managementand Co-ordination Act (“EMCA”) in 1999, whichbecame operational in January 2000. EMCAprovides a comprehensive framework for themanagement of the environment in Kenya andcontains provisions on steps to be taken toimplement the government's commitments ininternational agreements. In particular, Section 124provides that:

1999 Environmental Management andCoordination Act (Section 124)

"Where Kenya is a party to an international treaty,convention or agreement, whether bilateral ormultilateral, concerning the management of theenvironment, the Authority shall, subject to thedirection and control of the council, inconsultation with lead agencies: (a) initiatelegislative proposals for consideration by theAttorney General, for purposes of giving effect tosuch treaty convention or agreement in Kenya orfor enabling Kenya to perform her obligations orexercise her rights under such treaty, convention oragreement; and (b) identify other appropriatemeasures necessary for the nationalimplementation of such treaty, convention oragreement… “

103. With regard to the Basel Convention requirements,EMCA contains detailed provisions for regulation ofhazardous wastes. Relevant provisions of EMCAinclude the polluter pays principle and economicincentives for proper management and disposal ofhazardous wastes, backed by a number ofsanctions.

104. EMCA contains all the essential legislative elementsa clear statement of purpose, a comprehensivesection which defines terms such as "ecosystem”,detailed provisions for regulation of hazardouswastes along the requirements of the 1989 BaselConvention, detailed provisions creatingimplementing agencies and institutions and createsfinancial mechanisms for implementation. Amongthe institutions created to implement the EMCA isthe National Environment Management Authority(“NEMA”) to exercise general supervision andcoordination over all matters relating to theenvironment and to be the principal instrument ofgovernment in the implementation of all policiesrelating to the environment. Functions of NEMAinclude the establishment of hazardous wastes andother environmental standards required by EMCA.In carrying out its functions, NEMA is required tocollaborate with a number of Lead Agencies,including local authorities and governmentministries with functions related to theenvironment. Section 31 of EMCA also creates aPublic Complaints Committee (“PCC”) onenvironmental matters with the responsibility toinvestigate any allegations or complaints againstany person or against NEMA in relation to thecondition of the environment in Kenya and tomake recommendations for remedial actions to theNational Environment Council. In addition, Section125 of EMCA creates a National EnvironmentTribunal (“NET”) whose functions include hearingappeals on environmental matters.

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105. Since the passage of EMCA, Kenya has madeappreciable implementation efforts. Thegovernment has established NEMA, NET, the PCCand all other bodies created by EMCA and they arein full operation. In collaboration with UNEP, areport on hazardous waste situation in the countryhas been prepared to help in planning anddesigning appropriate methods to reduce thegeneration of hazardous wastes, including theimplementation of economic instruments. NEMA iscurrently developing environmental standards,including standards for hazardous wastes. Further,in compliance with public participation provisionsof EMCA, the NEMA, NET and the PCC have beenconducting awareness workshops throughout thecountry to educate the public and governmentofficials on their rights and responsibilities underEMCA and on a variety of environmental lawsubjects with which the majority of Kenyans arenot yet familiar.

106. EMCA applies in addition to sectoralenvironmental laws in Kenya, such as theAgriculture Act and the Public Health Act. Section148 of EMCA requires the existing sectoralenvironmental laws to be modified as necessary inorder to give effect to EMCA and that in case of anyconflict between the provisions of EMCA and theprovisions of the sectoral laws, the provisions ofEMCA shall prevail.

Masa Nagai, Senior Legal Officer, Division ofPolicy Development and Law, UNEP

Dr. Jane Dwasi, UNEP Consultant, University ofNairobi

Barbara Ruis, Legal Officer, Division of Policy Development and Law, UNEP

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Resources

Internet Materials

1989 BASEL CONVENTION TEXT available athttp://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXXVII/treaty18.asp

ADMIRALITY AND MARITIME LAW GUIDE: INTERNATIONAL CONVENTIONS available athttp://www.admiraltylawguide.com/conven/civilpol1969.html

AUSTRALIAN TREATY SERIES available at http://www.austlii.edu.au/au/other/dfat/treaties/notinforce/2002/25.html

BASEL PROTOCOL ON CIVIL LIABILITY available at http://www.basel.int/meetings/cop/cop5/docs/prot-e.pdf orhttp://www.basel.int/pub/protocol.html

CANADIAN/AMERICAN AGREEMENT ON HAZARDOUS WASTE available athttp://stabenow.senate.gov/stoptrash/transboundary.htm

CARTAGENA CONVENTION TEXT available at http://www.cep.unep.org/pubs/legislation/cartxt.html

CHINESE ENVIRONMENTAL PROTECTION LAWS available at http://www.zhb.gov.cn/english/law.php3?offset

CHINESE NATIONAL REPORT ON SUSTAINABLE DEVELOPMENT (1997) available athttp://www.zhb.gov.cn/english/SD/21cn/national_report/nr-c3-s13.htm

DR. ABDUL RAHMAN AL-AWADI, ROPME SEA AREA: MEETING THE CHALLENGE available athttp://www.unep.ch/seas/kapcap.html

ENVIRONMENT CANADA, TRANSBOUNDARY MOVEMENT BRANCH, CANADA-U.S.A. AGREEMENT ON THE TRANSBOUNDARY

MOVEMENT OF HAZARDOUS WASTES available at http://www.ec.gc.ca/tmb/eng/facts/canusa_e.html

GLOBAL MARINE LITTER INFORMATION GATEWAY available athttp://marine-litter.gpa.unep.org/framework/region-13-next.htm

INTERNATIONAL FUND CONVENTION available athttp://www.imo.org/Conventions/mainframe.asp?topic_id=256&doc_id=661 OR http://www.iopcfund.org

JOSEF LEITMAN, INTEGRATING THE ENVIRONMENT IN URBAN DEVELOPMENT: SINGAPORE AS A MODEL OF GOOD PRACTICE

available at http://www.worldbank.org/html/fpd/urban/solid_wm/uwp7.pdf

LONDON CONVENTION available at http://www/londonconvention.org orhttp://sedac.ciesin.org/pidb/texts/marine.pollution.dumping.of.wastes.1972.html

REGIONAL AND SUB-REGIONAL CENTRES FOR TRAINING AND TECHNOLOGY TRANSFER REGARDING THE MANAGEMENT OF

HAZARDOUS WASTES AND OTHER WASTES AND THE MINIMIZATION OF THEIR GENERATION available athttp://www.basel.int/pub/regcentrs.html

UNITED NATIONS ENVIRONMENT PROGRAMME, DIVISION OF TECHNOLOGY, INDUSTRY AND ECONOMICS available athttp://www.unepie.org

YEARBOOK OF INTERNATIONAL CO-OPERATION ON ENVIRONMENT AND DEVELOPMENT, TEXT OF WAIGANI CONVENTION availableat http://www.greenyearbook.org/agree/haz-sub/waigani.htm

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AMERICAN JOURNAL OF PUBLIC HEALTH, (Vol. 78, at 654-668, 1988).

BULLETIN OF ENVIRONMENTAL CONTAMINATION AND TOXICOLOGY, (Vol. 49, 1992).

BULLETIN OF ENVIRONMENTAL CONTAMINATION AND TOXICOLOGY, (Vol. 53, 1994).

Centers for Investigative Reporting & Bill Moyers, GLOBAL DUMPING GROUND: THE INTERNATIONAL TRADE IN HAZARDOUS

WASTES (1990).

EUROPEAN JOURNAL OF PHARMACOLOGY, (Vol. 248, at 166-179, 1993).

Fina P. Kaloianova & Mostafa A. El Batawi, HUMAN TOXICOLOGY OF PESTICIDES, (1991).

INTERNATIONAL DEVELOPMENT RESEARCH & THE UNITED NATIONS ENVIRONMENTAL PROGRAMME, ECOSYSTEM DISRUPTION AND

HUMAN HEALTH: SUMMARY REPORT OF A CONSULTATION HOSTED BY IDRC AND UNEP, (March 2002).

Josef Leitmann & World Bank, INTEGRATING THE ENVIRONMENT IN URBAN DEVELOPMENT: SINGAPORE AS A MODEL OF GOOD

PRACTICE, (1999).

Jytte Ekdahl, Interpol Secretariat, THE WORK OF INTERPOL IN COMBATING ENVIRONMENTAL CRIME, IN UNITED NATIONS

ENVIRONMENT PROGRAMME, ENFORCEMENT AND COMPLIANCE WITH MEAS: THE EXPERIENCES OF CITES, MONTREAL PROTOCOL

AND BASEL CONVENTION (1999).

Mark Jaffe, TRACKING THE KHIAN SEA, (Philadelphia Inquirer, July 15, 1988).

Martin W. Holdgate, A REPORT BY THE UNITED NATIONS ENVIRONMENT PROGRAMME, THE WORLD ENVIRONMENT 1972-1982, (Mohammed Kassas & Gilbert F. White Eds., 1982).

PRINCIPLE 6 OF THE DECLARATION OF THE UNITED NATIONS CONFERENCE ON THE HUMAN ENVIRONMENT, UNITED NATIONS,REPORT OF THE UNITED NATIONS CONFERENCE ON THE HUMAN ENVIRONMENT, STOCKHOLM (5-16 JUNE 1972), (U.N.A/CONF.48/14/Rev.1).

RECOMMENDATIONS 4, 5,7, 14 AND 86, UNITED NATIONS, REPORT OF THE UNITED NATIONS CONFERENCE ON THE HUMAN

ENVIRONMENT, STOCKHOLM (5-16 JUNE 1972), (U.N. A/CONF.48/14/Rev.1).

SCANDINAVIAN JOURNAL OF WORK AND ENVIRONMENTAL HEALTH, (Vol. 20, at 166-179, 1994).

Stephen O. Anderson & Durwoo Zaelke, INDUSTRY GENIUS: INVENTIONS AND PEOPLE PROTECTING THE CLIMATE AND FRAGILE

OZONE LAYER, (2003).

THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT (UNCED), (Introduction by Stanley P. Johnson),the Earth Summit, International Environmental Law and Policy Series, 1993).

UNITED NATIONS ENVIRONMENT PROGRAMME, ENVIRONMENTAL LAW GUIDELINES AND PRINCIPLES: ENVIRONMENTALLY SOUND

MANAGEMENT OF HAZARDOUS WASTES, (June 1987).

UNITED NATIONS ENVIRONMENT PROGRAMME, STATE OF THE ENVIRONMENT AND SPECIAL ASSIGNMENT UNIT, THE STATE OF THE

ENVIRONMENT: TEN YEARS AFTER STOCKHOLM, (January 1979).

UNITED NATIONS ENVIRONMENT PROGRAMME, THE STATE OF THE WORLD ENVIRONMENT, (April 1989).

YEARBOOK OF INTERNATIONAL CO-OPERATION ON ENVIRONMENT AND DEVELOPMENT, (2001/2002).

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12. CHEMICALS

I. Introduction

1. Chemicals play an important role in daily life andhave contributed greatly to human well being.Agricultural chemicals have raised farming yieldsby killing crop pests and industrial chemicals havemade possible an endless array of useful products.Chemical substances are used in virtually everyaspect of modern society and are used in manyindustries, including manufacturing andtransportation and service sectors, such astelecommunications, banks, investment firms andcoffee houses.

2. However, once released into the natural world,chemicals can persist for years and have long-termhealth and ecological consequences that werenever anticipated or intended. As scientificknowledge and understanding of chemicals haveincreased, so have concerns about their impacts onhuman health and the environment. More than100,000 chemical products, many produced onlarge scale, have been introduced to commercialmarkets. Associated risks are often only discoveredlater, when the damaging effects of certainchemicals have manifested.

3. Chemicals are by no means confined to industrialcentres. Due to their sometimes persistent nature,chemicals can be transported in nature thousandsof kilometres from where they were used. Theymove up the food chain and are trapped in fattytissue of human beings, animals and plants.

4. In 1992, the United Nations Conference onEnvironment and Development adopted asustainable development agenda for the 21stcentury, called Agenda 21. It stated that “Grosschemical contamination, with grave damage tohuman health, genetic structures and reproductiveoutcomes, and the environment, has in recenttimes been continuing within some of the world’smost important industrial areas.… The long-rangeeffects of pollution, extending even to thefundamental chemical and physical processes ofthe Earth’s atmosphere and climate, are becomingunderstood only recently…” (para. 19.2)

5. Today, more chemicals are produced than ever andtheir production is projected to increase further inthe future. (See Table 1). Toxic chemicals areproduced worldwide by both developing anddeveloped countries and international trade inchemicals is an important part of today’s globalizedworld.

6. However, the export of chemicals that are subjectto strict use controls in the countries ofmanufacture into countries that have less advancedchemical management schemes has raised graveconcerns. These concerns are particularly relevantto developing countries and countries witheconomies in transition, as they import toxicchemicals often without adequate information onthese chemicals and without the infrastructure tomanage them in an environmentally soundmanner.

II. The International Framework

7. The increase in international trade in chemicalsand the realization that their impacts are not

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limited to the country of use but extend regionally,or even globally, stimulated the need forinternational and multilateral cooperation in theirmanagement.

8. The first legal interventions to manage toxicchemicals took place at the national level andfocused on chemicals that were proved dangerousafter their production and introduction on themarket. These rules usually provided for thereductions of chemical emissions and restrictionson certain forms of their use. They were primarilyaimed at the protection of human health, dealingmainly with security at the work place and thesafety of consumer goods. In recent years, the focushas shifted from regulation of emissions to a moreprecautionary approach and from ananthropocentric to a broader environmentalapproach.

9. Early international efforts to tackle theenvironmental and public health problems relatedto chemicals were generally devoted to improvingthe availability of information about suchsubstances. In 1976 UNEP established theInternational Register of Potentially ToxicChemicals (“IRPTC”) to compile and circulateinformation on chemical hazards.

10. Cooperation between countries was first achievedwith voluntary instruments concerninginternational trade in chemicals. In response to thedramatic growth in chemical production and trade,the United Nations Environment Programme andthe Food and Agriculture Organization of theUnited Nations (“FAO”) started developing andpromoting voluntary information exchangeprogrammes in the mid-1980s. The InternationalCode of Conduct on the Distribution and Use ofPesticides was adopted in 1985 by FAO, with theobjective of setting forth responsibilities andestablishing voluntary standards of conduct for allpublic and private entities engaged in or affectingthe distribution and use of pesticides. The LondonGuidelines for the Exchange of Information onChemicals in International Trade are a set ofguidelines adopted by the Governing Council ofUNEP in 1987 for use by governments with a viewto increasing chemical safety in all countriesthrough the exchange of scientific, technical,economic and legal information on chemicals.Both these instruments were integrated into alegally binding agreement in 1998 in theRotterdam Convention on the Prior InformedConsent Procedure for Certain HazardousChemicals and Pesticides in International Trade(“PIC Convention”).

11. Other legally-binding international instrumentswere adopted to address specific related issues,such as chemical safety in the workplace, thedisposal of hazardous substances and the emissionof certain chemicals into the atmosphere. Thoseinstruments are discussed in more detail in otherthematic chapters of this Training Manual. Theparticular instruments that address these specificchemical-related problems are listed below.

12. International agreements relating to safety at workand the prevention of chemical accidents wereconcluded by the International LabourOrganization in 1990 and 1993 respectively in theConvention concerning Safety in the Use ofChemicals at Work and the Conventionconcerning the Prevention of Major IndustrialAccidents. (See chapter 23). The ViennaConvention for the Protection of the Ozone Layer(1985) and its Montreal Protocol (1987) providecontrol mechanisms for chemicals that deplete theozone layer. (See chapter 9). The United NationsFramework Convention on Climate Change and itsKyoto Protocol target substances known to causeglobal warming. (See chapter 10). Some other airpollutants were addressed by the (Geneva)Convention on Long-Range Transboundary AirPollution and its protocols. (See chapter 8). The1989 Basel Convention covers those chemicalsubstances defined as “hazardous wastes” underthe convention (as discussed in chapter 11).

13. The PIC convention is one of the two globalConventions discussed in this chapter. The otherinstrument is the Stockholm Convention onPersistent Organic Pollutants (“POPs Convention”),which bans or restricts trade in and use of some ofthe most dangerous chemical substances known.Two two global conventions are discussed morefully below.

14. As demonstrated above, chemicals are regulated inrelation to different aspects and stages of their lifecycle by a great number of agreements adopted bydifferent organizations. A more integratedapproach on the global management of chemicalshad long been advocated. In chapter 19 of Agenda21, on "Environmentally Sound Management ofToxic Chemicals, including Prevention of IllegalInternational Traffic in Toxic and DangerousProducts" called for the creation of a forum forintergovernmental bodies dealing with chemicalrisk assessment and management (para. 19.76).Accordingly, the Intergovernmental Forum onChemical Safety was established in 1993. Chapter19 also advocated the expansion of programmeson chemical risk assessment, such as theInternational Programme on Chemical Safety, run

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by UNEP, ILO and the World Health Organization(para. 19.14). Thus, the Inter-OrganizationProgramme on the Sound Management ofChemicals (“IOMC”) was established to promotecoordination among international organizationsinvolved in implementing chapter 19.

15. Priorities set out in chapter 19 of Agenda 21 are:

- Expanding and acceleration of internationalassessment of chemicals risks (programme19.A);

- Harmonization of classification and labelling ofchemicals (programme 19.B);

- Information exchange on toxic chemicals andchemical risks (programme 19.C);

- Establishment of risk reduction programmes(programme 19.D);

- Strengthening of national capabilities andcapacities management of chemicals(programme 19.E); and

- Prevention of illegal international traffic in toxicand dangerous products (programme 19.F).

16. Since the United Nations Conference onEnvironment and Development and Agenda 21,dozens of global and regional chemicalmanagement agreements and programmes havebeen initiated, strengthened or completed. In 2002,the World Summit on Sustainable Developmentagreed to a comprehensive strategic approach forthe international management of chemicals.Following this decision, the UNEP GoverningCouncil adopted a plan to develop a StrategicApproach to International Chemicals Management(“SAICM”) by 2005. SAICM aims at ensuring thatchemicals are used and produced in ways that leadto the minimization of significant adverse effects onhuman health and the environment. The strategicapproach will address a broad array of chemicalissues including risk assessment and management,availability and accessibility of information, workersafety, pesticide use and disposal, hazardouswastes, classification and labelling and researchand monitoring. It also seeks to enhance thecoherency and efficiency among internationalactivities related to chemicals.

1. Rotterdam Convention on the Prior InformedConsent Procedure for Certain Hazardous Chemicals

and Pesticides in International Trade

17. Growth of international trade in chemicals duringthe 1960s and 1970s raised concerns about thepotential harmful results of such trade. Developingcountries lacking adequate infrastructure tomonitor the import and use of toxic chemicals

were seen to be particularly vulnerable. In 1989,FAO’s International Code of Conduct and UNEP’sLondon Guidelines (see para. 9 above) were eachrevised amended to introduce the voluntary PriorInformed Consent (“PIC”) procedure. Together,these instruments helped to ensure thatgovernments had the necessary information toassess the risks of hazardous chemicals and to takeinformed decisions on their future import andmanagement.

18. Concluding that there was a need for mandatorycontrols, Agenda 21 called for a legally bindinginstrument on the PIC procedure by the year 2000(para. 19.38(b)). Negotiations began in March1996 and were expeditiously completed in onlytwo years. The Rotterdam Convention was adoptedon 10 September 1998 and entered into force on24 February 2004.

19. The Convention creates a legally bindingobligation for implementation of the Prior InformedConsent procedure. The procedure is a means forformally obtaining and disseminating the decisionsof importing countries as to whether they wish toreceive shipments of a certain chemical. Itfacilitates information exchange aboutcharacteristics of chemicals and thereby informsthe importing country's national decision-makingprocesses for their importation and use. TheConvention does not ban the global trade or use ofspecific chemicals.

20. The PIC Convention’s aim is “...to promote sharedresponsibility and cooperative efforts amongParties in the international trade of certainhazardous chemicals in order to protect humanhealth and the environment from potential harmand to contribute to their environmentally sounduse, by facilitating information exchange abouttheir characteristics, by providing for a nationaldecision-making process on their import andexport and by disseminating these decisions to theParties.” (article 1).

21. The scope of the PIC Convention, in terms of thechemicals to be covered, was a difficult issue. A‘chemical’ is defined in the Convention as “...asubstance whether by itself or in a mixture orpreparation and whether manufactured orobtained from nature, but does not include anyliving organism...” (article 2). The chemicalscovered are divided into two categories: industrialchemicals that are banned or severely restricted forhealth or environmental reasons and severelyhazardous pesticide formulations that presentproblems under conditions of use in developingcountries or countries with economies in transition.

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22. The Convention covered 41 chemicals including24 pesticides, 6 severely hazardous pesticideformulation and 11 industrial chemicals (Annex IIIas amended by the First Meeting of the Conferenceof the Parties (“COP”) by its decision RC 1/3 of 24September 2004). Many more are expected to beadded in the future.

23. Exempt from the PIC Convention are certain groupsof chemicals that are regulated under otherinternational regimes. These are narcotic drugs andpsychotropic substances, radioactive materials,wastes, chemical weapons, chemicals used as foodadditives and food. Chemicals in small quantitiesnot likely to affect human health or theenvironment are also excluded, provided that theyare for research and analysis or for personal use.

Major Components of the Rotterdam Convention

a) Institutions

24. The Convention establishes a Conference of theParties (“COP”) to oversee its implementation(article 18). The first Meeting of the COP (COP-1)was held in September 2004.

25. At COP-1, the Chemical Review Committee(“CRC”) was formally established to reviewnotifications and nominations from parties and tomake recommendations on which nominatedchemicals should be included in the PIC procedure(article 18.6). The 31 members of the Committeeare appointed by the COP and comprise experts inchemicals management who are appointed on ageographically equitable basis.

26. The COP and its subsidiary bodies are serviced bya Secretariat. Its main functions are to makearrangements for the meetings of the COP and itssubsidiary bodies, to facilitate assistance to partiesin implementing the Convention, and to ensure thenecessary coordination with the secretariats ofother relevant international bodies (article 19). It isalso the interface between the parties and theConvention’s other institutional bodies in the PriorInformed Consent procedure. The Secretariat islocated in Geneva, Switzerland and its functionsare carried out jointly by the Executive Director ofUNEP and the Director-General of FAO.

b) PIC Procedure

27. What is referred to as the PIC procedure can bedivided into two phases: (1) the phase ofinformation exchange, and (2) the inclusion ofchemicals into Annex III of the Convention and the

resulting mandatory procedures governing importdecisions, which comprise the core of the PICprocedure.

28. The first requirement of the Convention is thatparties establish Designated National Authorities(“DNA”) to be the contact points for informationexchange and for communication of permissionsunder the PIC procedure (article 4).

c) Information Exchange

29. The information exchange process is triggered byindividual country actions. When a country takes afinal regulatory action that bans or severely restrictsa chemical within its jurisdiction, it must, throughits DNA, inform the Secretariat within 90 days ofthis action (article 5). The notification must containinformation about the action and the chemicalitself, as required in Annex I to the Convention. TheSecretariat then verifies within six months that thenotification contains all necessary information andforwards a summary of this information to allparties. If the notification is incomplete the countryis informed about the problem. In addition theSecretariat sends out compilations of thenotifications received to the parties every sixmonths as PIC Circulars.

30. As well as notifying the Secretariat about itsdomestic regulatory action to ban or severelyrestrict a chemical that it exports, the party has tonotify the DNAs in countries intending to importshipments of the chemical (article 12). Therequired content of this export notification is set outin Annex V of the Convention. Export notificationmust be provided prior to the first export followingadoption of the corresponding final regulatoryaction and on an annual basis before the firstexport in each calendar year thereafter. One repeatnotification must be sent if the importing countryfails to acknowledge receipt of the first notification.

d) Core PIC Procedure

31. At the core of the PIC procedure is the placing of achemical on the multilateral PIC list in Annex III ofthe Convention. Parties are then required toprovide their ‘informed responses’ to consent, ornot, to import that chemical. Once an informedresponse has been circulated, export of thatchemical can take place only to a country that hasexplicitly authorized its import.

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e) PIC Listing

32. There are two ways to propose the inclusion of achemical in the PIC list in Annex III: (1) byrestriction notification, or (2) by problem pesticideproposal. A party that provides notification of a banor severe restriction may trigger the PIC listingprocess, if its notification conforms to Annex Irequirements and is supported by another country’snotification, as described below (article 5). Inaddition, a developing country party, or a partywith economy in transition, may inform otherparties, through the Secretariat, that it isexperiencing problems caused by a severelyhazardous pesticide formulation under conditionsof use in its territory (article 6). The proposal mustmeet information requirements set out in Annex IV.Part 1. It also should be noted that chemicalspreviously listed under the UNEP and FAOvoluntary codes, prior to the entry into force of thePIC Convention, were considered for listing inAnnex III of the Convention independently of therestriction notification or pesticide problemprocesses (article 8).

33. As soon as the Secretariat has received a problempesticide proposal or similar regulatorynotifications from two countries of two differentPIC regions, the core PIC procedure is initiated. AtCOP-1 the eight PIC regions were identified as:Africa, Asia, Europe, Latin America and theCaribbean, Near East, North America andSouthwest Pacific. The Secretariat then forwardsthe proposal to the Chemical Review Committee(“CRC”). The CRC will then consider (in line withcriteria set out in Annex II in case of banned orseverely restricted chemicals or Annex IV forseverely hazardous pesticide formulations)whether it will recommend to the COP to list thesubstance in Annex III of the Convention (articles5.6 and 6.5). The power to list a chemical (article7) or to remove a chemical from the list (article 9)actually rests with the COP and comes into effecton the date set by the COP (article 22.5).

34. If the CRC intends to recommend the inclusion ofa substance, it prepares a draft Decision GuidanceDocument (“DGD”) (article 7). The purpose of aDGD is to help governments to analyze thepotential hazards associated with the handling anduse of the chemical and to take the decisionwhether to allow future import of the chemical.Both, the recommendation and the draft DGD areforwarded to the COP. If the COP follows therecommendation and approves the draft DGD thechemical is listed in Annex III and the DGD isforwarded by the Secretariat to the DNA of allparties.

f) Import Decisions

35. The DGD is sent together with an Importing CountryResponse Form and instructions for completion.Parties are to return their import decisions throughthis form within 90 days. The Secretariat thensummarizes and compiles the responses in the PICCircular and distributes them to DNAs every sixmonths. The import decision can be a finaldecision (to consent, to consent subject to specifiedconditions or not to consent), or an interimresponse (with the statement that a final decision isunder consideration), or a request for furtherinformation (article 10). If a country fails to provideits import decision, the Secretariat sends a reminderletter and, if necessary, helps the importing countryto provide a response within the next 12 months. Inthe meantime, the status quo of trade relations ismaintained, which means that export maycontinue, if the chemical contains a chemical thatis registered or has previously been imported andused in the importing country. Without restriction,or explicit consent to the import had been soughtand received by the exporter (article 11).

36. Decisions taken by the importing party must be‘trade neutral’ to be in line with international traderules. This means that, if the party decides not toconsent to accepting imports of a specificchemical, it must also stop domestic production fordomestic use or imports from any non-party.

g) General Obligations

37. Each party is to take measures necessary toestablish and strengthen its national infrastructuresand institutions for the effective implementation ofthe Convention (article 15). Implementingmeasures include legislation and administrativemeasures and also cover the establishment ofnational registers and databases compiling safetyinformation for chemicals. They may also entail theencouragement of initiatives by industry topromote chemical safety, such as throughvoluntary agreements. Countries also are toexchange information generally relevant to theimplementation of the Convention (article 14)ensure that importers, relevant authorities and,where possible, users are informed of notificationsreceived (article 11).

h) Technical Assistance

38. The Convention provides for technical assistanceto developing countries and countries witheconomies in transition (article 16). This shouldfacilitate the development of the infrastructure andcapacity to manage chemicals in line with the

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Convention. The Secretariat is charged withworking on a technical assistance strategy topromote implementation of the Convention. Forthe same purpose, the Secretariat was entrusted byCOP-1 with exploring options for a potentialfinancial mechanism.

i) Non-Compliance

39. The COP is charged with the responsibility ofdeveloping procedures for dealing with non-compliance (article 17). COP-1 convened an open-ended ad hoc working group to conductdeliberations on the issue.

2. Stockholm Convention on Persistent OrganicPollutants

40. A class of chemicals, called persistent organicpollutants (“POPs”), has aroused particularenvironmental and human health concerns. MostPOPs are powerful pesticides. These are chemicalsdesigned to be broadly distributed in theenvironment, to remain operative over longperiods of time and to poison specific aspects of anecosystem. Other chemicals are produced to servea range of industrial purposes. Yet others arereleased as unintended by-products of combustionand industrial processes. While the risk level variesfrom POP to POP, they share the following fourproperties:

- High toxicity;- Persistence, lasting for years or even decades

before degrading into less dangerous forms;- Mobility, as they evaporate and travel long

distances through the air and through water;and

- Higher concentration further up the food chainand accumulation in fatty tissues.

41. POPs are widely distributed throughout theenvironment. Through global distillation andocean currents, they travel from temperate andtropical regions (where they are commonly used)to be deposited in the colder regions of the poles.Concentrations there tend to be high because thereis less evaporation and transport from colderregions. Thus indigenous peoples in the Arctichave some of the highest recorded levels of POPseven though they have certainly received littlebenefit from the chemicals’ original use.

42. In 1995 UNEP Governing Council initiated anassessment process for a list of 12 POPs. Inresponse, an ad hoc Working Group on POPs wasconvened which developed a work plan forassessing available information on the chemistry,

sources, toxicity, environmental dispersion andsocio-economic impacts of these POPs. TheWorking Group recommended immediate actionand an Intergovernmental Negotiating Committeewas set up. The Committee drafted the text of theStockholm Convention, which opened forsignature in May 2001 and entered into force on 17May 2004.

43. The Convention seeks to “...protect human healthand the environment from persistent organicpollutants” (article 1). It does so by eliminating themost dangerous POPs, supporting the transition tosafer alternatives and by cleaning-up old stockpilesand equipment containing POPs.

44. The Stockholm Convention addresses thechallenge posed by POPs by starting with 12 of theworst; also referred to as the dirty dozen. They aredivided into three groups:

(1) Intentionally produced chemicals; (2) Unintentionally produced substances

(byproducts of chemical processes); and (3) Stockpiles.

45. Intentionally produced POPs are listed in Annex A(POPs for elimination) and Annex B (POPs forrestriction). Nine of the intentionally producedPOPs are pesticides: aldrin, chlordane, DDT (theonly chemical in Annex B), dieldrin, endrin,heptachlor, hexachlorobenzene (“HCB”) mirexand toxaphene. A family of intentionally producedPOPs are industrial chemicals, namelypolychlorinated biphenyls (“PCBs”). In addition,the POPs Convention covers two families ofunintentionally produced chemical by-products,listed in Annex C of the Convention:polychlorinated dioxins and furans. They arepotent cancer-causing chemicals and result fromcombustion and industrial processes. It should benoted that HCB is also produced as an intermediateindustrial chemical and as a unintentionalbyproduct.

Major Components of the Stockholm Convention

a) Intentionally Produced POPs

46. The Stockholm Convention bans all productionand use of the pesticides endrin and toxaphene andrequires all parties to stop production of aldrin,dieldrin and heptachlor (artice 3). Those wishing touse remaining supplies of the latter threesubstances must publicly register for exemptionsfor narrowly allowed purposes and limited timeperiods (article 4). The production and use ofchlordane, hexachlorobenzene and mirex is

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restricted to narrowly prescribed purposes and tocountries that have registered for exemption.

47. PCBs are mainly found in electric installation andequipment such as transformers and capacitors.The Stockholm Convention bans the production ofPCBs but gives countries until 2025 to phase outthe use of in-place equipment containing PCBs(Annex A Part II). However, countries are to exerttheir best efforts to identify, label and remove PCBsfrom equipment in use. Recovered PCBs must betreated and eliminated by 2028. Trade in PCB-containing equipment is allowed only for thepurpose of environmentally sound wastemanagement. The COP will review the progress onthe 2025 and 2028 targets every five years.

48. Production and use of DDT is limited to controllingdisease vectors such as malaria mosquitoes inaccordance with WHO recommendations andguidelines and only as long as locally safe, effectiveand affordable alternatives are not available(Annex B, Part II). There are two specificexemptions to allow the use of DDT as anintermediate in the production of the pesticidedicofol. Parties in the DDT register must report onthe quantities used, the conditions of use and therelevance to the party’s disease managementstrategy. In addition they have to develop a nationalaction plan to confine use of DDT to disease vectormanagement, explore alternatives to DDT and tostrengthen health care. All parties must promoteresearch and development for alternatives to DDT.The COP will review exemptions every three years.

49. Imports and exports of the 10 intentionallyproduced POPs are restricted and their transport ispermitted only for environmentally sound disposalor for specified uses for which the importingcountry has obtained exemption (article 3(2)).

50. Parties with regulatory and assessment schemes inplace for industrial chemicals and pesticides are toregulate new substances with the aim of preventingthe production and use of new POPs (article 3(3)).For screening such substances, the criteria set outin Annex D should be applied. These are thecriteria used for assessing the potential inclusion ofnew chemicals to the POPs list (article 8).

b) Unintentionally Produced POPs

51. Governments are further required to take steps toreduce the release of dioxins, furans,hexachlorobenzene and PCBs as by-products ofcombustion or industrial production, with the viewto continue their minimization and eventually,elimination. Within two years after the

Convention’s entry into force, parties are requiredto develop National Implementation Plans (“NIPs”)to identify, characterize and assess releases ofchemicals in Annex C. The NIPs shall include anevaluation of current and projected releases andthe efficacy of legislation and policies ofmanagement in place. Strategies for reduction ofreleases, for education and training and a schedulefor implementation of the NIP should also beincluded. Research on alternatives and BestAvailable Technologies (“BAT”) are to beemployed. COP-1 established an Expert Group onBAT and Best Environmental Practice to supportmembers in meeting their obligations under theConvention.

c) Stockpiles

52. The Stockholm Convention calls on governments todevelop and implement strategies for identifyingstockpiles of products and articles containing POPsto ensure that they are managed in anenvironmentally sound manner (article 6). Wastescontaining POPs are to be handled, collected,transported and stored in an environmentallysound manner and in line with international rules.(See Basel Convention, Chapter 11). Their toxiccontent needs to be destroyed. The Conventiondoes not allow recovery, recycling, reclamation,direct reuse or alternative uses of POPs andprohibits their improper transport across nationalboundaries. Following a decision by COP-1 theConvention Secretariat is exploring synergies andcooperation options with the Secretariat of theBasel Convention on the TransboundaryMovement of Hazardous Wastes and theirDisposal.

d) General Obligations

53. Parties must develop a National ImplementationPlan (article 7) and designate a National FocalPoint (article 9). They are to promote and facilitatea wide range of public information, awareness andeducation measures (article 10) and are required toencourage and undertake research, development,monitoring and cooperation on all aspects of POPsand their alternatives (article 11). Furthermore,parties have obligations to report on the measuresthey take to implement the Convention, on theeffectiveness of measures taken and ondata/estimates for the total quantities of POPstraded and lists of states involved (article 15).COP-1 determined that reports have to besubmitted every five years.

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e) Institutions

54. The COP reviews and evaluates implementation ofthe Convention, harmonizes policies andestablishes subsidiary bodies as it considersnecessary (article 19). Ordinary meetings of theCOP are held at regular intervals. The first COP(COP-1) was held in May 2005.

55. The Convention is serviced by a Secretariat locatedin Geneva, Switzerland. Amongst other tasks itfacilitates assistance to parties in implementing theConvention and ensures the necessarycoordination with the secretariats of other relevantinternational bodies, especially the Secretariat ofthe Basel Convention. It also performs othersecretarial functions as specified in the Conventionand determined by the COP.

56. The Persistent Organic Pollutant ReviewCommittee (“POPRC”) was established by COP-1(under article 19(6)) to review suggestions for thelisting of new POPs that may be submitted by theparties. It comprises 31 members selected on thebasis of equitable geographical distribution.

f) Addition of New POPs

57. The POPRC will regularly consider additionalcandidates for the POPS list. Any government canpropose a new listing by providing the requiredinformation and stating the reasons for its concernin accordance with Annex D (article 8). TheCommittee follows a structured evaluation processthat incorporates precaution in a number of ways(article 8(7)). It must ensure that all candidate POPsare evaluated using the best available scientificdata to determine whether their chemicalsproperties warrant their inclusion in the treaty. ThePOPRC moves through several steps of increasingcomplexity in its assessment of a proposedsubstance and finishes with an in-depthassessment, in accordance with Annex F, of controloptions for reducing or eliminating releases of thesubstance. The Committee then prepares a riskprofile for each substance, following therequirements set out in Annex E and makesrecommendations to the COP whether to thesubstance should be listed in the Convention.Then, if the COP agrees, unlike the RotterdamConvention, inclusion of a new POP requires anamendment of the Stockholm Convention, whicheach Party needs to ratify.

g) Financial and Technical Assistance

58. Transfer of environmentally sound technologiesand technical assistance in line with guidelines andcriteria for receiving such assistance are prescribed

to facilitate the implementation of the Convention(article 12). Regional and sub-regional centers arebeing established to closely cooperate withnational focal points on technical implementationissues. A financial mechanism is in place,administered by the Global Environment Facility(“GEF”) on an interim basis (article 14). It providesassistance to developing countries and countrieswith economies in transition to ensure thatincremental costs associated with fulfilling theirobligations under the Convention are covered. Thefinancial mechanism particularly supports activitiesto strengthen capacities to implement, monitor andevaluate the use of DDT and its alternatives.

h) Non-Compliance

59. Pursuant to article 17, an Open-Ended Ad HocWorking Group was established by COP-1 toconsider procedures and institutional mechanismson compliance. It will draw instruction fromcompliance mechanisms in other MEAs and onopinions from parties as compiled by theSecretariat.

3. Clustering of Related Agreements

60. Together, the Rotterdam Convention, theStockholm Convention and the Basel Conventioncover all key elements of life cycle management ofhazardous chemicals. The concept of clusteringthem into a more integrated legal programme forchemicals management has merit. The Secretariatsof the Rotterdam, Stockholm and BaselConventions prepared an issues paper in 2001outlining their current cooperation and thepotential for closer cooperation in the future,subject to endorsement by their respective parties.Potential synergies could cover areas such ascapacity building, science, technology, legal affairsand institutional matters, monitoring and reporting,and education and awareness raising. In 2002, theUNEP Governing Council endorsed suchclustering. Pilot projects are under way to facilitatean integrated life-cycle approach to managementof substances covered by the three Conventions.

61. Rotterdam and Stockholm Conventions targetstrategically important opportunities for chemicalsmanagement, namely international trade andpersistent pollutants. However, there is much moreto the picture. The two conventions form parts of amuch larger mosaic of international laws regulatingchemical impacts on human health and theenvironment. They work together with regimes forthe management of hazardous wastes, workplacesafety, radioactive substances, drugs, foods andother instruments. In particular, it is anticipated thatthey will work with the Basel Convention on

Hazardous Wastes to provide an integratedmanagement approach to listed chemicals.

62. Rotterdam Convention and Stockholm Conventionhave much in common. Each adopts a rigorousmultilateral approach to identify priority chemicalsfor international cooperative management. Eachrecognizes the greater responsibility of developedcountries in chemicals management: RotterdamConvention imposes special responsibilities onmanufacturers, mostly located in industrializedcountries, to impose controls on exporters; andStockholm Convention relies on technical andfinancial assistance to developing countries toimplement its obligations. Each Convention is in itsearly stages of development.

63. The environmentally sound management ofchemicals is a global problem that requiresinternational legal cooperation to meet itschallenge. The essential legal frameworks havebeen developed and recently come into force. Thenext critical steps for convention participants totake are implementation and consolidation.


1. The European Union – PIC Procedure

64. The European Union’s chemical industry is one ofthe world’s largest. Its products include a widerange of substances that are dangerous to humanhealth and the environment. Some of thechemicals manufactured for export and use inother countries are banned or severely restrictedwithin the European Union (“EU”) itself.

65. Regulation (EC) No. 304/2003 of the EuropeanParliament and the Council concerning the exportand import of dangerous chemicals implements theRotterdam Convention. The Regulation has directapplication in all EU member states.

66. In addition to dealing with matters relating to theimplementation of the Rotterdam Convention, theRegulation seeks to impose the same packagingand labelling requirements for export of alldangerous chemicals as apply to trade within theEU. Thus, the Regulation covers not onlychemicals subject to the PIC procedure, but alsochemicals that are banned or severely restrictedwithin the EU. In addition, chemicals for export aremade subject to EU packaging and labellingrequirements.

67. European Union member states are obliged todesignate one or more national authorities to carryout the administrative functions under theRegulation and inform the Commission thereof.

The Commission is the common designatedauthority for the participation of the EU in theConvention, working in close cooperation with theDNAs of the member states. Its functions includethe transmission of EU export notifications,submission of PIC notifications, receiving of exportnotification from third countries, submission of EUimport decisions for PIC chemicals and exchangeof information with the PIC Secretariat.

68. Under Regulation (EC) No. 304/2003, exportnotification obligations apply for export to anycountry, independent of accession to theRotterdam Convention and irrespective of theintended use of the chemical. There is also aprocedure for the import of chemical to the EUfrom other countries. When the Commissionreceives an export notification about a chemicalfrom a third country, the marketing or use of whichis banned or severely restricted in the country oforigin, it registers this in a special database calledEDEXIM. In a case where a DNA in a member statereceives a notification, it must send it forthwith tothe Commission, together with all relevantinformation.

69. The member states have to designate authoritiessuch as customs offices to control imports andexports of chemicals listed in Annex I of theRegulation. They and the Commission coordinateenforcement activities and member states have toregularly report on such activities. Member statesmust also ensure correct implementation of theRegulation and have an effective, proportional anddissuasive system of penalties in place.

2. Ghana – PIC and POPs

70. Ghana has warm humid climate most of the year.This creates favorable conditions for a largenumber of insect-pest species and diseaseorganisms to attack crops, making pest and diseaseorganisms a potential threat to food security in thecountry. Pests outbreaks are rampant. Hence, avariety of highly toxic pesticides have beenresorted to in the past.

71. In contrast to the EU, Ghana is primarily aconsumer, rather than a producer, of chemicals ininternational trade. Until the early 1980s,insecticides, mainly aldrin, dieldrin, DDT andlindane were used to control crop pests. Thesehave now been discontinued, except for lindane,which has been restricted to capsids control incocoa production.

72. Act 490 of 1994 established an EnvironmentProtection Agency. Its mandate includes thecoordination of activities of bodies engaged in

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controlling the generation, treatment, storage,transportation and disposal of industrial waste. TheAgency is also empowered to issue environmentalpermits and pollution abatement notices forcontrolling the volumes, types, constituents andeffects of emissions, deposits, waste discharges andof substances that are hazardous or potentiallydangerous to the quality of the environment or anysegment thereof.

73. Under Section 10 of the Act, a HazardousChemicals Committee is established. It is charged,inter alia, with monitoring the use of hazardouschemicals by collecting information onimportation, exportation, manufacture,distribution, sale, use and disposal of suchchemicals.

74. Under Section 28 of the Act, regulations can beadopted on substances that may be released intothe environment and on substances that may behazardous to the environment. Therefore, Act 490could be interpreted to cover all chemicals in usein Ghana. This fact notwithstanding, there are otherlaws that are specific to particular chemicals.

75. Concerning pesticides, Act 528, the PesticidesControl and Management Act 1996, as amended in1997, prescribes measures to minimize the dangersthat arise from the misuse of pesticides. It covers allclasses of pesticides and provides for registrationand additional requirements on labelling. It definespesticide approval procedures and registrationprocedures for importers and distributors.

76. The 1997 amendment deals, inter alia, withmatters relating to certification and approval. It

allows for the issuance of a 3 year temporaryimportation permit pending full certification. Theamendment outlines the procedures andconditions for obtaining approval based on thetype of the applicant’s activities (importer,formulator/producer, wholesaler/distributor,specialized haulage transporter, public sectoroperator). Approvals are valid for a year and arerenewable.

77. For certification, each applicant must provide theAgency with technical records related to theproduct (technical characteristics, test findings,dangers to the environment, target crops andparasites, etc.) and pay a fixed fee of US $500 foreach application. The certification is issued within1 to 1.5 years, and is valid for 5 years. Thecertification is issued for specific formulation of aspecific commercial product with specific intendeduses. A certification can be extended, but theprocedure will need to be repeated.

Eva Maria Duer, Associate Legal Officer, Divisionof Policy Development and Law, UNEP

Lal Kurukulasuriya, Chief of UNEP’s EnvironmentalLaw Branch until his retirement in March 2005,currently Director-General of the Centre forEnvironmental Research Training and Information,Sri Lanka

Gregory Rose, Associate Professor, Faculty of Law,University of Wollongong, Australia

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Ghana, Pesticides Control and Management Act 1996

1. No person shall import, export, manufacture, distribute, advertise, sell or use any pesticide in Ghana unless the pesticidehas been registered by the Environmental Protection Agency in accordance with this Act.

(...)3. A person seeking to register any pesticide shall submit to the Agency an application for registration which shall be in such

form and be accompanied with such fee, information, samples and such other material as the Agency may determine. (...)4(2) Pesticides classified under subsection (1) as restricted, suspended or banned shall be subject to the Prior Informed

Consent Procedure defined in section 41 of this Act. (...)41....“Prior Informed Consent Procedure” means the international operation procedure for exchanging, receiving and

handling notification information by the Agency on restricted, suspended and banned pesticides for reasons of health andthe environment”

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Resources

Internet Materials

EUROPEAN COMMISSION – ENVIRONMENT - CHEMICALS available athttp://europa.eu.int/comm/environment/chemicals/index.htm

GHANA ENVIRONMENTAL PROTECTION AGENCY available at www.epa.gov.gh/

HOMEPAGE OF CREATION OF THE INTERGOVERNMENTAL FORUM ON CHEMICAL SAFETY (“IFCS”) available at www.who.int/ifcs/

HOMEPAGE OF THE PIC CONVENTION available at http://www.pic.int

HOMEPAGE OF THE POPS CONVENTION available at http://www.pops.int

INTER-ORGANIZATION PROGRAMME ON THE SOUND MANAGEMENT OF CHEMICALS (“IOMC”) available athttp://www.who.int/iomc/

ORGANIZATION FOR ECONOMIC COOPERATION AND DEVELOPMENT available at http://www.oecd.org

UNEP HOMEPAGE ON CHEMICALS available at http://www.chem.unep.ch/

UNEP, REPORT ON THE CONFERENCE OF THE PARTIES OF THE STOCKHOLM CONVENTION ON PERSISTENT ORGANIC POLLUTANTS,(May 2005) availabe at www.pops.int

UNEP, RIDDING THE WORLD OF POPS – A BEGINNER’S GUIDE TO THE STOCKHOLM CONVENTION ON PERSISTENT ORGANIC

POLLUTANTS, (April 2005) available at www.pops.int

Text Materials

Jonathan Krueger, INFORMATION IN INTERNATIONAL ENVIRONMENTAL GOVERNANCE: THE PRIOR INFORMED CONSENT PROCEDURE

FOR TRADE IN HAZARDOUS CHEMICALS AND PESTICIDES, (Harvard University, September 2000).

UNEP, REPORT ON THE CONFERENCE OF THE PARTIES OF THE ROTTERDAM CONVENTION, (September 2004).

UNEP, THE HAZARDOUS CHEMICALS AND WASTE CONVENTIONS, (September 2003).

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13. MARINE POLLUTION

I. Introduction

1. The marine world is both majestic and fragile. Big,beautiful, powerful, life supporting, ancient andmysterious, the world’s waters are also delicate andvulnerable. The earth’s oceans and seas needprotection by and from the planet’s dominatingspecies. This chapter presents an overview ofinternational environmental law for protection ofthe marine environment from pollution.

2. The chapter begins with a description of theenvironment and of its pollution threats. Itproceeds to consider applicable international law,beginning with a brief explanation of the processthat built consensus among states to takeinternational legal action. International standardsfor control of marine pollution are surveyedaccording to pollution sources. Implementation ofinternational agreements always requires someaction at the national level and many agreementsrequire parties to create national laws as a way ofimplementing the measures required by theagreements. Therefore, this chapter examines someexamples of national laws that have been createdto implement one or more of the internationalagreements.

3. The oceans are thought to have been formed as aresult of icy comet collisions with the Earthoccurring from 4.5 to 3.9 billion years ago, formingsteam which gravity condensed and pulled intodepressions in the planet’s surface. The Earth’smajor oceanic depressions form the Pacific, Indian,Atlantic, Southern and Arctic Oceans. Theseoceans are a thin film over the Earth’s surface, onaverage, only a few kilometres deep. Oceans andseas currently cover approximately 71% of theEarth’s surface, 360 million square kilometres. Thisthin layer of oceans forms about 90% of the Earth’sbiosphere, by volume, and was the original sourceof life on Earth about four billion years ago.Oceans and seas contain the greatest amount of lifeby mass.

4. In law, the marine environment is divided intomaritime zones. These comprise areas withinnational jurisdiction, such as the territorial sea,exclusive economic zone and continental shelves,as well as areas beyond national jurisdiction, suchas the high seas and deep seabed. The sovereigntyof a state extends, beyond its land territory and itsinternal waters, to a belt of sea adjacent to its coast,described as the territorial sea. This area typically

extends 12 nautical miles from the state’s coast.The exclusive economic zone is an area beyondand adjacent to the territorial sea, typicallyextending 200 nautical miles from the state’s coast.A continental shelf of a coastal state comprises thesubmerged prolongation of the land territory of thecoastal state - the seabed and subsoil of thesubmarine areas that extend beyond its territorialsea to the outer edge of the continental margin. Astate may be able to assert jurisdiction in somematters to the edge of its continental shelf even if itextends beyond the exclusive economic zone.Areas beyond national jurisdiction must bemanaged cooperatively. Further, the flows of theocean’s currents run through national jurisdictionsbut cannot be permanently held or managed there.Accordingly, contaminants cannot be containedwithin the maritime jurisdiction of one source state.They must also be managed cooperatively.


1. The Problem

5. Why protect the marine environment frompollution? Seas and oceans perform importantecological functions and provide many benefits tohuman beings. They are home to numerousanimals, plants and other marine organisms thatform marine ecosystems and support thelivelihoods of hundreds of millions of people.Diverse marine organisms and their geneticresources could hold cures for many of theailments that we face. Marine fishing isfundamental to the economies of many countries.

6. Fish and many other marine organisms cannotsurvive in polluted waters that are toxic to them.Marine organisms that are used for food canbecome contaminated with substances such asmercury, which is harmful to human beings. Inaddition to chemical substances, items like fishinglines, metal rings, straps, glass and plastics hamperthe mobility of marine animals. Once entangled,marine mammals and other organisms havetrouble breathing, eating or swimming, all of whichcan result in their death. Items such as broken glassand chemicals can also harm swimmers and otherpeople using the marine environment.

7. The regulation of marine pollution is usuallyanalyzed according to the identified sourceproducing the marine pollution. The sources andtheir respective contribution to marine pollutionload (by mass) are: land-based (82%), vessel-based(9%), dumping of waste at sea (8%) and off-shoreactivity (1%).

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8. Land-based sources include sewage outfalls,industrial discharges, runoff from urban stormwaterand agriculture, river borne and airborne pollution,and litter. Vessel-based sources include operationaldischarges such as bilge water discharges, but notthe operation of a vessel for the purpose ofdischarging waste, as that is dumping. Pollutionfrom vessels can take the forms of oil, chemicals,lost cargo and equipment, sewage, garbage, fumesand invasive exotic species. Dumping is thedeliberate disposal of wastes at sea. Offshoreactivity generates minor pollution primarilythrough the use of oily drilling muds and byproduction blow outs.

Example: Torrey Canyon

On 19 February 1967, the “Torrey Canyon” left Kuwait.She was the first of the big supertankers, carrying a fullcargo of 120,000 tons of oil. On 18 March, she struckPollard’s Rock in the Seven Stones reef between theScilly Isles and Land’s End, England. 31 million gallons ofoil leaked from the ship and spread between Englandand France, killing marine life along the Cornish coast ofBritain and the Normandy shores of France, blighting theregion for many years. The spill left destitute manyfamilies and businesses dependent on sea resources forsustenance.

Investigations revealed that the accident resulted from acombination of factors, including: Poor ship design , poor operational scheduling, incompetence of the crew and poor navigational procedures.

The ship’s operations involved many countries. At thetime, the Torrey Canyon was owned by a subsidiary ofUnion Oil in the United States, registered in Liberia,chartered to BP Shell in the UK, and operated by Italiancrew. The vessel left Kuwait for an unknown destinationand the slick affected French and English waters. Therewere no emergency procedures and disaster responsestrategies stipulated in international law at the time. Thesituation raised numerous questions, including whichstate was responsible to check that the vessel was safe.

9. The grand scale upon which humans make use ofmarine resources is placing pressure on variousmarine ecosystems. In some cases, different usesconflict with and undermine each other. Forexample, waste disposal has undermined fishingand recreation in some areas. In some cases, overfishing has exhausted marine resources ordestabilized part of the marine ecosystem. Forexample, exotic organisms transported in shipballast water are invading new ecosystems. Aspollution has increased, the assimilative capacity ofsemi-enclosed seas, in particular, has been nearlyexhausted, resulting in negative impacts on relatedhealth, and on economic and social activities.

2. The Law of the Sea Process

10. In the mid-twentieth century, internationalcompetition over rights to harvest fisheries inoutside of territorial waters led to disputes betweenstates. Extraction of hydrocarbons and mineralsfrom the continental shelf and deep sea bed,respectively, also led to disputes among states.Increasing populations and technologicaladvancements created impetus for states to assertclaims of national jurisdiction further from thecoast, setting them on collision courses. TheUnited Nations took up the issues and, in an effortto find lasting solutions to the problems, tasked itsInternational Law Commission to codify principlescustomarily applied by states to their uses of thesea. The work of the Commission led to the gradualdevelopment of a number of conventions thataddressed, inter alia, marine pollution issues.

11. The first United Nations Conference on the Law ofthe Sea, held in 1958, adopted four separateConventions on laws of the sea. Respectively, theydealt with the high seas, the territorial sea and thecontiguous zone, the continental shelf, and fishingand conservation of the living resources of the highseas. A voluntary protocol was also adoptedrequiring the compulsory settlement of disputesthat might arise between parties as a result ofinterpretation or implementation of theconventions. However, the four Conventions didnot address the problem of marine pollution in anydetail and were overtaken by subsequentinternational agreements.

12. A second conference on the Law of the Sea in 1960was unproductive but a third was a major successin producing agreement. It was convened in 1973and met twice a year until 10 December 1982,when the omnibus United Nations Convention onthe Law of the Sea (“UNCLOS”) was adopted.UNCLOS entered into force on 16 November 1994and has 148 parties (April 2005). In the twelve-year period prior to its entry into force, some of theprovisions of UNCLOS had matured intocustomary international law and became bindingon all states.

13. UNCLOS establishes the international legal orderof the oceans. The variety of subjects dealt with iscovered in a total of 320 articles, divided intoseventeen parts, each part dealing with a broadsubject concerning the sea. In addition, UNLCOShas nineteen Annexes, each dealing with a specificmarine issue. The subject of prevention of marinepollution is covered mainly under part XII ofUNCLOS. Some relevant rules are located in otherparts, especially part II, concerning the territorialsea, and part XI, concerning the deep sea bed.

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3. The Law of the Sea and the Marine Environment

14. Part XII of UNCLOS is a ground-breakingachievement, entirely dedicated to protection ofthe marine environment. The 45 articles apply toseas and oceans forming the territories of parties,and their exclusive economic zones including thesea bed and to the high seas, ocean floor and ice-covered areas. It is set out in sections that concerngeneral provisions, global and regionalcooperation, technical assistance, monitoring andenvironmental assessment, international ruleformation, enforcement, safeguards against ineptenforcement, ice-covered areas, responsibility andliability for pollution damage and sovereignimmunity.

15. The definition of marine pollution in UNCLOS(article 1(4)) is:

“...Introduction by man, directly or indirectly, ofsubstances or energy into the marine environment,including estuaries which results or is likely to resultin such deleterious effects as harm to living resourcesand marine life hazard to human health, hindranceto marine activities, including fishing, and otherlegitimate uses of the sea, impairment of quality foruse of sea water and reduction of amenities.”

This definition raises the problem of identifyingthresholds for the various threats described in it.Implicit in that problem is identifying what theassimilative capacity of the marine environment issince the scientific understanding of the ocean’sassimilative capacity is not well advanced.

16. The key provisions of UNCLOS include:

• Article 192 which states the obligation toprotect and preserve the marine environment;

• Article 193 which preserves the sovereign rightsof states to exploit their own natural resourcesreflecting the concern of many countries,particularly developing countries, to ensure thatthey are not obstructed from following thequickest possible path to industrialdevelopment;

• Article 194 which provides that states are totake all measures necessary to prevent, reduceand control pollution of the marineenvironment using the best practicable meansat their disposal and in accordance with theircapabilities. The environment protectionobligations are heavily qualified by reference tothe limits of state capabilities and, later, byreference to their sovereign right to exploit theirnatural resources. Article 194 also sets out the

obligations for states not to cause damage bypollution to other states and their environmentor areas beyond those where states exercisesovereign rights, that is, the high seas. Article194 is based upon obligations in customaryinternational law, as articulated in the TrailSmelter and Corfu Channel cases, and Principle21 of the Stockholm Declaration; and

• Article 195 which imposes a duty not to transferpollution from one type to another, or from onearea to another. For example, sewage can be aland-based source when discharged from anocean outfall, but may be transformed into adumped source if it is partially treated and thesludge is then dumped at sea by a barge.

17. It has been almost three decades since thesegeneral principles were formulated and other,newer principles have since caught theimagination of the international environmentalcommunity. In addition to the notion of sustainabledevelopment, there are the precautionaryprinciple, integrated ecosystem management,biodiversity conservation, use of best availabletechnologies or environmental practices, and theeclipse of the notion of the right to maximize use ofthe oceans assimilative capacity. In relation tothese newer concepts, UNCLOS is largely silent,but provides a vehicle for separate new legalinitiatives. For example, article 194(3)(a) requiresthe parties to minimise release of toxic substancesto reduce the potential of their reaching the marineenvironment. This provision has relevance to theimplementation of the Stockholm Convention onPersistent Organic Pollutants of 2001.

18. Other important aspects of UNCLOS include:

• Article 198 requiring states to immediatelynotify others deemed likely to be affected byany form of threatening pollution, whether itemanates from activities or areas under thejurisdiction of the notifying state or not;

• Article 202 requiring states to cooperate inscientific research and information exchange,and to jointly conduct the research necessary toestablish appropriate scientific criteria for theformulation of rules to protect the environment;

• Article 203 obligating states to provide scientificand technical assistance to developing states toenhance their capacity to protect the marineenvironment, specifically including thepreparation of environmental assessments andassistance in minimizing the effects of majorpollution incidents;

• Article 204 mandating that states keep underparticular surveillance the effects of any

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activities that they engage in directly or permitin order to determine whether those activitiesare likely to pollute the marine environment.This is a relatively low threshold for therequirement to identify activities that are to bekept under surveillance;

• Article 205 providing that states must publishreports of the results obtained by theirmonitoring activities;

• Article 206 requiring states to assess thepotential effects of activities which they havereasonable grounds to believe may causesubstantial pollution or significant harmfulchanges to the marine environment and tocommunicate such reports to the competentinternational organizations. The latterassessment is also, in effect, an obligation toconduct Environmental Impact Assessments(“EIA”);

• Article 213-233 providing for enforcementthrough investigation of violations, criminalproceedings against offenders, imposition ofmonetary penalties against offenders andseveral other sanctions and remedies, as well aslimitations on enforcement;

• Article 235 providing that parties shall beresponsible and liable for pollution damageunder international law should they fail to carryout their duties and responsibilities; and

• Article 237 providing that UNCLOS should beimplemented without prejudice to theenvironmental obligations imposed under othertreaties relating to the marine environment.

19. In case any disputes arise as a result of theinterpretation or implementation of the provisionsof the Convention, they are to be resolved in themanner provided for by the Convention. Partieshave an obligation under part XV to settle all theirdisputes by peaceful means. Part XV sets out acompulsory procedure for binding disputeresolution that is unique among environmentprotection treaties. First, parties are obliged toconciliate. If conciliation fails, they must resolvethe dispute by means of a binding decision handeddown by their choice of either the InternationalTribunal for the Law of the Sea (“ITLOS”), theInternational Court of Justice (“ICJ”) or by anarbitral panel. Either a general panel (Annex VII) ora specialist environmental panel (Annex VIII) canarbitrate the dispute.

20. Chapter XII of UNCLOS sets out a broadframework for comprehensive measures to controlmarine pollution. Although drafted a quartercentury ago and prior to the development of thesustainable development paradigm, its provisions

still provide a solid basis for the prescription ofstandards and for their enforcement regimes. Theprovisions are supplemented by a range of treatylaws that prescribe standards in much greater detailfor more narrowly defined sources of pollution orfor particular regions.

4. Land-Based Sources of Marine Pollution

21. The vast majority of marine pollution comes fromland-based sources. These include sewage outfalls,industrial discharges, runoff from urban stormwater and agriculture, river borne and airbornepollution and litter. Land-based sources of marinepollution can also be transported through the air,such as by vehicle emissions. Enclosed or semi-enclosed seas are especially vulnerable to land-based sources.

22. Recognizing that control of land-based sources ofmarine pollution was failing, the 1992 UnitedNations Conference on Environment andDevelopment agreed to advance the subject.Agenda 21 invited the United Nations EnvironmentProgramme to convene a meeting on land-basedsources as soon as practicable and identifiedpriority actions for control of these sources,including eliminating the discharge of organhalogen compounds that threaten to accumulate todangerous levels in the marine environment,reducing of discharge of other synthetic organiccompounds and promoting controls overanthropogenic inputs of nitrogen andphosphorous, which cause eutrophication. Agenda21 also recommended updating the 1985 MontrealGuidelines for the Protection of the MarineEnvironment against Pollution from Land BasedSources, assessing the effectiveness of regionalagreements on land-based sources and theformulating of new regional agreements whereappropriate, and providing guidance onappropriate technologies and the development ofpolicy guidance for relevant global fundingmechanisms.

23. The proposed international conference on land-based sources of marine pollution was held inWashington, DC, in November 1995. It produceda Declaration and an Action Plan, for which UNEPis Secretariat. Financing for some aspects ofimplementation is available through theInternational Waters Funds of the GlobalEnvironment Facility (“GEF”).

24. International management of land-based sources ofmarine pollution lends itself more to regionalapproaches than to global ones. As the mostintense pollution from land-based sources tends to

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be local and its effects magnified in enclosed andsemi-enclosed sea areas, and as states located in acommon region tend to share a common level ofeconomic development and commonenvironmental conditions, regional arrangementsare more apt.

25. The first regional regimes for land-based source ofmarine pollution were adopted for the Baltic andNortheast Atlantic Seas. These were the 1974Convention on the Protection of the MarineEnvironment of the Baltic Sea Area (“HelsinkiConvention”) and the 1974 Convention for thePrevention of Marine Pollution from Land-BasedSources. In 1992 each was revised and updated.Respectively, they are now the 1992 Conventionon the Protection of the Marine Environment of theBaltic Sea Area and the 1992 Convention for theProtection of the Marine Environment of the North-East Atlantic. Regional protocols concerning land-based sources of marine pollution are in place forthree regions: Mediterranean Sea (“1980 AthensProtocol”), South-East Pacific (“1983 QuitoProtocol”), Arabian Gulf (“1990 Kuwait Protocol”)and Protocol concerning Pollution from Land-Based Sources and Activities on 27 October 1999.

26. The regional conventions and protocols eachadopt similar definitions of land-based sources ofmarine pollution and similar regulatoryapproaches. They cover marine pollution from thecoast, watercourses and through the atmosphere.They vary from each other in relation to coverageof offshore installations and waste disposal underthe seabed accessed by tunnel or pipeline.

27. The regional conventions also adopt similarapproaches to the regulation of land-based sourcesof marine pollution. Release into the marineenvironment of “black listed” substances set out inan annex is prohibited. Most of the conventionsblack list heavy metals such as cadmium andmercury, persistent organic compounds such asorganohalogens and organochlorines andradioactive substances. Release into the marineenvironment of “grey” list substances set out inanother annex is typically restricted and subject toauthorization by the coastal state. Authorization isconditioned on such factors as the characteristicsand composition of the substance, impacts on thereceiving environment and the availability ofalternatives such as waste production avoidanceand alternative disposal methods. Airbornepollution is addressed merely by referring to anobligation to comply with other existing andapplicable international standards, of which thereare few.

5. Vessel-Based Sources of Marine Pollution

28. Pollution from vessels can take the forms of oil,chemicals, lost cargo and equipment, sewage,garbage, fumes and invasive exotic species. Oilpollution comprises about 71% of vessel-basedmarine pollution. Discharges may be accidental(9.4%) but are mostly operational, such as throughdiesel emissions in fumes, or oil residue in bilgeand ballast water and hull washings (62%). Thetotal annual oil spillage into the oceans is estimatedat one million tonnes dumped in standardoperations and 200,000 tonnes spilled in tankeraccidents per year. In addition, 250,000 tonnes ofoil spill annually results from retirement of oilvessels from transportation activities. Chances ofvessel accidents and resultant pollution areincreased by inadequate port facilities, poor orimproper construction and maintenance of vesselsand inadequate capacity of vessel crew to safelyoperate them.

29. The International Maritime Organization (“IMO”)addressed vessel-based marine pollution prior tothe negotiation of UNCLOS. As a result, UNCLOSdid not elaborate operational controls for vessels,instead referring to standards established by the“competent international organization,” in thiscase the IMO. The IMO was established in 1948,with a mission to promote safer shipping andcleaner seas. It has the responsibility, inter alia, toestablish rules for prevention of marine pollutionfrom ships.

30. The first of IMO Conventions on marine pollutionwas the International Convention for thePrevention of Pollution of the Sea by Oil(“OILPOL”), adopted in 1954. It applied to tankersengaged in the transportation of oil. Articles I, II, II,and IV prohibited discharges of oil into the seaexcept under specified conditions. It prohibiteddischarge of persistent oil or oily mixtures of greaterthan 100 parts per million (“ppm”) within fiftynautical miles (“nm”) of land or within specialareas and regulated the rates of discharge (e.g. to arate of sixty litres/nm to a maximum of 1/15,000 ofoil cargo). However, exemptions applied if no oilreception facilities were available in the port ofdestination and the lack of available receptionfacilities at oil terminals remains a problem today,especially in developing countries.

31. Requirements introduced in 1969 mandated thatnew oil cargoes be loaded on top of old ones andthat tankers be washed out with high pressurecrude oil which is retained rather than sea waterthat is discharged, resulting in a 30% drop in

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discharges. In 1971, separate ballast tanks becamemandatory, so that oil cargo tanks did not need tobe filled with sea water as ballast. Special areaswhere no discharges were permitted weredeclared, including the Great Barrier Reef, theBlack Sea, the Baltic Sea and the North Sea.

32. However, OILPOL dealt only with oil, leaving outother contaminants that might be dischargedduring sea transportation activities. It also left outmany issues concerning marine pollution, such asmeasures to avoid tanker accidents and safety atsea. It did not address matters concerningcompensation to those who suffer financially as aresult of pollution, proper vessel design andconstruction and marine rescue systems and crewstandards, all of which have a bearing on marinepollution. In light of increased sea transportationactivities and steady increases in the sizes ofvessels, the threats of pollution loomedprominently. The problem was dramatized by the“Torrey Canyon” disaster, described earlier.

33. The IMO’s efforts to develop more comprehensivemeasures to address marine pollution beyond justoil led to MARPOL, the International Conventionfor the Prevention of Pollution from Ships. TheConvention was adopted in 1973, altered in 1978,and entered into force in 1983 supersedingOILPOL. 1973 MARPOL applies to ships flying orentitled to fly the flag of parties and ships operatingunder the authority of a party but excludeswarships, naval auxiliary and/or ships owned oroperated by a state and used only on governmentnon-commercial service (article 3). MARPOL has127 parties.

34. The core of 1973 MARPOL lies in its annexeswhich deal with all types of pollution by ships(excluding dumping), rather than oil dischargesalone. MARPOL’s six annexes deal with: (I)pollution by oil, (II) pollution by noxious liquidsubstances in bulk, (III) pollution by harmfulsubstances carried by in packaged form, (IV)sewage, (V) garbage, and (VI) air pollution. Otherthan Annexes I and II, Annexes III, IV, V and VI areoptional and can be ratified separately from themain body of MARPOL. This results in differentparties being signatories to the various Annexes.All the Annexes have entered into force, exceptAnnex VI. Annex I sets out rules for controlling oilpollution, incorporating OILPOL. Annex Vprohibits the disposal at sea of certain kinds ofgarbage, such as rope, plastic and fishing nets, butpermits disposal of food and other specified wastes.

35. Key provisions of 1973 MARPOL include:• Articles 4, 5 and 6 requiring states to create and

enforce appropriate national lawsimplementing MARPOL;

• Article 5 requiring parties to inspect ships flyingtheir flags or operating under their authority todetermine their compliance status beforeissuing them with certificates that authorizeoperation. Inspection of oil tankers is requiredbefore an International Oil Pollution PreventionCertificate is issued and a ship is authorized tooperate an oil transporter and, thereafter, atintervals of not more than five years;

• Article 6 authorizing parties to inspect foreignships entering their territorial waters todetermine whether they have discharged anyharmful substances into the territorial waters orelsewhere and, if so, to institute courtproceedings;

• Article 6 authorizing parties to carry outinspection of all ships in their ports to determinewhether they have compliance certificates and,if they do not, to deny them sailing rights.Article 7 establishes that inspections are to beconducted in an expeditious manner to avoidundue delay or detention of a ship; and

• Article 10 requiring disputes concerning theapplication or interpretation of MARPOL to beresolved through negotiation, and, if parties donot agree, be submitted upon request of any ofthem to arbitration.

36. Work by the IMO on vessel accidents andemergencies that threaten the marine environmentled to the development of the InternationalConvention on Oil Pollution Preparedness,Response and Cooperation (“OPRC”) adopted in1990, which came into force in 1995.

37. The OPRC mandates that parties establish nationalmeasures to deal with vessel accidents thatthreaten to pollute the marine environment thatinclude requirements that:

• Vessels flying their flags, installations operatingin their territorial waters and personsundertaking land-based activities within theirjurisdiction that might lead to pollution of themarine environment must prepare plans to dealwith oil pollution emergencies (article 3(1)).

• Vessel operators adopt an oil pollutionemergency plan developed by the IMO, knownas Shipboard Oil Pollution Emergency Plan andcarry it at all times to guide them on what to doin case of emergency.

38. The OPRC also requires parties to establishnational systems, including detailed plans, forresponding promptly to oil pollution accidents

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(article 3(2)) and training and equipping people tocombat oil spills and for making oil spill combatingequipment available. Parties are also required toestablish regulations and procedures for shipoperators to report any pollution incidents tocoastal authorities and other responsiblegovernmental bodies for action to be taken inaccordance with provisions of the Convention(article 4).

39. In addition to pollution emergency controlmeasures at the national level, OPRC requireparties to establish systems for cooperation to assisteach other in the event of an oil vessel accident orother emergencies threatening to cause marinepollution. Several such systems have beenestablished at sub-regional levels, such as for theMediterranean Sea.

40. The International Convention on the Control ofHarmful Anti-fouling Systems on Ships wasadopted in 2001. It is designed to protect themarine environment and human health from theharmful effects of organotin-based anti-foulingsystems on ships, such as tributyltin (“TBT”). It hasnot yet entered into force but prohibits theapplication of harmful anti-fouling systems onships from 1 January 2003. By 1 January 2008, allships will be banned from having such compoundson their hulls or external surfaces or will berequired to have a coating that forms a barrier tostop such compounds leaching from theunderlying non-compliant anti-fouling systems.

41. The most recent vessel standard developed by theIMO is the International Convention for the Controland Management of Ships Ballast Water andSediments, adopted on 13 February 2004. Itsobjective is to minimize and eliminate theinternational transfer of marine pests andpathogens contained in ships’ ballast water andsediments. Vessels must carry a Ballast WaterRecord Book and a certificate that indicates theyare properly equipped. Parties are required toensure that there are adequate reception facilitiesin ports where cleaning or repair of ballast tanksoccurs so that ballast waster and sediment can bedischarged into them.

42. Vessel-based pollution control standards havegradually moved away from discharge limits todesign and equipment standards. These are easierto enforce and more effective in preventingpollution. Vessel activities at sea are largelyunmonitored and unknowable. Surveillance,boarding, inspections and detentions are resourceintensive, cumbersome and expensive. Wisedrafting is essential to avoid reliance on

complicated and expensive enforcement actionswhile still implementing marine environmentalstandards. A useful technique to promote morecost-effective implementation is to interlinkresponsibilities and powers for enforcement acrossan international network of governments. Forexample, allocating to each flag state, coastal stateand port state a share of policing powers andresponsibilities can improve policing of vessel-based pollution. Enforcement provisions inUNCLOS seek to achieve this outcome.

43. Under UNCLOS article 217, the role of the flagstate in policing vessels remains strong but is notexclusive. Flag states are to adopt laws toeffectively enforce international norms and toprohibit vessels which are not in compliance withinternational norms from sailing. They are also toensure that their vessels carry the certificatesrequired and issued pursuant to international rulesand must immediately investigate violations whenrequested by other states, regardless of where theviolation occurred. Where a vessel is voluntarily inport, the port state may prevent a vessel fromsailing where it is in breach of internationalstandards and threatens to cause marine pollution(UNCLOS article 219). The port state is alsopermitted under article 218 to undertakeinvestigations and institute proceedings related to apolluting discharge by a foreign vessel on the highseas, which violates applicable international rules.Under the Memoranda of Understanding on PortState Control first signed by European States in1982 and by other regional states in the 1990s, portstates agreed to conduct inspections of vessels inport. These undertakings ensure that most vesselsare subject to regular examination for compliancewith applicable international pollution preventionand safety standards. Non-compliant vessels maybe detained until appropriate remedial action hasbeen taken. UNCLOS also authorizes coastalstates to physically inspect and to detain vesselswithin the territorial sea or exclusive economiczone (article 220).

44. International marine pollution liability regimes areagreements that enable persons to receivecompensation where an international shippingactivity has caused pollution. The fundamentalelements are a defined pollution incident whichhas caused damage to the covered interests ofthose persons. The ship owner is strictly liable forpaying compensation up to a defined limit set outunder the liability regime. The compensation ispaid through the courts where the injury wassuffered.

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45. Those liability regimes currently in force are the1969 International Convention on Civil Liability forOil Pollution Damage and the 1971 InternationalOil Pollution Compensation Fund Convention.(See Chapters 5 and 11 of this Training Manual).The latter applies where a ship owner is notfinancially capable of, providing compensationand provides a limited amount of additionalcompensation where the pollution damagesuffered exceeds the compensation available underthe Civil Liability Convention. Article 235 ofUNCLOS urges further development of liabilityregimes.

46. In 1997, the IMO adopted a Convention on civilliability for marine pollution caused by hazardousand noxious substances. However, neither thisConvention nor the 2001 Convention on CivilLiability for Marine Pollution caused by BunkerOils have come in to force.

6. Dumping of Wastes at Sea

47. Dumping is the deliberate disposal of wastes at sea.Typical kinds of dumped wastes include dredgedspoils, building construction debris, sewage sludgeand municipal garbage. In international law,dumping covers operations by vessels, aircraft oroffshore installations for the purpose of wastedisposal, including the disposal of the vessels,aircraft or offshore installations themselves.Dumping typically excludes disposal of wastesgenerated incidentally to the ordinary operations ofvessels, aircraft or offshore installations since theseactivities are primarily covered under regimesspecific to these types of operations (UNCLOSarticle 1(5)).

48. UNCLOS provisions on dumping require thatnational laws must be no less effective than globalrules and standards (article 210.6)). The 1972Convention on the Prevention of Marine Pollutionby Dumping of Wastes and other Matter (known asthe “London Convention”), administered throughthe IMO, establishes the global rules and standardsfor dumping. For those states not party to theLondon Convention, UNCLOS has the effect ofindirectly bringing the wider community ofUNCLOS parties into line with the LondonConvention.

49. Under UNCLOS, waste dumping is subject to apermit system (article 210(3)) which is to beenforced by coastal states which has veto powerover dumping in its territorial sea and exclusiveeconomic zone or onto its continental shelf, flagstates and waste loading states (article 216).Therefore, several permits may be needed from the

various responsible states. The London Conventionprovides the details.

50. Article 4 of the London Convention prohibitsdumping of hazardous wastes and substances intoall marine environments, including high seas andterritorial waters. Annex I sets out the “black list”of wastes for which no permits may be granted.The prohibited substances listed in Annex I includeorganochlorine compounds, mercury and mercurycompounds, persistent plastics, high-levelradioactive wastes and materials produced forchemical warfare. Article 5 allows the dumping ofAnnex II substances, for which permits may beissued subject to conditions specified in Annex III.The Annex II “grey list” substances include lowconcentrations of certain metals and incineratorash.

51. Article 7 of the London Convention requires partiesto enact national laws to provide a basis for theirpermitting system and to prevent dumping ofwastes and other substances into the marineenvironment in contravention of the Convention.They are authorized to enact more stringentregulations in their national laws and may prohibitdumping of substances that the Conventionpermits.

52. Parties to the London Convention have adopted arange of important resolutions banningincineration at sea, dumping of low-levelradioactive wastes at sea and establishing a processof phasing out dumping of all industrial wastes atsea, among other changes.

53. In 1996 a new Protocol to the London Conventionwas adopted designed to reduce the practice ofwaste dumping by introducing waste managementand avoidance practices. This Protocol included anew reverse listing that, instead of listing wastesprohibited for dumping, prohibited dumping of allwastes except those specifically listed. The oldAnnex I “black list” is accordingly replaced by anew Annex 1 “reverse list” of wastes which can bedumped subject to permit. However, the 1996Protocol has not yet come into force.

54. Regional conventions concerning the dumping ofwaste have been adopted for the North EastAtlantic Ocean (1992) and Baltic Sea (1992), andprotocols have been adopted for theMediterranean (1995), South Pacific (1986), andSouth East Pacific seas (1989). The North EastAtlantic, Baltic and Mediterranean agreementshave been revised since 1990 to incorporate thewaste management and avoidance approaches ofthe London Convention’s Protocol.

7. Offshore Hydrocarbon and Mineral Recovery

55. UNCLOS article 208(3) expresses a generalobligation to prevent marine pollution fromoffshore activities and to ensure that nationalmeasures are no less effective than internationalmeasures. In 1979, the IMO adopted a Code forConstruction and Equipment of Mobile OffshoreDrilling Units. A convention on Civil Liability forOil Pollution Damage resulting from Oil and GasExploration and Exploitation of Seabed MineralResources was adopted in 1977 but has not comeinto force. Regional standards have been adoptedin North West Atlantic, where various bilateralagreements have been adopted, especially fordealing with emergencies (e.g., Norway-UK,Canada-Denmark). The various UNEP regionalconventions create a general obligation to preventpollution from offshore activities (e.g., BarcelonaConvention article 7) but these are without anydetailed content.

56. Currently, deep seabed mining is not a source ofmarine pollution. Pollution controls concerningactivities in the deep seabed area are to beformulated by the International Seabed Authorityestablished in accordance with part XI of the Lawof the Sea Convention (UNCLOS article 209). TheInternational Seabed Authority established underthe Convention has formulated a Mining Code fordeep seabed operations and is developingguidelines for assessment of possibleenvironmental impacts arising from seabedexploration.

8. Regional Seas Agreements

57. UNCLOS requires parties to enter into regionalagreements to formulate and establish rules,standards, practices and procedures for theprotection of the marine environment, tosupplement rules established at the internationallevel (article 197). Framework agreements forprotection of the environment have been created inalmost every marine region of the world. Tenregional framework agreements have beendeveloped under the UNEP Regional SeasProgramme. A legal regime for the North EastAtlantic Ocean was developed by regional statesprior to the Regional Seas Programme beingadopted.

58. The UNEP Regional Seas Programme was initiatedin 1974 covering thirteen regions of world’s seasinvolving more than 140 coastal states andterritories. They are the Mediterranean Sea, BalticSea, Black Sea, Red Sea and Gulf of Aden, Westand Central African seas, East African seas,

Caribbean region, South Asian seas, East Asianseas, South Pacific, South East Pacific and NorthWest Pacific Oceans. The Regional SeasProgramme involves development of an ActionPlan for the protection of the marine environmentin each region. These facilitate target setting,regional cooperation and capacity building inpollution control. Plans are regularly reviewed andhave evolved to address broader sustainabledevelopment concerns for coastal zones. (See alsounder chapter 11, Hazardous Wastes).

59. The eleven regional conventions currently in forceare:

• Convention for the Protection of the MarineEnvironment and the Coastal Region of theMediterranean (“1976 Barcelona Convention”),adopted on 16 February 1976 and entered intoforce in 1978;

• Convention on the Protection of the Black Seaagainst Pollution (“1992 BucharestConvention”) adopted in April 1992 andentered into force in 1994;

• Convention for the Protection andDevelopment of the Marine Environment of theWider Caribbean Region (“1983 CartagenaConvention”) adopted in 1983 and enteredinto force in 1986;

• Convention on the Protection of the MarineEnvironment of the Baltic Sea Area (“1974Helsinki Convention”) adopted in 1974 andentered into force in 1980;

• Regional Convention for the Conservation ofthe Red Sea and Gulf of Aden Environment(“1982 Jeddah Convention”) adopted on 14February 1982 and entered into force on 20August 1985;

• Kuwait Regional Convention for Cooperationon the Protection of the Marine Environmentfrom Pollution (“1978 Kuwait Convention”)adopted in 1978 and entered into force in1979;

• Convention for the Protection of the MarineEnvironment and Coastal Area of the South-EastPacific (“1981 Lima Convention”) adopted in1981 and entered into force in 1986;

• Convention for the Protection, Managementand Development of the Marine and CoastalEnvironment of the Eastern African Region(“1985 Nairobi Convention”) adopted in 1985and entered into force in 1986;

• Convention for the Protection of NaturalResources and Environment of the South PacificRegion (“1986 Noumea Convention”) adoptedin 1986 and entered into force in 1990;

• Convention for the Protection of the MarineEnvironment of the North-East Atlantic (“1992

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OSPAR Convention”) adopted on 22 September1992 and entered into force on 25 March 1998;and,

• Convention for Cooperation in the Protectionand Development of the Marine and CoastalEnvironment of the West and Central AfricanRegion (“1981 Abidjan Convention”) adoptedin 1981 and entered into force in 1984.

60. Legal agreements adopted under the Regional SeasProgramme tend to reflect the structure andprinciples of part XII of the Law of the SeaConvention and provide a framework for morespecific standards to be adopted, usually in theform of protocols. The range and kinds of protocolsis continually expanding.

a. Convention for the Protection of the MarineEnvironment and the Coastal Region of the

Mediterranean

61. The Mediterranean Region provides the leadingmodel of regional seas agreements, with the oldestand most frequently revised convention, and anextensive range of protocols. The MediterraneanSea is a virtually closed ocean that is highlyvulnerable to pollution. Rapid expansion of largecities around the Mediterranean Sea contributes tothe overwhelming pressure on the region’s marine,terrestrial and water resources. To address thesechallenges, states in the region adopted the 1976Barcelona Convention. So far, the Convention hasas 21 country-parties bordering the MediterraneanSea.

62. The most important features of the 1976 BarcelonaConvention include:

• Article 1 which describes the Conventionscoverage as the Mediterranean Sea itself and itsgulfs and seas but not the internal waters ofparties;

• Articles 4 to 8 which declare that the objectiveof the Convention is to protect the marineenvironment of the region from pollution fromsources including ships, aircrafts, dumping ofwastes and from exploitation and exploration ofthe continental shelf and seabed; and

• Article 8 which requires parties to ensure thatactivities carried out within their territories donot discharge pollutants into rivers that end upemptying them into the waters in the region.Article 9 which requires parties to cooperate, inthe case of an emergency, by taking joint actionto mitigate the impacts of pollution from land-based activities or from other sources.

63. As with most of the regional seas conventions, theBarcelona Convention is a framework formed ofarticles of a general nature which, though adoptedof UNCLOS, are consistent with its chapter XII.Protocols and annexes specifying concretemeasures must supplement the frameworkagreement for the Convention to effectively addressproblems in the region. The Barcelona Conventionis complemented by six protocols, more than anyother region. These are:

• The Protocol for the Prevention of Pollution byDumping from Ships and Aircraft was adopted16 February 1976 and entered into force on 12February 1978. In 1995, it was amended andrenamed Protocol for the Prevention andElimination of Pollution of the MediterraneanSea by Dumping from Ships and Aircraft orincineration at Sea. The amendment has notyet come into force.

• The Protocol concerning Cooperation inCombating Pollution of the Mediterranean Seaby Oil and other Harmful Substances in Casesof Emergency was also adopted on 16 February1976 and entered into force on 12 February1978. Nearly 30% by volume of allinternational sea-borne trade originates or isdirected to the Mediterranean ports, or passesthrough the sea, while some 28% of the world’ssea-borne oil traffic transits the Mediterranean.To address prevention of pollution fromshipping, the Protocol was amended on 25January 2002, and renamed the ProtocolConcerning Cooperation in PreventingPollution from Ships and in Cases ofEmergency, Combating Pollution in theMediterranean Sea. The amendment has yet tocome into force.

• The Protocol for the Protection of theMediterranean Sea against Pollution from Land-Based Sources was adopted on 17 May 1980and entered into force on 17 July 1983. Land-based pollution presents 80% of harm done tothe Mediterranean Sea. To complementpollution discharge limits operative at the endof the pipe, the Protocol was amended on 7March 1996. The renamed Protocol for theProtection of the Mediterranean Sea againstPollution from Land-Based Sources andActivities set in place systemic pollutionprevention standards that address controls topollution generating processes. Theamendment has not yet come into force.

• The Protocol concerning MediterraneanSpecially Protected Areas was adopted on 2April 1982 and entered into force on 23 March1986. In June 1995, it was amended and

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renamed the Protocol concerning SpeciallyProtected Areas and Biological Diversity in theMediterranean. The amendment came intoforce on 12 December 1999.

• The Protocol for the Protection of theMediterranean Sea against Pollution resultingfrom Exploration and Exploitation of theContinental Shelf and the Seabed and itsSubsoil was adopted on 14 October 1994. Ithas yet to come into force.

• The Protocol on the Prevention of Pollution ofthe Mediterranean Sea by TransboundaryMovements of Hazardous Wastes and theirDisposal was adopted on 1 October 1996. Alsothis Protocol has not come into force yet.

b. Convention for the Protection andDevelopment of the Marine Environment of the

Wider Caribbean Region

64. The Wider Caribbean region, comprising 28 islandstates and 18 continental countries, is a complexregion of natural beauty encompassing bothtropical and sub-tropical ecosystems. Ranging fromcoral reefs to mangrove forests to sea grass beds,each with unique wildlife, it is considered by manyscientists to be one of the world’s most biodiverseregions. For example, Colombia and Mexico areamong the ten richest countries in the world interms of terrestrial and plant species. Despite widedisparities in the densities of population, levels ofeconomic development and access to resources,all the states in the Caribbean region share similarenvironmental problems. Nearly 100% of thepopulation of its islands are coastal and the regionexperiences hurricanes and other devastatingclimatic and oceanographic conditions. Tourism isa fast-growing industry in many regional states andthey are undertaking development activities alongthe coastline, such as ports and harbours, withnegative consequences on their environments.

65. The 1983 Cartagena Convention is of acomprehensive framework type, makingrequirements on parties, for example, to conductEnvironmental Impact Assessments (“EIA”) of theirplanned and on-going projects to determine theirpotential to cause marine pollution (article 12).Article 15 of the Convention designates UNEP as itsSecretariat, responsible for functions includingcoordination of implementation activities.Disputes arising under the Convention are to beresolved through negotiation and other peacefulmeans. In the absence of a negotiated resolution,matters are to be referred to arbitration.

66. The 1983 Cartagena Convention has beensupplemented by some unique and unusualprotocols specifying detailed pollution controlmeasures, namely:

• The Protocol concerning Cooperation inCombating Oil Spills in the Wider CaribbeanRegion. It requires parties to act individually, aswell as to cooperate by providing assistance toeach other, to establish and maintain means ofresponding to oil spill accidents which result inor pose a significant threat of, pollution to themarine and coastal environment.

• The Protocol concerning Specially ProtectedAreas and Wildlife (“SPAW”) was specificallyintended to implement article 10 of theCartagena Convention, which requires theestablishment of specially protected areas. Itsobjective is to protect rare and fragileecosystems and habitats, including endangeredand threatened species.

• The Protocol concerning Pollution from Land-Based Sources and Activities requires parties totake appropriate measures to prevent, controland reduce pollution from transboundarymovement of wastes. This Protocol has yet tocome into force.

c. Convention for the Protection of the MarineEnvironment of the North-East Atlantic

67. The 1992 OSPAR Convention was adopted on 22September 1992 and entered into force on 25March 1998. It has sixteen parties: Belgium,Denmark, Finland, France, Germany, Iceland,Ireland, Luxembourg, the Netherlands, Norway,Portugal, Spain, Sweden, Switzerland, the UnitedKingdom, and the European Union. TheConvention replaced two earlier conventions: theConvention for the Prevention of Marine Pollutionby Dumping From Ships and Aircraft (“OsloConvention”), which came into force in 1974, andthe Convention for the Prevention of MarinePollution from Land-Based Sources (“ParisConvention”), which came into force in 1978.

68. The objectives of the 1992 OSPAR Convention, asstated in its Preamble, are threefold:

• To safeguard human health from marinepollution in the area;

• To conserve marine ecosystems, particularly bypreventing and controlling pollution;

• To restore waters that have been adverselyaffected by pollution. OSPAR regulations coverall the oil-producing coastal states of WesternEurope.

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Unlike many of the regional seas agreements, itapplies to the internal waters of parties, that is, notonly to the territorial sea, high seas, seabeds andsubsoil adjacent to parties in the North-EastAtlantic and North Sea region.

69. To meet its objectives, article 2(2)(a) of the 1992OSPAR Convention obligates parties to apply theprecautionary principle. This means that partiesare to take measures to prevent marine pollutionwhen there is reason to believe that proposedactivities in or near the marine environment maycreate hazards to human health, interfere withlegitimate uses of the waters, or harm the livingorganisms in the waters, even if there is noconclusive evidence that these adverse impactswill definitely occur. Another unique feature ofarticle 2 is that it requires parties to apply thepolluter pays principle. Parties are to ensure thatthe cost of measures taken to prevent, control andreduce pollution as well as the cost of any damageresulting from pollution is borne by the person whopollutes the waters. (See also chapter 3 onPrinciples and Concepts of this Training Manual).

70. In addition, article 2 of the Convention introducesunusually sophisticated controls on land-basedpollution using best available technologystandards. Parties are required to ensure that theirpollution control programmes make full use of bestavailable techniques and best environmentalpractices to prevent, reduce and control pollutionto the fullest extent.

71. Articles 10, 11 and 12 establish an OSPARCommission made up of representatives of eachparty. The Commission has decided to allow Non-Governmental Organizations to participate in thedevelopment of its Plan and Programme tofacilitate pollution control and other measures. Inaddition, the Convention provides for theestablishment of technical and scientific bodies toimplement recommended strategies and toconduct monitoring and assessments.


72. International legal obligations are implementednationally through a range of measures, includinglegislation, policy and administrative measures.Examples of national legislation drawn fromdifferent regions are set out below to illustrate theways that some countries have implemented thevarious marine pollution principles andconventions.

1. Romania

73. Romania’s Act Number 6 of 1993 authorized theimplementation of MARPOL at the national level.Romania’s Marine Research Institute, whichoperates under the Ministry of Waters, Forests andEnvironment Protection, was designated to act asthe focal point for matters concerning theConvention. The Ministry of Water, Forests andEnvironmental Protection is responsible forenforcement of the law. It drafted a Black SeaEnvironmental Programme for the Romanianshoreline to facilitate prevention of marinepollution and sustainable development of coastalareas. In addition, Law Number 17 of 1990governs territorial waters, as required underUNCLOS, and Government Order Number 1907of 1994 deals with discharge of sewage and wastesat harbour facilities and at sea, and Water LawNumber 107 of 1996 deals with accidental oilspills. A National Contingency Plan in case ofMarine Pollution by Oil was adopted under thatlaw.

2. South Africa

74. To implement the London Convention, SouthAfrica enacted the “Dumping at Sea Control Act”No. 73 in 1980. In 1985, the Act was amended bythe “Prevention and Combating of Pollution of theSea by Oil Amendment Act” No. 59 of 1985. Theamended Act contains detailed provisionsprohibiting discharge of oil from ships and othervessels into the sea and imposing penalties forviolations and requiring vessel operators andowners to report any accidents leading to oilpollution to the responsible authorities so thatappropriate remedial action can be taken. The Actalso imposes liability for any damage resulting fromoil pollution on the person causing pollution.South Africa has actively participated in theactivities of the Scientific Group established by theConvention that are aimed at facilitating technicalcooperation and building capacity to combatpollution.

3. Australia

75. Australian marine water quality is administeredunder complex arrangements that shareresponsibilities between the national and federatedstate governments. Under the OffshoreConstitutional Settlement, the state governmentsadminister marine waters within 3 nautical miles ofthe coastline and the national governmentadministers waters from 3 nautical miles to 200

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nautical miles of the coastline. The nationalgovernment requires that activities that mightsignificantly impact on national waters be subjectto an environmental impact assessment andapproval process, under the EnvironmentProtection and Biodiversity Conservation Act 1999.That legislation goes one step further, to alsorequire long term strategic environmentalassessments for cumulative impacts. Within statecontrolled waters, assessments and approvals forproposed projects that might have significantimpacts are required under state legislation.

76. The 1973 MARPOL Convention, however, appliesto all Australian waters and is administered by thenational government through its AustralianMaritime Safety Authority under the EnvironmentProtection (Pollution from Ships) Act 1983 (asamended). The London Convention is alsoadministered by the national government, throughits Department of Environment, under theEnvironment Protection (Sea Dumping) Act 1981(as amended). Pipelines and other marinestructures are also regulated nationally under theSea Installations Act 1987. In contrast, land-basedsources of marine pollution are locally regulated byfederated state governments and by municipalgovernments, which can provide more effectivecontrols over local sources of pollution, albeit thereis as yet no national approach to controls.

77. Under the National Oceans Policy 1998, efforts arebeing made to integrate management of variousmarine activities in an environmentally soundmanner, using large-scale regional marine plansdeveloped through consultation with stakeholders.The national Environment Protection andBiodiversity Conservation Act 1999 applies tomarine habitats (as well as terrestrial) and enablesthe creation of five categories of marine protectedareas and provides a range of protections forconservation of threatened or endangered species.Most states have adopted marine park legislationand parks are managed by state authorities incoastal waters, and in those beyond by nationalauthorities. Since 1998, new marine parks arebeing proclaimed with the objective of creating aNational Representative System of MarineProtected Areas for all Australian marine andcoastal regions.

Gregory Rose, Associate Professor, Faculty of Law,University of Wollongong, Australia


Barbara Ruis, Legal Officer, Division of Policy Development and Law, UNEP

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Resources

Internet Materials

INFORMATION ON REGIONAL SEAS AGREEMENTS available at http://www.unep.org/water/regseas/regseas.htm and athttp://www.greenyearbook.org/agree/mar-env/regseas.htm

INFORMATION ON THE BARCELONA CONVENTION available at http://www.greenyearbook.org/agree/mar-env/barcelona.htm

INFORMATION ON THE BUCHAREST CONVENTION available at http://www.greenyearbook.org/agree/mar-env/bucharest.htm

INFORMATION ON THE CARTAGENA CONVENTION available at http://www.greenyearbook.org/agree/mar-env/cartagena.htm

INFORMATION ON THE HELSINKI CONVENTION available at http://www.greenyearbook.org/agree/mar-env/helsinki.htm

INFORMATION ON THE JEDDAH CONVENTION available at http://www.greenyearbook.org/agree/mar-env/jeddah.htm

INFORMATION ON THE KUWAIT CONVENTION available at http://www.greenyearbook.org/agree/mar-env/kuwait.htm

INFORMATION ON THE LAW OF THE SEA CONVENTION available at http://www.un.org/depts/los/index.htm

INFORMATION ON THE LIMA CONVENTION available at http://www.greenyearbook.org/agree/mar-env/lima.htm

INFORMATION ON THE NAIROBI CONVENTION available at http://www.greenyearbook.org/agree/mar-env/nairobi.htm

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INFORMATION ON THE NOUMEA CONVENTION available at http://www.greenyearbook.org/agree/mar-env/noumea.htm

INFORMATION ON THE OSPAR CONVENTION available at http://www.greenyearbook.org/agree/mar-env/ospar.htm and athttp://www.ospar.org

GENERAL INFORMATION ON MARINE POLLUTION available at http://www.admiraltylawguide.org

REPORTS OF THE UNITED NATIONS SECRETARY-GENERAL ON OCEANS AND LAW OF THE SEA TO THE GENERAL ASSEMBLY availableat http://www.un.org/Depts/los/general_assembly/general_assembly_reports.htm

THE INTERNATIONAL MARITIME ORGANIZATION available at http://www.imo.org

THE INTERNATIONAL SEABED AUTHORITY available at http://www.isa.org.jm

THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA available at http://www.itlos.org

THE LAW OF THE SEA CONVENTION available at http://www.unclos.com

THE LONDON CONVENTION available at http://www.londonconvention.org

Text Materials

Douglas D. Ofiara, Joseph J. Seneca, ECONOMIC LOSSES FROM MARINE POLLUTION: A HANDBOOK FOR ASSESSMENT, (IslandPress 2001).

Edgar Gold, LIABILITY AND COMPENSATION FOR SHIP-SOURCE MARINE POLLUTION: THE INTERNATIONAL SYSTEM, (Yearbook ofInternational Co-operation on Environment and Development 31-7, 1999/2000).

ENVIRONMENT CANADA, FEDERAL/PROVINCIAL/TERRITORIAL ADVISORY COMMITTEE ON CANADA’S NATIONAL PROGRAMME OF

ACTION FOR THE PROTECTION OF THE MARITIME ENVIRONMENT FROM LAND-BASED ACTIVITIES, IMPLEMENTING CANADA’SNATIONAL PROGRAMME OF ACTION FOR THE PROTECTION OF THE MARINE ENVIRONMENT FROM LAND-BASED ACTIVITIES:NATIONAL REPORT TO THE 2001 INTERGOVERNMENTAL REVIEW MEETING ON IMPLEMENTATION OF THE GLOBAL PROGRAMME OF

ACTION, (January 2001).

Michael A. Becker, THE SHIFTING PUBLIC ORDER OF THE OCEANS: FREEDOM OF NAVIGATION AND THE INTERDICTION OF SHIPS

AT SEA,. (Harvard International Law Journal, Volume 46, Number 1, Winter 2005).

Nobuyuiki Miyazaki, Zafar Adeel, Kouichi Ohwada, MANKIND AND THE OCEANS, (United Nations University Press2004).

P.L. Bishop, MARINE POLLUTION AND ITS CONTROL, (McGraw-Hill Book Co. 1983).

Robert Bernard Clark, Chris Frid, Martin Attrell, MARINE POLLUTION, (Fifth Edition, Oxford University Press 2001).

Ronald B. Mitchell, REGIME DESIGN MATTERS: INTENTIONAL OIL POLLUTION AND TREATY COMPLIANCE, (JSTOR 2001).

UNITED NATIONS, THE LAW OF THE SEA BULLETIN.

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14. CONSERVATION OF SPECIES AND HABITATS, INCLUDING TRADE IN AND SUSTAINABLE USE OF ENDANGERED SPECIES

I. Introduction

1. This chapter discusses the following instruments:

• The Convention on the Conservation ofMigratory Species of Wild Animals, 1979(“CMS”);

• The Convention on Wetlands of InternationalImportance especially as Waterfowl Habitat,1971 (“Ramsar Convention”);

• The Convention on International Trade inEndangered Species of Wild Fauna and Flora,1973 (“CITES”);

• The Lusaka Agreement on CooperativeEnforcement Operations Directed at IllegalTrade in Wild Fauna and Flora, 1994 (“LusakaAgreement”) and

• The World Heritage Convention, 1972(“WHC”).

2. Each of these Conventions or Agreementsaddresses aspects of the conservation of biologicaldiversity and they have many goals in common.Their respective objectives and scope are generallyconsistent with the text and spirit of the Conventionon Biological Diversity (“CBD”) (See Chapter 15),which is why these Conventions are often referredto as biodiversity-related MultilateralEnvironmental Agreements (“MEAs”). However,each MEA has a special mission and a somewhatdifferent concept of conservation. CITES and CMS,for instance, focus on the protection of specieswhile the Ramsar Convention and the WHC focuson sites and, therefore, in situ conservation. CITESstresses conservation as a goal similar to the CBD,but focuses on the specific threat of illegal tradeand its implications for the conservation ofbiodiversity. On the other hand, the CBD and theRamsar Convention focus on sustainable use,taking into account socio-economic concerns suchas land use planning and demography. Whilethese conventions, along with the CBD, are themain instruments for achieving biodiversityconservation, there are also regional agreementsand treaties that are very important. One suchinstrument, the Lusaka Agreement is discussed

below. Section II underlines the internationalframework governing the different legal regimesmentioned which have developed over time toregulate the conservation of species and habitatsand their relationships, given the differentsecretariats involved as well as parties.

3. For these agreements to be more effective, it ishighly desirable that they be mutually supportive.Thus, coordination between the respectivesecretariats of the agreements has become veryimportant. The CBD Secretariat, together with theSecretariats of the Ramsar Convention, CITES, CMSand the WHC regularly explore options for aharmonized information managementinfrastructure for biodiversity related treaties. TheSecretariats will continue to cooperate oninformation management and access, a jointwebsite and a biodiversity-related search enginehosted by the CBD Secretariat. These agreementsdo not necessarily cover all aspects of biodiversityconservation. For example, the biodiversity of themarine environment is addressed in Chapter 17below.

4. Section III will briefly examine selectedimplementing legislation in three countries,namely Uganda on the Ramsar Convention,Singapore on CITES and South Africa on the WorldHeritage Convention.


1. The 1979 Convention on the Conservation of

Migratory Species of Wild Animals

Introduction

5. Animal migration is a global phenomenon.Migration refers to the periodic movements ofanimals from one area to another, in a cyclical,generally annual and predictable manner. A widevariety of animals inhabiting the land, sea and airmigrate, including antelopes, dolphins, marineturtles, bats and a large number of birds. Manyanimals migrate due to biological and seasonalrequirements, such as the need to find a suitablelocation for breeding and for raising young and tofind favourable areas in which to feed at othertimes of the year. In extreme cases, animals migrateto locations thousands of kilometres away.

6. Migration allows species to periodically exploitresources in areas that would not be suitable forcontinuous use. However, animals are biologicallydependent on the specific sites they find on theirmigratory routes and at the end of their journey. As

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such, migratory species are particularly vulnerableto a wide range of threats, including habitatshrinkage in breeding areas caused by land andwater degradation, residential and industrialexpansion, and excessive hunting along migrationroutes. Because of the wide range of habitats thatmigrating species require, they tend to be more atrisk and in danger than non-migratory species.

7. Migratory species can be considered asrepresenting a common natural heritage. Countriesen route thus share a common responsibility toundertake cooperative action for migratory species’conservation throughout their life cycle. Thenecessity for countries to cooperate in theirconservation was recognized in Recommendation32 of the Action Plan under the 1972 StockholmUnited Nations Conference on the HumanEnvironment. This paved the way for theelaboration of the CMS.

Major Components

8. CMS is a global treaty directed at specific listedspecies. It was adopted in Bonn, in 1979, andentered into force in 1983. 91 countries haveratified the Convention as of July 2005. Itrecognizes that efficient management of migratoryspecies needs concerted action by all range statesand provides a framework within which rangestates take individual and cooperative action toconserve terrestrial, marine and avian migratoryspecies and their habitats.

9. Article I(1) of the Convention offers key definitions,such as:

• “Endangered” signifies “...that the migratoryspecies is in danger of extinction throughout allor a significant portion of its range.”

• “Conservation status” is “...the sum of theinfluences acting on the migratory species thatmay affect its long-term distribution andabundance.” The conservation status isconsidered “favourable” when a migratoryspecies is maintaining itself on a long-term basisand its range is neither currently being reduced,nor is likely to be reduced in a long-term basiswhen there is, and will be in the foreseeablefuture nor when there is sufficient habitat tomaintain the population consistent with wisewildlife management. The conservation statusis taken to be "unfavourable" if any of theconditions set out above is not met.

• “Migratory species” is defined as the entirepopulation or any geographically separate partof the population of any species of wild animals,that habitually and predictably cross one ormore national jurisdictional boundaries.

• “Range” means all the areas of land or waterthat a migratory species inhabits, stays intemporarily, crosses or overlies at any time in itsnormal migration route.

a. Obligations and Instruments

10. CMS requires countries to adopt strict protectionmeasures for endangered migratory species.Article III indicates that migratory species may belisted in Appendix I of the Convention, “...providedthat reliable evidence, including the best scientificevidence available, indicates that the species isendangered...”.

11. Countries are encouraged to conclude agreementsfor the conservation and management of migratoryspecies listed in Appendix II to the CMS. These arespecies which, under article IV, “...have anunfavourable conservation status and whichrequire international agreements for theirconservation and management, as well as thosewhich have a conservation status which wouldsignificantly benefit from the internationalcooperation.” Parties also have to undertake jointresearch and monitoring activities. Species may belisted in both Appendix I and Appendix II.

12. The object of such agreements is to restore ormaintain the migratory species concerned to afavourable conservation status or to maintain thespecies in such a status. The agreements areintended to address all aspects of the conservationand management of the migratory species toachieve restoration or maintenance of the species.

13. The Convention further requires implementation atnational and international levels throughprogrammes and direct action, such as research,monitoring and the removal of obstacles thatimpede the migration of species. Article V refers tothe establishment, “if necessary,” of appropriatemachinery to assist in carrying out the aims of theagreement. This would include the institutional,administrative and legislative mechanisms thatserve to achieve the aims of the agreement.

14. Upon becoming a party to the Convention, a partymust nominate a focal point and communicate it tothe Secretariat of the Convention. The focal pointso named would be responsible forcommunicating all information to the country’sinstitutions. The party must also participate in theMeetings of the Parties (“MOP”) or as also calledthe Conference of the Parties (“COP”). anddesignate a Scientific Councillor to attend themeetings of the Scientific Council. An annualcontribution must be paid to the CMS Trust Fund,which is administered by UNEP.

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b. Appendix I Species

15. Appendix I currently lists more than 80 endangeredspecies, including the Siberian crane, the White-tailed eagle and the Dama gazelle. Additionalmigratory species can be listed on Appendix I if aparty considers the species to be endangered andsubmits a proposal. The statement of reasons forthe proposal must include specific informationsuch as biological data, threat data, protectionstatus and needs, range states, comments fromrange states and references. A migratory speciescan be removed from Appendix I if reliableevidence indicates that it is no longer endangeredand that the species in question is not likely tobecome endangered again due to its removal fromAppendix I.

16. Range states are obliged to prohibit the taking(hunting, fishing, capturing or deliberately killing)of Appendix I species. The states are to conserveand restore important habitats of such species, tocounteract factors impeding their migration and areobliged to keep other potentially endangeringfactors under control. Range states must alsoreport to the COP on measures to implement theConvention’s provisions in relation to the speciesfor which they are responsible under Appendices Iand II.

c. Appendix II Species and other Species

17. In relation to the species listed at Appendix II, theConvention provides for the development ofspecific regional agreements. Parties to such aregional agreement need not be parties to theConvention provides for two different kinds ofagreements, out of which the more formalagreements are distinguished in the Guide to theCMS (hereinafter, the Guide) as AGREEMENTS,and the less formal ones as Agreements.

18. AGREEMENTS, as provided for in articles IV(3) andV, should deal preferably with more than onespecies and cover its or their whole range. Theyshould include all necessary instruments to makethe AGREEMENT effective and operational. Insubstance, the AGREEMENTS should coordinatespecies conservation and management plans,restore and conserve habitats, control factorsimpeding migration, cooperate in research,monitoring, exchange of information and promotepublic education.

19. In contrast, Agreements, as defined in article IV (4),provide for the conservation of any population ofany species of wild animals that periodically cross

jurisdictional boundaries. The geographicalcoverage does not have to extend to the whole ofthe migratory range and the species does not haveto be listed in any of the Appendices.

20. Less formal legal instruments can also benegotiated under the Convention to achieve similarobjectives. A typical example is a Memorandum ofUnderstanding (“MOU”) whose aim is tocoordinate short-term measures to be taken by therange states at the administrative and scientificlevel. MOUs allow for the conclusion of legalinstruments between Ministries of the range statesavoiding lengthy ratification periods. They areaimed at immediate concerted protection measurefor seriously endangered species until a moreelaborate conservation scheme can be adopted.MOUs may subsequently be converted into moreformal Agreements if the members agree, orincorporated as an action plan for conservation.

d. National Implementation

21. The Guide indicates that a new party to theConvention “requires careful examination by theresponsible authorities of the respective partieswhether their national legislation already includescommitments for the strict protection ofendangered migratory species,” which are subjectto listing under Appendix I, and to which they area range state, as well as commitments toconservation and restoration of habitat. Anyamendments to the Convention’s text, or moreparticularly, the Appendices, may also call foramendment to domestic legislation. The Guidealso indicates that beyond domestic legalmeasures, programmes and direct action are alsorequired.

22. The Convention provides for an institutionalstructure, consisting of the COP, the StandingCommittee, a Scientific Council and a Secretariat.The COP, which is the decision-making organ ofthe Convention, meets at least once every threeyears. It monitors the conservation status ofmigratory species, reviews the progress being madeunder the agreements and makesrecommendations to the parties for improving theconservation status. At the 2002 COP, severalspecies, including the Great White Shark, wereadded to Appendix I of the Convention. Countriesalso agreed to adopt bird-friendly techniques whenconstructing medium-voltage power lines to avoidelectrocution of migratory birds.

23. The Standing Committee provides policy andadministrative guidance between the regular

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meetings of the COP. It consists of onerepresentative from every global region, of theDepositary and of the country that plans to host thenext meeting. The Scientific Council gives adviceon scientific matters to the institutions of the CMS.The Secretariat provides administrative supportunder the auspices of UNEP. It develops andpromotes Agreements, liaises with governmentsand organizations and services meetings.

e. Relationship and Cooperation with otherBiodiversity related MEAs

24. CMS is the only global convention dealingexclusively with the conservation of migratoryspecies. Even though migratory species in generalare included in the Convention on BiologicalDiversity and migratory fish species are covered bythe United Nations Convention on the Law of theSea (“UNCLOS”), these Conventions do notprovide for the special instruments through whichconservation work can be done. As seen in otherChapters of this Manual (15 and 17), article 5 of theCBD and articles 65 and 120 of UNCLOS requiretheir parties to implement coordinatedinternational conservation measures for migratoryspecies through existing international legalinstruments. In order to promote synergy and avoidpossible duplication of work, a Memorandum ofCooperation has been concluded between theSecretariats of the CMS and the CBD.

25. In addition, the CMS Secretariat and the RamsarBureau signed a Memorandum of Understandingin February 1997. The Memorandum seeks toensure cooperation between the two Secretariats inthe fields of joint promotion of the twoconventions, joint conservation action, datacollection, storage and analysis and newagreements on migratory species, includingendangered migratory species and species with anunfavourable conservation status. Some concreteresults of this relationship have already beenobserved, particularly with regard to coordinatedwork between the Ramsar Convention and theCMS's Agreement on the Conservation of African-Eurasian Migratory Waterbirds (“AEWA”). A three-way joint work plan between the Secretariats of theCMS, AEWA and the Ramsar Convention ispresently being developed.

f. Agreements concluded under the CMS

i. Agreement on the Conservation of Seals in theWadden Sea

26. Denmark, Germany and the Netherlandsconcluded an agreement on the conservation of

Wadden Sea Seals (Phoca vitulina) in October1990, which entered into force a year later. Theagreement was concluded in response to adramatic decline in the Wadden Sea sealpopulation, as a consequence of the sudden deathof thousands of individuals in 1988.

27. This Agreement provides for the development of aconservation and management plan, coordinationof research and monitoring, prohibition of taking(with few exceptions), habitat protection, reductionof pollution and public awareness initiatives. Theconservation and management plan outlines insimple terms the specific efforts that are needed toimplement various aspects of the Agreement,indicates what is presently being done, andoutlines specific prescriptions to be undertaken bythe parties. Coordination and cooperation betweenthe range states has intensified considerablythrough the implementation mechanisms of theAgreement. According to the Wadden SeaSecretariat, the seal population has since recoveredand has re-established itself at a stable level.

ii. Agreement on the Conservation of Small Cetaceansof the Baltic and North Seas

28. Parties to the 1991 Agreement on the Conservationof Small Cetaceans of the Baltic and North Seas(“ASCOBANS”), which entered into force in 1994,are Belgium, Denmark, Germany, the Netherlands,Poland, Sweden, the United Kingdom, Finland andLithuania. The ASCOBANS Secretariat is now co-located with the UNEP/CMS Secretariat at the UNpremises in Bonn.

29. ASCOBANS encourages cooperation betweenrange states with respect to habitat conservationand management, measures against pollution,surveys, research and public information. AnAdvisory Committee was established by the firstMeeting of the Parties (“MOP”). The AdvisoryCommittee focuses on issues such as by-catch infishing nets, considered to be one of the greatestthreats facing small cetaceans in the Agreementarea and the reduction of disturbance to cetaceansby human activities. ASCOBANS has alreadystimulated a joint research programme to assess thepopulation and distribution of small cetaceans aswell as research, monitoring and awarenessprogrammes in individual range states.

iii. Agreement on the Conservation of Populations ofEuropean Bats

30. The Agreement on the Conservation of Populationsof European Bats (“EUROBATS”) was concludedas an AGREEMENT within the meaning of article

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IV(3) of the CMS in September 1991 and enteredinto force on 16 January 1994. EUROBATSpresently has more than 25 parties.

31. EUROBATS aims to address threats to 37 batspecies in Europe arising from habitat degradation,disturbance of roosting sites and harmfulpesticides. Scientific work programmesconcentrate on the transboundary programmes forhabitat protection and, in particular, forunderground and forest habitats of bats. Theseprogrammes aim, among other things, to identifysites of European importance and to coordinatedata collection throughout the Agreement area as afirst step and to develop recommendations forhabitat protection and sympathetic forest practicesas a follow-up.

iv. Agreement on the Conservation of African-Eurasian Migratory Waterbirds

32. The Agreement on the Conservation of African-Eurasian Waterbird (“AEWA”), the largestagreement developed so far under the CMS,entered into force on 1 November 1999, when 20contracting parties met in Cape Town, South Africa.The second session of the MOP took place from in2002, in Bonn. The Agreement covers 235 speciesof birds that are ecologically dependent onwetlands for at least part of their annual cycle,including many species of pelicans, storks,flamingos, swans, geese, ducks, waders, gulls andterns.

33. Although AEWA only entered into force severalyears ago, its implementation is well underway. Inearly 2000, the Global Environment Facility(“GEF”) granted US $350,000 for the drafting of aproject brief of a full-size African-Eurasian FlywayGEF project. The goal of the project is to developthe transboundary strategic measures necessary toconserve the network of critical wetland areas onwhich migratory waterbirds depend throughout theAgreement Area. The project will focus on flywayand national protected area planning, capacity-building, demonstration projects, cooperativeresearch and monitoring and communicationsactivities.

v. Agreement on the Conservation of Cetaceans ofthe Black Sea, Mediterranean Sea and

Contiguous Atlantic Area

34. The Agreement on the Conservation of Cetaceansof the Black Sea, Mediterranean Sea andContiguous Atlantic Area (“ACCOBAMS”) enteredinto force in 2001. The parties had their firstmeeting in March 2002. The countries that havejoined the Agreement so far are Bulgaria, Georgia,

Romania (Black Sea) and Croatia, Malta, Monaco,Morocco, Spain (Mediterranean).

35. ACCOBAMS requires signatories to takecoordinated measures to achieve and maintain afavourable conservation status for dolphins,porpoises and whales, and to establish and managea network of specially protected areas for feeding,breeding and calving “within the framework ofappropriate existing instruments.” ACCOBAMScalls on its members to implement acomprehensive conservation plan, and to adoptand enforce domestic legislation to prevent thedeliberate taking of cetaceans in fisheries by vesselsunder their flag or within their jurisdiction, and tominimize incidental catches. Governments alsoundertake to assess and manage human-cetaceaninteractions, to carry out research and monitoring,to develop information, training and publiceducation programmes, and to put in placeemergency response measures. Significantly,membership is also open to non-coastal States ofthe Agreement area whose vessels are engaged inactivities that may affect cetaceans (these aredefined as range states for the purposes ofACCOBAMS).

vi. Memorandum of Understanding concerningConservation Measures for the Siberian Crane

36. The Memorandum of Understanding concerningConservation Measures for the Siberian Crane(“Siberian Crane MOU”) was concluded in 1993and was the first such instrument to be consideredan Agreement under article IV(4) of theConvention. The Siberian Crane MOU now hasnine Signatory States: Azerbaijan, China, India,Islamic Republic of Iran, Kazakhstan, Pakistan,Russian Federation, Turkmenistan, Uzbekistan andMongolia. The remaining Range State(Afghanistan) may become a member in the not toodistant future.

37. Originally, the Siberian Crane MOU concentratedon the highly endangered Western and CentralPopulations of Siberian cranes, which migratebetween breeding grounds in Western Siberia andwintering sites in Iran and India. In 1998, however,the scope of the MOU was extended to cover thelarger Eastern Population, which winters aroundPoyang Lake, China, and accounts for over 95% ofthe species.

vii. Memorandum of Understanding concerningConservation Measures for the Slender-Billed Curlew

40. The Memorandum of Understanding concerningConservation Measure for the Slender-BilledCurlew (“Curlew MOU”) dates from 1994 and

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aims to safeguard the slender-billed curlew,estimated to have declined in number to 200-300by the time of the MOU’s conclusion. The CurlewMOU has 18 range state (Albania, Bulgaria,Croatia, Cyprus, Egypt, Georgia, Hungary, IslamicRepublic of Iran, Kazakhstan, Morocco, Oman,Romania, Spain, Ukraine, Uzbekistan, Yemen,Greece and Italy) as well as Bird Life International,the International Council of Hunting and GameConservation and the UNEP/CMS Secretariat.

viii. Agreement on the Conservation of Albatrossesand Petrels

39. Spain, Australia, New Zealand, Ecuador, Peru,United Kingdom and South Africa have ratified, theAgreement on the Conservation of Albatrosses andPetrels (“Albatrosses Agreement”) in force since2004. It is an AGREEMENT within article IV(3) ofthe CMS.

40. The purpose of the Albatrosses Agreement is toestablish a cooperative and comprehensiveframework and process to achieve and maintain afavorable conservation status for albatrosses andpetrels. The Agreement aims to stop or reversepopulation declines by coordinating action tomitigate known threats to albatross and petrelpopulations. Some of the main threats stem fromlongline oceanic fishing. The Albatross Agreementcalls upon parties to apply the precautionaryapproach, and in particular, “where there arethreats of serious or irreversible adverse impacts ordamage, lack of full scientific certainty shall not beused as a reason for postponing measures toenhance the conservation status of albatrosses andpetrels.”

41. The key potential benefits arising from thedevelopment of the Albatrosses Agreement may besummarized as follows:

• Coordinated action to mitigate known threatsto albatross and petrel populations;

• Coordination of data collection, analysis anddissemination of information;

• Assessment of the international and regionalconservation status of albatrosses and petrelsand threats to the species; and

• Communication of the conservation status ofalbatrosses and petrels to relevantinternational and regional bodies to promoteaction.

ix. Memorandum of Understanding on theConservation and Management of Marine Turtles and

their Habitats of the Indian Ocean and South East Asia

42. The Memorandum of Understanding on theConservation and Management of Marine Turtles(“IOSEA”) was finalized in June 2001. The IOSEAentered into force on 1 September 2001. Thecurrent fifteen signatory states held their firstmeeting in Bangkok, in January 2003. TheSecretariat is co-located with the UNEP RegionalOffice for Asia and Pacific, based in Bangkok, andhas operated since April 2003. As indicated by theGuide, the IOSEA has a potential membership of atleast 40 countries covering the entire Indian Oceanand South East Asia. Threats to marine turtlesinclude the destruction of their habitat, accidentaltaking through commercial fishing, harvesting oftheir eggs, eating of their meat and use of theirshells by local communities.

43. An associated Conservation and Management Planwas elaborated and adopted prior to the IOSEA.The Plan contains 24 programmes and 105 specificactivities, and aims to reverse the decline of marineturtle populations throughout the region. Themeasures to be taken focus on reducing threats,conserving critical habitat, exchanging scientificdata, increasing public awareness andparticipation, promoting regional cooperation andseeking resources for implementation.

x. Memorandum of Understanding concerningConservation Measures for Marine Turtles of the

Atlantic Coast of Africa

44. The Memorandum of Understanding concerningConservation Measures for Marine Turtles of theAtlantic Coast of Africa (“Marine Turtle MOU”)was concluded in May 1999. Range statesgathered again in 2002, to put the finishing toucheson a comprehensive Conservation Plan linked tothe Marine Turtle MOU. On that occasion,representatives of five countries (Angola, Morocco,Sao Tome and Principe, Senegal and Sierra Leone)added their signatures to those of 12 othersignatory states. The Nairobi Declaration, adoptedat the conclusion of the conference, sets the stagefor further concerted implementation of the MarineTurtle MOU. The Nairobi Declaration drawsattention to the problem of marine turtle by-catchin industrial fishing operations and emphasizes theimportance of involving resident communities inthe development and implementation ofconservation activities.

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xi. The Memorandum of Understanding on theConservation and Management of the Middle-

European Population of the Great Bustard

45. The Memorandum of Understanding on theConservation and Management of the Middle-European Population of the Great Bustard (“BustardMOU”) was opened for signature in 2000 andcame into effect in June 2001. The Bustard MOUapplies to the range states of the Great Bustard, ahighly endangered bird in Europe. The MOU callsfor cooperation between national authorities forthe bird’s improved conservation and the strictprotection of the species and its habitat through arange of general and specific activities.

xii. Memorandum of Understanding concerningConservation and Restoration of

the Bukhara Deer

46. The Memorandum of Understanding concerningConservation and Restoration of the Bukhara Deer(“Bukhara Deer MOU”) was concluded in 2002,and signed by Kazakhstan, Tajikistan, Turkmenistanand Uzbekistan. The MOU was developed byCMS in collaboration with the Central AsiaProgramme of the World Wide Fund for Nature(“WWF”). The Bukhara Deer MOU is also signedby cooperating international organizations - WWF,the International Council for Game and WildlifeConservation and the UNEP/CMS Secretariat,which demonstrates the broad internationalconcern about the loss of Central Asia'sbiodiversity and its global importance.

47. The Bukhara Deer risks extinction from a numberof human threats. Artificial regulation of the waterregime, habitat destruction, as well as illegalhunting and poaching are the main reasons for theBukhara Deer's alarming decline in numbers. Thesignatories acknowledge their countries' sharedresponsibility to conserve and restore the BukharaDeer and the habitats upon which the animalsdepend. They recognize that they must takeconcerted, coordinated and immediate action toprevent the disappearance of the remainingpopulations.

xiii. Memorandum of Understanding and Action Planconcerning Conservation Measures for the

Aquatic Warbler

48. The Memorandum of Understanding and ActionPlan concerning Conservation Measures for theAquatic Warbler (“Aquatic Warbler MOU”) wasadopted by governments and Non-GovernmentalOrganizations in 13 European and Africancountries in Minsk, in April 2003.

49. The Aquatic Warbler MOU expresses countries’intentions to identify, protect and manage siteswhere Aquatic Warblers breed (Central Europe andWestern Siberia), rest on migration (WesternEurope) or spend the winter (Central West Africa).Annexed to the MOU is a detailed Action Plan,which summarizes the distribution, biology andthreat status of the Aquatic Warbler, and describesprecise actions to be taken by the relevantcountries.

2. The 1971Ramsar Convention on Wetlands ofInternational Importance Especially

as Waterfowl Habitat

Introduction

50. Wetlands are among the most complex andproductive ecosystems in the world, comparable torainforests and coral reefs. They can host animmense variety of species of microbes, plants,insects, amphibians, reptiles, birds, fish andmammals. All these species are closely linked towetlands and to each other, forming a life cycleand a complex set of interactions. If one speciesdisappears, the entire ecological web isendangered, which could lead to the loss of anentire ecosystem over time. For this reason,protecting wetland habitats is essential formaintaining global and national biodiversity.

51. As their name suggests, wetlands are closely linkedto the presence of water. Responsible for thebalance and purity of the water in lakes and rivers,wetlands also affect the quality of drinking water.They play a role that no other ecosystem canaccomplish, since they act like a natural waterfiltration. Plants, soil and bacteria found inwetlands have a high filtering capacity. Whenwater flows through such areas, plants retainexcess nutrients and pollutants, and oxygenate thearea.

52. Wetlands also retain excess water. Most of theflooding in urban areas is a result of thedisappearance of wetlands in favour ofimpermeable surfaces such as asphalt roads andtarmacked parking lots. When there is heavyrainfall or snowmelt, large volumes of waterrapidly accumulate. Wetlands are like naturalsponges—they capture surface runoff water andbring it back to the surface slowly, preventingserious water level control problems. Inversely,during a drought, these water reservoirs aresignificant sources of water.

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53. Wetlands also limit soil erosion. Plants that takeroot in wetland soils absorb the erosive effects ofwind, slow the abrasive current along the shoreand mitigate sudden water level variations. Theyalso play an important role in the nutrient recyclingprocesses of elements such as nitrogen andphosphorus. Plants absorb and accumulate theseelements in their tissues and in the soil. When theplants die or lose their leaves, the elements arereturned to the environment in another form.

54. Wetlands are equally important in maintaining abalanced carbon cycle. Plants, like animals, giveoff carbon dioxide into the atmosphere throughrespiration, but also absorb some byphotosynthesis in order to transform it into organicmatter. Researchers contend that carbon dioxidereserves can offset the negative effects of human-produced greenhouse gases.

55. As wetlands play an essential role in all naturalcycles, human disturbances impact naturalprocesses. These impacts are, for example,drinking water deterioration and loss, degradationand disappearance of habitats, animals and plantspecies, increase in natural disasters and effects onclimate change. The Ramsar Convention was thefirst treaty to recognize that wetlands are amongthe most productive sources of ecological supporton earth. The Convention was concluded in 1971,entered into force in 1975 and has 146 parties as ofOctober 2005. The Convention currently includes1469 designated sites covering an area of some126,289,246 hectares.

Major Components

56. Article 1 of Ramsar Convention offers some keydefinitions of Terms among them the following

“Wetlands” are defined as “...areas of marsh, fen,peatland or water, whether natural or artificial,permanent or temporary, with water that is static orflowing, fresh, brackish or salt, including areas ofmarine water the depth of which at low tide doesnot exceed six meters.“

Another relevant term is wise use, that has beendefined as the sustainable utilization of wetlandsfor the benefit of human kind in a way compatiblewith the maintenance of the natural properties ofthe ecosystem.

57. The Convention Manual states that five majorwetland types are generally recognized:

• Marine (coastal wetlands including coastallagoons, rocky shores and coral reefs),

• Estuarine (including deltas, tidal marshes and

mangrove swamps),• Lacustrine (wetlands associated with lakes),• Riverine (wetlands along rivers and streams)

and• Palustrine (meaning “marshy” - marshes,

swamps and bogs).

58. The purpose of the 1971 Ramsar Convention is tostop the loss of wetlands and to promote theirconservation and wise use as a means to achievingsustainable development. In 1999 and 2002, themission of the Ramsar Convention was moreparticularly identified as “the conservation andwise use of all wetlands through local, regional andnational actions and international cooperation, as acontribution to achieving sustainable developmentthroughout the world.”

a. Obligations

59. Each state party shall designate at least one wetlandfor inclusion in a List of Wetlands of InternationalImportance (“Ramsar List”) and ensure themaintenance of the ecological character of eachRamsar site (article 2(1)). Wetlands should beselected for the List on account of theirinternational biological, ecological, botanical orhydrological significance (article 2(2)). Countriesare expected to include in the List as manywetlands as possible. In case of urgent nationalinterests, a state may also delete a wetland from thelist or restrict its boundaries. The state then shouldcompensate, however, for the loss by creatingadditional nature reserves for waterfowl either inthe same area or elsewhere. The Conventionrecognizes human-made wetlands; it nowclassifies 42 types, in three categories: Marine andCoastal, Inland and Human-made Wetlands.

60. The inclusion of a site on the list does not prejudicethe sovereign rights of the territorial state. However,the state must conserve, manage and use wisely thelisted wetlands and migratory stocks of waterfowl(article 2(6)).

61. Parties further commit themselves to includewetland conservation within their national land-use planning, with the purpose of promoting thewise use of all wetlands within their territory.Parties are obliged to establish nature reserves,whether they are listed or not, and to endeavor toincrease waterfowl populations (article 4).Furthermore, they are obliged to report to theRamsar Bureau on the status of their listed wetlands(article 3).

62. The Convention also provides for cooperationbetween state parties. Parties must consult witheach other in implementing the Convention,

especially where a wetland extends across theterritories of more than one state.

63. Parties are encouraged to establish NationalWetland Committees referred to as RamsarCommittees, involving all relevant governmentinstitutions at central and state level dealing withwater resources, development planning, protectedareas, etcetera. NGO participation is also activelyencouraged.

b. National Implementation

64. The Convention does not place specific obligationson state parties to enact legislation to protectwetlands. However, the requirement to designateat least one wetland upon signing the Convention,together with the obligation under article 3 to“formulate and implement their planning so as topromote the conservation of wetlands included inthe List and as far as possible the wise use ofwetlands in their territory” implies a strong need toensure that a domestic scheme of legislativeprotection is necessary.

c. Institutions

65. In 1987, an amending protocol established a CoPas a primary Ramsar Convention institution. In itsfirst six meetings, the COP adopted some 120decisions to give greater precision to the definitionof wetlands and to standardize the informationform to describe the designated sites.

66. The COP meets every three years and approvesresolutions, recommendations and technicalguidelines to further the application of theConvention. The Standing Committee includesRegional Representatives of Ramsar geographicalregions and meets annually. A Scientific andTechnical Review Panel provides guidance on keyissues related to the application of the Convention.The Secretariat, called the Ramsar Bureau, sharesheadquarters with the World ConservationUnion/IUCN in Switzerland, and coordinates theday-to-day activities of the Convention. TheRamsar Bureau also administers the annual budget.Each party contributes a percentage related to itscontribution of the United Nations budget. Theminimum contribution for contracting party iscurrently US $700 per annum. In addition, manycountries and other donors make contributions tospecial Ramsar Bureau projects.

67. An additional special register, called the MontreuxRecord, was established to identify Ramsar sitesfacing problems related to the maintenance of theirecological character. The COP further established a

fund in 1990, now known as the Ramsar SmallGrants Fund for Wetland Conservation and WiseUse, which provides developing states withfinancial support for wetlands conservationactivities.

d. Relationship and Cooperation with otherBiodiversity Related MEAs

68. The Secretariat of the Ramsar Convention has beentaking vigorous steps to encourage itsadministrative authorities and national focal pointsto build close working relationships with theircounterparts of other related conventions at theinternational level. Such initiatives have provenbeneficial for both sides. The Convention worksclosely with other environmental conventions andinstitutions. Its Bureau has recently concluded athird Joint Work Plan with the Secretariat of theConvention on Biological Diversity for the period2002-2006, which was approved by COP-8 inNovember 2002. This Joint Work Plan provides ablueprint for mutual cooperation between the twoSecretariats. The COP of both conventions alsopromotes increased communication andcooperation between their subsidiary scientificbodies whose members regularly participate in thework and meetings of one another. The RamsarBureau also has concluded Memoranda ofCooperation with the Conventions onDesertification and World Heritage, and has signeda Memorandum of Understanding with the CMSSecretariat. The Bureau also works closely withfunding institutions such as the World Bank and theGlobal Environment Facility.

3. The 1973 Convention on International Trade inEndangered Species of Wild Fauna and Flora

(“CITES”)

Introduction

69. Today, nearly a third of the world's wildlife is indanger of extinction and a major cause, secondonly to habitat loss, is commercial trade.International trade in endangered species is ahighly lucrative business. Improvement in transportfacilities has made it possible to ship live animals,plants and their products anywhere in the world.International trade of endangered species involvesa wide variety of species, both as live specimensand as products, and concerns millions of animalsand plants every year. Trade includes live animals,plants and a vast array of wildlife products derivedfrom them, including food products, exotic leathergoods, wooden musical instruments, timber, touristcurios and medicines.

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70. In many regions of the world, the level ofexploitation of particular animal and plant speciesis high and the trade in them, together with otherfactors, such as habitat loss, is resulting in heavydepletion of their populations and even bringingsome species close to extinction. A dramaticexample is the vicuna, a gazelle-like relative of thecamel, which lives in the High Andes. Because ofits exceptionally fine and warm wool, which hasbeen in great demand in North America andEurope, nearly half a million were slaughtered afterthe Second World War before Peru pioneeredprotection in the 1960 to save the species.

71. Because the trade in wild animals and plants oftencrosses borders between countries, the effort toregulate such trade requires internationalcooperation. CITES was conceived in the spirit ofsuch cooperation. The Convention entered in forcein 1975. Today, CITES accords varying degrees ofprotection to more than 30,000 species of animalsand plants, whether they are traded as livespecimens, fur coats or dried herbs. Not onespecies protected by CITES has become extinct asa result of trade since the Convention entered intoforce and 169 parties as of August 2005,with CITESis among the largest conservation agreements inexistence.

Major Components

a. Definitions

72. Some definitions from CITES include:

"Species means any species, subspecies, orgeographically separate population thereof.”

"Specimen means: (i) Any animal or plant, whether alive or dead; (ii) In the case of an animal: for species included

in Appendices I and II, any readilyrecognizable part or derivative thereof; andfor species included in Appendix III, anyreadily recognizable part or derivative thereofspecified in Appendix III in relation to thespecies; and

(iii) In the case of a plant: for species included inAppendix I, any readily recognizable part orderivative thereof; and for species included inAppendices II and III, any readilyrecognizable part or derivative thereofspecified in Appendices II and III in relation tothe species.”

"Trade means export, re-export, import andintroduction from the sea”.

73. The aim of the Convention is to protect endangeredspecies. This is done by banning the trade ofendangered species and regulating trade in othercommercially exploited species. This shouldensure sustainable trade and economic benefits forexporting countries.

b. Obligations and Structure

74. The species covered by the Convention are listedin three Appendices, according to the degree ofprotection they need:

• Appendix I includes species threatened withextinction. Trade in specimens of thesespecies is permitted only in exceptionalcircumstances.

• Appendix II includes species not necessarilythreatened with extinction, but in which trademust be controlled in order to avoidutilization incompatible with their survival.Article II(2)(b) allows so-called “look-alike”species to be added to Appendix II, even ifthey are not threatened with extinction, inorder to make effective control possible.

• Appendix III contains species that areprotected in at least country one that hasasked other CITES parties for assistance incontrolling the trade.

75. Each party to the Convention must designate aManagement Authority and a Scientific Authority.The Management Authority is in charge ofadministering the licensing system. The ScientificAuthority advises the respective party on the effectsof trade on the status of the species.

76. A specimen of listed species may be imported intoor exported (or re-exported) from a state party onlyunder strict conditions. Appropriate documentsmust be obtained and presented for clearance atthe port of entry or exit.

i. Trade in Appendix I Specimens (article III)

77. In order for trade in Appendix I species to occur,the trade must conform to the provisions of articleIII. This includes the requirement that an exportpermit or re-export certificate must be issued by themanagement authority of the state of export. Anexport permit may be issued only if the specimenwas obtained in a legal way, and if the trade willnot be detrimental to the survival of the species andthat an import permit has already been issued. Ifthe specimen is a live animal or plant, thespecimen must be prepared and shipped so as tominimize any risk of injury, damage to health orcruel treatment. A re-export certificate may be

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issued only if the specimen was imported in linewith the provisions of the Convention.

78. Further, for such trade to occur, an import permitmust be issued by the management authority of thestate of import. This may be issued only if ascientific authority of the state of import is satisfiedthat the purpose of its import is not detrimental tothe survival of the species, that the proposedrecipient is suitably equipped to house and care forit, and that the management authority of the state ofimport is satisfied that the specimen will not beused for primarily commercial purposes.

ii. Trade in Appendix II Specimens (article IV)

79. All trade in Appendix II specimens must be inaccordance with article. IV. An export permit or re-export certificate needs to be issued by themanagement authority of the state of export. Anexport permit may only be issued if the export willnot be detrimental to the survival of the species, thespecimen was obtained in accordance with thelaws of the exporting state for the conservation offlora and fauna. If the specimen in question is a liveanimal or plant, it must be prepared and shipped ina way that minimizes any risk of injury, damage tohealth or cruel treatment. A re-export certificatemay only be issued if the specimen was importedin accordance with the Convention

80. In the case of specimens introduced from the sea,for species listed in Appendix I or II, a certificatemust be issued by the Management Authority of thestate into which the specimens are being brought.

iii. Trade in Appendix III Specimens (article V)

81. All trade in Appendix III specimens must be inaccordance with article V. In the case of trade froma state that included the species in Appendix III, anexport permit can be issued by the managementauthority under the same conditions as forAppendix species.

82. In the case of export from any other state, theManagement Authority of the exporting State mustissue a certificate of origin.

83. In the case of re-export, the state of re-export mustissue a re-export certificate.

84. The Convention allows or requires parties to makecertain exceptions to the general principlesdescribed above; however, a permit or certificatewill generally still be required. These exceptionsare made for specimens in transit or being trans-shipped, for specimens that were acquired beforethe Convention’s provisions applied to them

(known as pre-Convention specimens), forspecimens that are personal or household effects,for animals that were bred in captivity and forplants that were bred artificially, for specimensused for scientific research and for animals orplants forming part of a travelling collection orexhibition (such as a circus).

85. Some parties have domestic legislation with tradecontrols stricter than those required by theConvention. In these cases, compliance with CITESregulations may therefore not be sufficient toensure that trade is legal.

86. As concerns trade with non-parties, a party mayaccept documentation equivalent to the permitsand certificates described above, in the case that aspecimen of a CITES-listed species is transferredbetween the party and other non-parties. Thisequivalent documentation however must conformto the requirements of the Convention in asubstantial degree (article X).

87. Appendix II specimens do not require an importpermit unless this is required under national law.

iv. Compliance and Enforcement

88. Although there is no CITES article specificallydealing with non-compliance, measures to ensurecompliance can be drawn from other provisions inthe Convention. Measures aim at monitoring andpromoting compliance and at identifying cases ofnon-compliance. To date, CITES has dealt withnon-compliance in a consultative and non-judicialmanner. However, one suggestion for improvingthe effectiveness would be the threat, and in casesof persistent non-compliance, the effectivesuspension of trade.

c. National Implementation

90. While CITES does not specifically require theenactment of legislation, it includes reference atvarious points to the application of domestic lawsof the state of export or import in relation to floraand fauna. Thus, there is a strong expectation thatparties will enact legislation which incorporates theobligations taken on when becoming a party to theConvention. Indeed, without appropriatelegislation, it would be very difficult for any partyto carry out the detailed obligations of appointmentof management authorities and scientificcommittees, listing of species, issue of import andexport permits and other onerous requirements ofunder the Convention.

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d. Institutions

90. Every two to three years, the COP meets to reviewthe implementation of the Convention. The COPprovides the occasion for the parties to reviewprogress in the conservation of species included inthe Appendices, consider proposals to amend thelists of species in Appendices I and II, and toconsider discussion documents and reports fromthe Secretariat, parties, permanent committees andother working groups. The COP may recommendmeasures to improve the effectiveness of theConvention and make provisions, including theadoption of a budget, necessary to allow theSecretariat to function effectively between theCOPs.

91. In order to facilitate the work of the COP and tokeep that work in progress between meetings, theCOP has established four permanent committeesthat report to it at each meeting. These are theStanding Committee (which is the seniorcommittee), the Animals Committee, the PlantsCommittee and the Nomenclature Committee.

92. The Standing Committee provides policy guidanceto the Secretariat concerning the implementation ofthe Convention and oversees the management ofthe Secretariat's budget. Beyond these key roles,the Standing Committee coordinates and overseesthe work of other committees and working groups,carries out tasks assigned to it by the COP anddrafts resolutions for consideration by the COP.

93. The Animals and Plants Committees wereestablished to fill gaps in biological and otherspecialized knowledge regarding species ofanimals and plants subject to CITES trade controls.Their role is to provide technical support todecision-making about these species. TheNomenclature Committee was established to meetthe obvious need to standardize the nomenclatureused in the Appendices and in other CITESdocuments. The Nomenclature Committeerecommends standard names for animal or plantspecies, to the level of subspecies or botanicalvariety.

e. Relationship and Cooperation with otherBiodiversity-Related MEAs

94. The CITES Secretariat makes efforts not only toincrease cooperation with other biodiversity-related conventions but also to enhance mutualunderstanding and cooperation with theConvention’s “technical partners.” These partnersinclude the UNEP Conservation Monitoring

Centre, the World Conservation Union/IUCN andthe Wildlife Trade Monitoring Programme of theWorld Wildlife Fund. CITES aims at increasingcoordination in capacity-building, training,awareness raising, fund raising and regionalization.

4. The 1994 Lusaka Agreement on CooperativeEnforcement Operations Directed at Illegal Trade

in Wild Fauna and Flora

Introduction

95. In spite of the existence of international instrumentssuch as CITES and the CBD, illegal trade in wildfauna and flora in the African region has continuedvirtually unabated.

96. Profit margins are high and the risk of being caughtis low, giving animal poachers plenty of room tomove. Many of the animals being taken from thewild are now worth more dead than alive. Themore endangered a species is, the more valuable itis to collectors on the black market. It is estimatedthat the annual value of illegal internationalwildlife trade is second in monetary value only tothe illegal trade in drugs. International crimesyndicates have taken advantage of poor workingconditions and limited resources of national lawenforcement agencies. These crime syndicatesprovide monetary incentives, arms andammunition to poachers.

97. Governments have realized that individual effortsby a government and traditional enforcementmethods are no longer capable of providingeffective protection to African species from theillegal trade carried out by international organizedcrime syndicates. The need for closer cooperationamong designated national law enforcementagencies to save African wild fauna and florabrought about the adoption of the 1994 LusakaAgreement on Cooperative EnforcementOperations Directed at Illegal Trade in Wild Faunaand Flora (“Lusaka Agreement”). To date, sevengovernments are parties to the Lusaka Agreement,which entered into force on 10 December 1996.The parties are Kenya, United Republic ofTanzania, Uganda, Lesotho, Liberia, Congo andZambia. Other states and invited organizationssend observers to the Governing Council meetings.

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Major Components

98. Per article 1 key Terms in the Agreement aredefined:-

"Agreement area" means the area comprised of theland, marine and coastal areas within the limits ofnational jurisdiction of the Parties to this LusakaAgreement and shall include their air space andinternal waters.

"Biological diversity" means the variability amongliving organisms from all sources including, interalia, terrestrial, marine and other aquaticecosystems and the ecological complexes of whichthey are part; this includes diversity within species,between species and of ecosystems.

“Illegal trade” means any cross-border transaction,or any action in furtherance thereof, in violation ofnational laws of a Party to this Agreement for theprotection of flora and fauna.

“Specimen” means any animal or plant, alive ordead, as well as any derivative thereof, of anyspecies of wild fauna and flora.

“Wild fauna and flora” means wild species ofanimals and plants subject to the respectivenational laws of the Parties governingconservation, protection and trade.

99. The Agreement seeks to reduce and ultimatelyeliminate illegal trade in wild fauna and flora, andto establish a permanent Task Force for thispurpose. It seeks to do so without compromisingnational sovereignty.

a. Obligations of the Parties

100. Parties are committed to cooperate with oneanother, and to investigate and prosecute cases ofillegal trade. They must provide scientific data andtechnical assistance to the Task Force, based inKenya, and also pay their annual assessedcontribution to this important institution of theConvention. Parties must return to the country oforiginal export or country of re-export anyspecimen of wild fauna and flora confiscated in thecourse of illegal trade. Furthermore, they areobliged to encourage public awareness campaigns.

b. National implementation

101. Under article 4(8), each party is obliged to adoptand enforce such legislative and administrativemeasures as may be necessary for the purposes ofgiving effect to the Agreement.

c. Institutions

102. The Task Force is a unique permanent multi-national institution composed of law enforcementofficers from each of the parties. It is capable ofoperating in a transboundary manner againstinternational wildlife smuggling rings. It iscomposed of field officers, intelligence officers andofficers appointed by the Governing Council.These officers are seconded to the Task Force bythe parties and will retain their national lawenforcement powers in their respective countries.Apart from the annual contribution by the parties,the Task Force receives extra budgetary resourcesfrom donor countries such as grants, technicalassistance and project funding.

103. The Task Force’s functions include the facilitationof activities among the National Bureaus incarrying out investigations of illegal trade and thecollection and dissemination of informationrelating to illegal trade, and the establishment andmaintenance of databases. At the request ofNational Bureaux the Task Force carries outinvestigations of national laws concerning illegaltrade and provides information on the return ofconfiscated flora and fauna to the country of exportor re-export.

104. Each party must designate or establish a NationalBureau. The functions of National Bureau are toprovide and receive information on illegal tradeand to coordinate with the Task Force oninvestigations thereof. Most governments havedesignated their national wildlife serviceauthorities for this role.

105. The Governing Council, which is the policy anddecision-making body for the Lusaka Agreement,consists of the parties to the Agreement. Each partyis represented at ministerial level and with high-ranking officials in the field of wildlife lawenforcement.

d. Relationship and Cooperation with otherBiodiversity-Related MEAs

106. The Agreement reinforces the work of CITES andthe Convention on Biological Diversity. However,unlike CITES, which lists specific species under theAppendices, the Lusaka Agreement is broad inscope, dealing with illegal trade of all species ofwild fauna and flora at the regional level. Likewise,the Agreement reinforces the CBD, which aims at,among other things, creating awareness of the needto conserve and sustainably use biologicalresources before they are further diminished or lost.

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5. The 1972 Convention concerning the Protection ofthe World Cultural and Natural Heritage

Introduction

107. The Great Barrier Reef is the largest coral reefsystem that has ever existed. The Grand Canyonretraces two billion years of the earth's history. TheGalapagos Islands inspired Charles Darwin in histheory of evolution. The Island of Gorée is areminder of slavery. The Citadel of Haiti is asymbol of liberty, built by slaves who had gainedtheir freedom. These cultural and natural sites arevery diverse, yet they have in common the fact thatthey constitute, together with many others, acommon heritage to be treasured as uniquetestimonies to an enduring past. Theirdisappearance would be an irreparable loss forhumanity.

108. The cultural heritage and the natural heritagerepresent priceless and irreplaceable possessions,not only of each state, but of humankind as awhole. The loss, through deterioration ordisappearance, of any of these prized possessionswould constitute an impoverishment of theheritage of all the peoples in the world. Parts of thatheritage, because of their exceptional qualities, canbe considered to be of “outstanding universalvalue” and, as such, worthy of special protectionagainst the dangers which increasingly threatenthem.

Major Components

109. The Convention Concerning the Protection of theWorld Cultural and Natural Heritage (“The WorldHeritage Convention”) was adopted by the GeneralConference of UNESCO in 1972, and has beenadhered to by 180 parties (April 2005). TheConvention is one of the most completeinternational instruments that exists in the field ofconservation. It is based on the recognition thatparts of the cultural and natural heritage of variousnations are of outstanding universal significanceand need to be preserved as part of the worldheritage of humankind as a whole. The Conventionalso affirms in its preamble that the cultural andnatural heritage is increasingly threatened withdestruction by changing social and economicconditions. The World Heritage Convention issupplemented by Operational Guidelines drawnup and updated from time to time by its WorldHeritage Committee.

110. The primary function of the Convention’sprovisions is to define and conserve the world'sheritage, by drawing up a list of sites whoseoutstanding universal values should be preserved

for all humanity and to ensure their protectionthrough a closer cooperation among nations.

111. Article 2 defines ‘natural heritage’ to include:

• Natural features consisting of physical andbiological formations or groups of suchformations, which are of outstanding universalvalue, from the aesthetic or scientific point ofview;

• Geological and physiographical formationsand precisely delineated areas whichconstitute the habitat of threatened species ofanimals and plants of outstanding universalvalue from the point of view of science orconservation; and

• Natural sites or precisely delineated naturalareas of outstanding universal value, from thepoint of view of science, conservation ornatural beauty.

112. Because of the fact that many sites are acombination of natural and cultural sites, as well as“cultural landscapes,” it is also important toinclude here a brief consideration of culturalheritage under the World Heritage Convention.“Cultural heritage” is defined in article 1 as:

• Monuments: architectural works, works ofmonumental sculpture and painting, elementsor structures of an archaeological nature,inscriptions, cave dwellings andcombinations of features, which are ofoutstanding universal value from the point ofview of history, art or science;

• Groups of buildings: groups of separate orconnected buildings which, because of theirarchitecture, their homogeneity or their placein the landscape, are of outstanding universalvalue from the point of view of history, art orscience;

• Sites: works of man or the combined works ofnature and man, and areas includingarchaeological sites which are of outstandinguniversal value from the historical, aesthetic,ethnological or anthropological point of view.

113. The international system of protection is ensuredon both the national and international level.Cultural and natural property that forms part of theworld heritage remains subject to the legislation ofthe state where it is located. Thus, territorialsovereignty and property rights over elements ofthe world natural heritage are respected by theWorld Heritage Convention. However, the countryhosting a heritage site has both rights andobligations. Article 4 requires each party to ensurethe identification, protection, conservation,presentation and transmission to future generations

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of the cultural and natural heritage situated withinits territory. Parties periodically have to submitreports to a specially created committee on themeasures that they have taken to implement theConvention.

114. At the international level, the entire internationalcommunity has a duty to cooperate in theprotection of the world cultural and naturalheritage. This duty includes an obligation not totake any deliberate measures which might damagedirectly or indirectly the cultural or natural heritageand for other parties to support the requesting statein the identification, protection, conservation andpresentation of cultural and natural heritage,recognizing that it constitutes a universal heritage.

a. World Heritage Committee

115. The Intergovernmental Committee for theProtection of the Cultural and Natural Heritage ofOutstanding Universal Value, also referred to as theWorld Heritage Committee, consists of twenty-onemembers elected by the General Assembly of Stateparties during the General Conference ofUNESCO. Representatives of internationalintergovernmental and Non-GovernmentalOrganizations (“NGOs”) may attend the meetingsin an advisory capacity and be invited toparticipate in particular discussions and problems.The Secretariat of the Committee, which operatesas the World Heritage Centre in Paris, is providedby the Director General of UNESCO.

b. World Heritage List

116. A major task of the World Heritage Committee isthe establishment, maintenance and publication ofthe World Heritage List. To be included on theWorld Heritage List, sites must satisfy the selectioncriteria. These criteria are explained in theOperational Guidelines. The criteria have beenrevised regularly by the World Heritage Committeeto match the evolution of the World Heritageconcept itself. Natural properties should:

• Be outstanding examples representing majorstages of the earth's history, including therecord of life, significant ongoing geologicalprocesses in the development of landforms, orsignificant geomorphic or physiographicfeatures; or

• Be outstanding examples representingsignificant ongoing ecological and biologicalprocesses in the evolution and developmentof terrestrial, fresh water, coastal and marineecosystems and communities of plants and

animals; or• Contain superlative natural phenomena or

areas of exceptional natural beauty andaesthetic importance; or

• Contain the most important and significantnatural habitats for in situ conservation ofbiological diversity, including thosecontaining threatened species of outstandinguniversal value from the point of view ofscience or conservation.

117. The Operational Guidelines state that in principle,a site could be inscribed on the List if it satisfies oneof these four criteria and the relevant conditions ofintegrity. However, it is pointed out that mostinscribed sites have met two or more criteria.

118. Sites are listed on the basis of the detailed criteriafound in the Guidelines and only with consent ofthe territorial state. If the listed property is claimedby more than one state, competing rights to theproperty are not to be prejudiced by inclusion onthat list.

119. The World Heritage Committee also has the powerto remove properties from the World Heritage Listif the property has deteriorated to the extent that ithas lost those characteristics which determined itsinclusion in the World Heritage List, where theintrinsic qualities of a World Heritage site werealready threatened at the time of its nomination byaction of man and where the necessary correctivemeasures as outlined by the state party at the time,have not been taken within the time proposed. Thepossibility of deletion from the List acts as anincentive on state parties to comply with theConvention’s requirements.

c. List of World Heritage in Danger

120. The World Heritage Committee establishes andpublishes a List of World Heritage in Danger,which includes property threatened by serious andspecific dangers, such as the threat ofdisappearance caused by accelerateddeterioration, large-scale public or private projects,armed conflict, natural calamities, like fires,earthquakes, landslides, etcetera. This List isdesigned to call the world's attention to natural orhuman-made conditions that threaten thecharacteristics for which the site was originallyinscribed on the World Heritage List. Endangeredsites on this list are entitled to particular attentionand emergency action. In urgent cases, such asoutbreak of war, the Committee will make thelisting itself without having received a formalrequest. This List currently contains 35 properties.

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121. The List of World Heritage in Danger has recentlybeen the subject of discussion between the stateparties, with suggestions that properties could onlybe placed on this List with the consent of therelevant state party. The World Heritage Committeeresolved to clarify the situation by indicating in theOperational Guidelines that placing a property onthis List is within the discretion of the Committee:the Committee may include a property in the List ofWorld Heritage in Danger when the followingrequirements are met:

• The property under consideration is on theWorld Heritage List,

• The property is threatened by serious andspecific danger,

• Major operations are necessary for theconservation of the property, and

• Assistance under the WHC has beenrequested for the property and the Committeeis of the view that its assistance in certaincases may most effectively be limited tomessages of its concern, including themessage sent by inclusion of a site on the Listof World Heritage in Danger and that suchassistance may be requested by anyCommittee member or the Secretariat.

d. International Assistance

122. A further major function of the World HeritageCommittee is to receive and study requests forinternational assistance formulated by parties to theWorld Heritage Convention for conservationpresentation or rehabilitation of any part of theworld cultural or natural heritage. The Committeedecides on action in response to the requests anddetermines an order of priorities for its operations,taking into account both the intrinsic value of theproperty, protection and the ability of the stateconcerned to safeguard such property by its ownmeans. The World Heritage Committee maintainsa list of properties for which internationalassistance has been granted.

e. World Heritage Fund

123. The financial means to carry out assistance isprovided through an international trust fund for theProtection of World Cultural and Natural Heritageof Outstanding Universal Value, called the WorldHeritage Fund. This Fund is used, for example, tofinance expert studies to determine and fight thecauses of deterioration or to plan conservationmeasures, to finance training of local specialists inconservation or renovation techniques, to supplyequipment for the protection of a natural park or torestore a cultural monument.

124. The World Heritage Fund is replenished fromvarious sources:

• Obligatory contributions from states parties tothe World Heritage Convention which arefixed at no more than 1% of their contributionto the budget of UNESCO, and

• Voluntary contributions from states, donationsfrom institutions or private individuals, orearnings from national or internationalpromotional activities.

125. The World Heritage Committee may use thecontributions only for defined purposes or acceptcontributions limited to a particular programme orproject, provided no political conditions areattached.

126. A state that seeks international assistance mustsubmit a formal request together with relevantinformation, supported by experts’ reports wherepossible. This serves to define the operationcontemplated, the work necessary, the expectedcosts, the degree of urgency and the availableresources of the state. Assistance can take variousforms, including studies, provision of experts andtechnicians, training of staff, equipment andinterest-free loans. However, the contribution bythe state being assisted must be substantial.

127. A project or programme for which assistance isgranted is defined in an agreement between theWorld Heritage Committee and the recipient state.This agreement also sets forth the conditions underwhich the project or programme operates.

f. Advisory Bodies

128. The Convention includes three internationalorganizations which advise the World HeritageCommittee in making its decisions: for naturalproperties, it is IUCN-The World ConservationUnion; for cultural properties, it is the InternationalCouncil on Monuments and Sites; and for adviceon restoration and training for cultural properties, itis the International Centre for the Study of thePreservation and Restoration of Cultural Property.

g. Secretariat

129. UNESCO provides the World HeritageConvention's Secretariat. In 1992, UNESCOestablished the UNESCO World Heritage Centre tocarry out this function. The Centre liaises closelywith the Advisory Bodies in order to administer theConvention and to advise the World HeritageCommittee.

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h. National Implementation, Supervision andCompliance

130. Article 29 provides for a measure of internationalsupervision through the establishment of a statereporting system. Each state party submits reports tothe General Conference of UNESCO containinginformation on the legislative and administrativeprovision that it has adopted and other action thatit has taken to apply the World HeritageConvention. These reports are communicated tothe World Heritage Committee. Furthermore, thepossibility of de-listing from the World Heritage Listis an incentive to compliance with theConvention’s requirements.

131. While couched in mild language, the Conventioncontains detailed indications of what state partiesshould do to implement the Convention’sobligations at a national level. Article 5 providesthat: “To ensure that effective and active measuresare taken for the protection, conservation andpresentation of the cultural and natural heritagesituated on its territory, each state party to theConvention shall endeavour, in so far as possible,and as appropriate for each country:(a) to adopt a general policy which aims to give

the cultural and natural heritage a function inthe life of the community and to integrate theprotection of that heritage into comprehensiveplanning programmes;

(b) to set up within its territories, where suchservices do not exist, one or more services forthe protection, conservation and presentationof the cultural and natural heritage with anappropriate staff and possessing the means todischarge their functions;

(c) to develop scientific and technical studies andresearch and to work out such operatingmethods as will make the State capable ofcounteracting the dangers that threaten itscultural or natural heritage;

(d) to take the appropriate legal, scientific,technical, administrative and financialmeasures necessary for the identification,protection, conservation, presentation andrehabilitation of this heritage; and

(e) to foster the establishment or development ofnational or regional centres for training in theprotection, conservation and presentation ofthe cultural and natural heritage and toencourage scientific research in this field.”

132. Despite the terms of article 5(d) in relation to takingthe appropriate legal, scientific, technical,administrative and financial measures, few stateparties have actually adopted specific legislation toimplement the obligations of the World Heritage

Convention at national level. Most rely on existinglegislation policies and administrativemechanisms. The exceptions include South Africa,which is discussed in section III below, andAustralia.

i. Relationship and Cooperation with otherBiodiversity-Related MEAs

133. A Memorandum of Understanding was signedbetween the World Heritage Centre and theRamsar Bureau in 1999. The World Heritageofficer in charge and the Ramsar Bureau of naturalsites maintain a close working relationship with aview to:

• Promoting nominations of wetlands sitesunder the two Conventions;

• Reviewing reporting formats andcoordinating the reporting about shared sites;

• Contributing to both Conventions' trainingefforts;

• Coordinating fundraising initiativesconcerning shared sites; and

• Encouraging the establishment of jointnational committees.


134. Examples of implementation of three of the fourConventions and one Agreement in Section II inthree countries, namely Uganda, Singapore andSouth Africa, are given showing some of thevarying strategies adopted by states in meeting theirobligations under these instruments.Thesestrategies can include incorporation of conventionrequirements within legislation, as well as throughadministrative guidelines and policies in line withthe practice and procedure of a particular party.

1. Uganda: Implementing the Ramsar Convention

135. Wetland resources in Uganda traditionally havebeen utilized by the people as a source of materialsfor construction, crafts, furniture, and as huntingand fishing areas. Traditionally, seasonal wetlandsand margins of permanent wetlands have beenused for grazing cattle, growing crops and as asource for domestic water. In addition, they are amajor habitat for wildlife resources. Despite thesevalues, wetlands have been regarded previously as"wastelands," and many have been reclaimed anddegraded.

136. Uganda is a signatory and Contracting Party of theRamsar Convention on Wetlands of InternationalImportance Especially as Waterfowl Habitat. The

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Ramsar Convention entered into force in Ugandain 1988.

137. To carry out its responsibilities with respect to thecountry’s wetlands, the government has outlinedbroad aims which are also supported by a numberof specific goals. Guiding principles will govern themanner in which the National Policy on theConservation and Management of the WetlandResources (“National Policy”) will beimplemented. The National Policy complementsthe goals and objectives of the National

Environment Action Plan (“NEAP”) and sectoralpolicies such as fisheries, forestry, wildlife, water,land tenure and soils, among others.

138. The Ugandan National Environment Statute(1995), Chapter 153 of the Laws of Uganda,implements the Ramsar Convention by includingspecific provisions on wetlands:

139. These provisions on wetlands have beenimplemented through the National Environment(Wetlands, River Banks and Lake Shores

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Uganda, National Environment Statute (1995), chapter 153

Restrictions on the use of wetlands37. (1) No person shall-

(a) reclaim or drain any wetland;(b) erect, construct, place, alter, extend, remove or demolish any structure that is fixed in, on, under or over

any wetland;(c) disturb any wetland by drilling or tunneling in a manner that has or is likely to have an adverse effect on

the wetland;(d) deposit in, on, or under any wetland any substance in a manner that has or is likely to have an adverse

effect on the wetland;(e) destroy, damage or disturb any wetland in a manner that has or is likely to have an adverse effect on any

plant or animal or its habitat;(f) introduce or plant any exotic or introduced plant or animal in a wetland, unless he has written approval

from the Authority given in consultation with the lead agency.

(2) The Authority may, in consultation with the lead agency, and upon an application to carry on any activityreferred to in subsection (1), make any investigation it considers necessary, including an environmental impactassessment referred to in section 20 to determine the effect of that activity on the wetland and the environmentin general.

(3) The Authority shall, in consultation with the lead agency, and by statutory order, specify the traditional uses ofwetlands which shall be exempted from the application of subsection (1).

Management of wetlands38. (1) The Authority shall, in consultation with the lead agency, establish guidelines for the identification and

sustainable management of all wetlands in Uganda.

(2) The Authority shall, with the assistance of the Local Environment Committees, District Environment Committeesand lead agency, identify wetlands of local, national and international importance as ecosystems and habitatsof species of fauna and flora and compile a national register of wetlands.

(3) The Authority may, in consultation with the lead agency and the District Environment Committee declare any wetland to be a protected wetland thereby excluding or limiting human activities in that wetland.

Uganda, National Environment (Wetlands, River Banks and Lake Shores Management) Regulations in 1999 (No. 3 of 2000)

4. The objective of this Part of the Regulations is to

(a) provide for the conservation and wise use of wetlands and their resources in Uganda;(b) give effect to clause 2 of article 237 of the Constitution of Uganda;(c) ensure water catchment conservation and flood control;(d) ensure the sustainable use of wetlands for ecological and touristic purposes for the common good of all citizens;(e) ensure that wetlands are protected as habitats for species of fauna and flora;(f) provide for the regulated public use and enjoyment of wetlands;(g) enhance research and research related activities; and(h) minimize and control pollution.

Management) Regulations in 1999 (No. 3 of 2000)(“National Regulations”).

140. Part II of the National Regulations provides for themanagement of wetlands and wetland resources.The objectives of this Part are to provide for theconservation and wise use of wetlands and theirresources in Uganda. Regulation 4 provides:

141. A Technical Committee on BiodiversityConservation, established under Section 11 of theNational Legislation, is responsible for advising theBoard and the Executive Director on the wise use,management and conservation of wetlandresources. Specific functions of the TechnicalCommittee are set out in Regulation 6, whereasfunctions of District Environment Committees areset out in Regulation 7.

142. The Minister may declare protected wetlandsunder Regulation 8.

The Minister may, by statutory instrument, and afterconsultation with the lead agency and with the priorapproval from the Policy Committee on theEnvironment, declare a wetland by stating whether awetland is fully protected, partially protected or subjectto conservation by the local community.

A wetland declared under Sub-Regulation (2)(a) is anarea of international and national importance because ofits biological diversity, ecological importance,landscape, natural heritage or touristic purposes. Thefollowing activities may be permitted: research, tourismand restoration or enhancement of the wetland. UnderSub-Regulation of (2)(c) of the National Regulations, adeclared wetland is an area in which a person who hasproperty rights in the land may perform traditionalactivities, subject to any local environmental restrictions.

143. Other regulations of Part II concern an inventory ofwetlands and the use of wetlands and granting ofuse permits. Part III of these Regulations shall applyto all riverbanks and lake shores in Uganda. Itsprovisions promote sustainable use and protectionof riverbanks, prevent siltation of rivers and lakesand control pollution or degrading activities. Aninventory of degraded riverbanks shall be made bylocal authorities and persons wishing to useriver banks shall apply for a permit. Part IVprovides for environmental impact assessment andenvironmental restoration.

2. Singapore: Implementing CITES

144. Singapore ratified CITES in 1986 and has sinceintroduced legislation to control illegal trading ofendangered species of animals. The EndangeredSpecies Act (“Import & Export Act”) gives effect toCITES by controlling the importation, exportationand introduction from the sea of certain animals

and plants. Section 2 includes definitions of termswithin the text. A permit, issued by the Director,Primary Production, is required to import, export orintroduce from the sea any species that are listedon the schedule (Section 5). There are penalprovisions concerning those who obstruct theexecution of this Act or commit an offence underthe Act. Under the Import and Export Act, anyonewho is convicted of the offence is liable to amaximum fine of not more than US $5,000 or a jailterm not exceeding a year or both. Repeatoffenders would be fined up to a maximum notexceeding US $10,000 or jailed for not more thana year or both.

145. The Minister may make rules providing for theissue of permits or provisions relating to thepurposes of the Import and Export Act. The Actcontains a Schedule listing the species that arerelevant.

3. South Africa: Implementing the World HeritageConvention

146. In 1997, the Republic of South Africa signed theWorld Heritage Convention and thus opened theway for recognizing the country’s important naturaland cultural sites internationally. The WorldHeritage Committee has since added six SouthAfrican properties to the World Heritage List. Theyare: Greater St. Lucia Wetland Park (1999), RobbenIsland (1999), Fossil Hominid Sites of Sterkfontein,Swartkrans, Kromdraai, and Environs (1999)(known as the Cradle of Humankind), Khahlamba /Drakensberg Park (2000), Mapungubwe CulturalLandscape (2003) and Cape Floral RegionProtected Areas (2004).

147. Since ratifying the Convention, South Africa hasestablished an inter-governmental structure, theSouth African World Heritage ConventionCommittee, to coordinate the administration andimplementation of the Convention. The Committeemeets regularly and has compiled a five-year planfor submitting sites to the World Heritage Centre forinscription on the list of World Heritage sites. Thenational Department of Environmental Affairs andTourism (“DEAT”) is the lead agency for ensuringthat the obligations of the Convention are adheredto, and to that end has initiated consultations andthe drafting of the South African World HeritageConvention Bill, enacted as the World HeritageAct, No. 49 of 1999. In order to fulfill this role, theDEAT:

• Liaises with UNESCO’s World HeritageCentre and the Committee,

• Manages the process of selecting the sites fornomination, and

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• Facilitates the process of developing onappropriate legal framework.

148. According to the South African Constitution, as adualist system, a treaty such as the World HeritageConvention becomes law in South Africa onlywhen it is enacted into national legislation.Specifically incorporating the Convention intoSouth African law ensures that the country canderive maximum benefit from its being a party tothe Convention. Thus, the World HeritageConvention was incorporated into South Africanlegislation.

149. The World Heritage Convention Law is designed tocreate a legal and administrative framework forvarious cultural and natural sites in South Africa tofacilitate the grant of World Heritage Site status bythe World Heritage Committee of UNESCO. In thewords of the then South African Minister for theEnvironment, Mr. Valid Moose, in 1999,underscored that the Law sought to create a legalframework that allows the government to:

• Strengthen where appropriate, the powers ofbodies currently managing areas to be listedas World Heritage sites;

• Establish, where no such institutions exist,new institutions called Authorities to providefor the cultural and environmental protection,and responsible development of WorldHeritage Sites;

• Create, where necessary, a Board to overseethe Authority, and an executive staffcomponent responsible for the day-to-daymanagement of the Authority;

• Provide for the preparation of integratedmanagement plans, as required by the WorldHeritage Convention;

• Provide for proper auditing and financialcontrols and the preparation of annual reportsoutlining the activities of each Authority; and

• Ensure that "state of conservation" reports areprepared as required by the World HeritageConvention.

150.This national law therefore ensures that theprinciples and values of the Convention are givengenuine application over South Africa's potentialand inscribed World Heritage sites. They alsoensures that the national government has the legalmeans to discharge its responsibilities under theConvention and that these sites are developed inways that meet the social and development needsof South Africa’s citizens. The latter emphasis willbring a South African perspective to themanagement of country’s current and potentialsites, and seeks to balance preservation and

conservation with job creation and broadeconomic development.

151. It gives a relevant national authority the powers toliaise extensively with relevant cultural and natureconservation bodies and allows for local and otherinstitutions to act as such Authority. Subject to itbeing empowered by the Minister, an Authoritymay facilitate and manage cultural development,nature conservation and related tourism activitiesat a particular site under its control. Authorities aredesigned to assist and be assisted by agencies of aprovince, regional council or local government inthe discharge of their duties. At the request of aprovince, a regional council or a local government,and with the Minister’s consent, an Authority mayperform functions on contractually agreed terms.The preparation of integrated management plansmust be done in a way that ensures consultationwith and harmonizes the interests of local,provincial and regional authorities.

152. The national legislation is therefore seen as aseminal example of how development, growth andjob creation can be combined with thepreservation of cultural heritage and theconservation of biodiversity. The variousregulations and institutions allowed for in thelegislation are explicitly designed to emphasisesustainable development over constraining formsof protectionism that have sometimes beenperceived as being associated with the Convention.This balance between protection and developmentis particularly important in developing countriessuch as South Africa.

Prof. Ben Boer, Professor in Environmental Law &Associate Dean International, Faculty of Law,University of Sydney


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CONSERVATION OF SPECIES AND HABITATS, INCLUDING TRADEIN AND SUSTAINABLE USE OF ENDANGERED SPECIESChapter 14

RESOURCES

Internet Materials

AGRI-FOOD AND VETERINARY AUTHORITY OF SINGAPORE available at http://www.ava.gov.sg/javascript/main-ie.html

CITES available at http://www.cites.org/

CONVENTION ON MIGRATORY SPECIES available at http://www.wcmc.org.uk/cms/

CRITERIA FOR INCLUSION OF NATURAL PROPERTIES IN THE WORLD HERITAGE LIST available athttp://whc.unesco.org/opgulist.htm#para43

ENDANGERED SPECIES ACT OF SINGAPORE available at http://eelink.net/~asilwildlife/singapore1.pdf

FAOLEX LEGAL DATABASE available at http://faolex.fao.org/faolex/

GUIDE TO THE CONVENTION ON THE CONSERVATION OF MIGRATORY SPECIES OF WILD ANIMALS (JANUARY 2002) available athttp://www.wcmc.org.uk/cms/pdf/CMS_Guide_Jan02_en.pdf

JERRY HARRISON & MARK COLLINS, HARMONIZING THE INFORMATION MANAGEMENT INFRASTRUCTURE FOR BIODIVERSITY RELATED

TREATIES, WORLD CONSERVATION MONITORING CENTRE available at http://www.wcmc.org.uk

KEY DOCUMENTS OF THE RAMSAR CONVENTION available at http://www.ramsar.org/key_guide_nwp_e.htm

LUSAKA AGREEMENT available at www.internationalwildlifelaw.org/lusaka.pdf

NATIONAL POLICY FOR THE CONSERVATION AND MANAGEMENT OF WETLAND RESOURCES, MINISTRY OF NATURAL RESOURCES

(1995) available at http://www.ramsar.org/wurc_policy_uganda.htm

PAUL MAFABI, CASE STUDY 5, NATIONAL WETLANDS PROGRAMME, GOVERNMENT OF UGANDA, REVIEW OF SECTORAL POLICIES

AND LEGISLATION RELATED TO WETLANDS available at http://www.ramsar.org/key_guide_nwp_cs_e.htm

RAMSAR CONVENTION ON WETLANDS available at http://www.ramsar.org/

RAMSAR ‘TOOLKIT’ FOR THE WISE USE OF WETLAND available at http//www.ramsar.org/wurc_handbook3e_cases.htm

REVIEWING LAWS AND INSTITUTIONS TO PROMOTE THE CONSERVATION AND WISE USE OF WETLANDS, RAMSAR ‘TOOLKIT’ FOR THE

WISE USE OF WETLANDS available at http//www.ramsar.org/wurc_handbook3e_cases.htm

SOUTH AFRICAN DEPARTMENT OF ENVIRONMENTAL AFFAIRS AND TOURISM available at www.environment.gov.za

THE RAMSAR CONVENTION MANUAL (3RD ED.) (2003) available at http//www.ramsar.og/lib_manual2003.pdf

UGANDA: NATIONAL ENVIRONMENT (WETLANDS, RIVER BANKS AND LAKE SHORES MANAGEMENT) REGULATIONS 1999 (NO. 3 OF

2000) available at http://www.nemaug.org/wetlandsweb.htm

UNESCO WORLD HERITAGE HOMEPAGE available at http://whc.unesco.org/nwhc/pages/home/pages/homepage.htm

WORLD HERITAGE CONVENTION BILL 1999, SOUTH AFRICA available athttp://www.environment.gov.za/PolLeg/Legislation/WrldHerConvAct/WrldHerConvAct.pdf

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Text Materials

Alexander Kiss & Dinah Shelton, INTERNATIONAL ENVIRONMENTAL LAW, (2nd ed., Transnational Pubs.).

Durwood Zaelke, Donald Kaniaru & Eva Kruzikova, MAKING LAW WORK, ENVIRONMENTAL COMPLIANCE AND SUSTAINABLE

DEVELOPMENT, (Cameroon May, 2005).

GUIDE TO THE CONVENTION ON THE CONSERVATION OF MIGRATORY SPECIES OF WILD ANIMALS, (January 2002).

INTERNATIONAL INSTITUTIONAL ARRANGEMENTS RELATED TO ENVIRONMENT AND SUSTAINABLE DEVELOPMENT, (United NationsGeneral Assembly, 55th session, Report of the Secretary-General, 5 September 2000).

Patricia Birnie & Alan Boyle, INTERNATIONAL LAW AND THE ENVIRONMENT, (2nd ed., Oxford University Press, 2002).

Phillipe Sands, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW, (2nd ed., Cambridge University Press, 2003).

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BIOLOGICAL DIVERSITYChapter 15

15. BIOLOGICAL DIVERSITY

I. Introduction

1. All life on earth is part of one great, interdependentsystem. It interacts with and depends on the non-living components of the planet such asatmosphere, oceans, freshwaters, rocks and soils.

2. Biological diversity is the variety of life in all itsforms, levels and combinations. It represents thevariability within and among all ecosystems,species and genetic material. Biodiversity is thus anattribute to life, in contrast to “biologicalresources,” which are tangible biotic componentsof ecosystems. The breadth of the concept reflectsthe interrelatedness of genes, species andecosystems. Biodiversity forms the web of life ofwhich human beings are an integral part and uponwhich they so fully depend.

3. The term biodiversity covers several interrelatedaspects. Generally, biodiversity is understood interms of the wide variety of plants, animals andmicro organisms. Biodiversity, however, alsoincludes genetic differences within each speciessuch as, between varieties of plants and breeds ofanimals. Chromosomes, genes, and DNA, thebuilding blocks of life, determine the uniqueness ofeach individual and each species. Yet anotheraspect of biodiversity is the variety of ecosystemssuch as those that occur in deserts, forests,wetlands, mountains, lakes, rivers, and agriculturallandscapes. In each ecosystem, living creatures,including humans, form a community, interactingwith one another and with the air, water, and soilaround them.

4. Scientists estimate that the number of species,including insects and microorganisms is about 12million. This diversity of species has emergedthrough genetic mutation and expansion into newniches over the past 4.5 billion years. Only towardsthe end of this period did more complex organismsand further significant specification occur. Theseevents are still to be studied but it appears that theyhave generated the range and dimensions oftoday’s biodiversity. It is thought to be unlikely thatfurther specification will occur, which supports thebelief that biodiversity in present times is at itsmaximum. Therefore, biodiversity must beregarded as a non-renewable resource, whosepotential loss would be irreplaceable and couldnever be reproduced through moderntechnologies. Biodiversity is therefore valuable notonly for the sake of variety itself but also as an

output of a four billion years old process ofevolution. As a result, biodiversity has fine-tunedresilience to physical conditions and the ability toadapt to changing circumstances. It thus acts as abuffer against future dangers to life supportingecosystems.


The Problem

5. The human race had 850 million members when itentered the industrial age sharing the planet with abiodiversity as large as the planet has everpossessed. Today, the world population is nearlyeight times as large; and resource consumption andutilisation of biological resources is far greater.Due to human activities, species and ecosystemsare more threatened than ever before in recordedhistory. The losses are taking place in tropicalforests, which host 50% to 90% of identified lifespecies, but also in rivers, lakes, deserts andtemperate forests, on mountains and islands. (Formarine biodiversity, see chapter 17).

6. While the extinction of species and their habitatsand the destruction of ecosystems are an ecologicaltragedy, they also have profound implications foreconomic and social developments because of thegoods and services they provide. Estimates are thatat least 40% of the world’s economy and 80% ofthe needs of people in developing countries arederived from biological resources. The loss of thediversity of life diminishes the chances for medicaldiscoveries, economic development and adaptiveresponses to challenges such as climate change.

7. “Goods and services” provided by ecosystemsinclude:

• Food, fuel and fibre;• Shelter and building materials;• Purification of air and water; • Detoxification and decomposition of wastes; • Stabilization and moderation of the Earth’s

climate;• Moderation of floods, droughts, temperature

extremes and the forces of wind;• Generation and renewal of soil fertility,

including nutrient cycling;• Pollination of plants, including many crops;• Control of pests and diseases;• Maintenance of genetic resources as key inputs

to crop varieties and livestock breeds,medicines and other products;

• Cultural and aesthetic benefits; and• Ability to adapt to change.

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BIOLOGICAL DIVERSITY Chapter 15

8. The loss of biodiversity often reduces theproductivity of ecosystems, thereby shrinkingnature’s basket of goods and services. It destabilizesecosystems, and weakens their ability to deal withnatural disasters such as floods, droughts andhurricanes, and with human-caused stresses, suchas pollution and climate change. Already, we arespending huge sums in response to flood and stormdamage exacerbated by deforestation. Suchdamage is expected to increase due to globalwarming.

9. The reduction in biodiversity also hurts in otherways. Cultural identity is deeply rooted in thebiological environment. Plants and animals aresymbols of the human’s world, preserved in flags,sculptures and other images that define humansand human societies. Biodiversity represents a veryhigh economic and social value for localcommunities and indigenous peoples, whodepend on their environment for food, medicinesand shelter. Indigenous cultures are often deeplyrooted in the belief that the spiritual world residesin nature. This worldview implies a deep respectfor the natural world and provides guidance on itsuse. Thus, degradation of the environment andnational biodiversity severely threatens thelifestyles and cultural heritage of indigenous andlocal communities.

10. Early international treaties addressed specificaspects and components of biodiversity. At theglobal level, the Convention concerning theProtection of the World Cultural and NaturalHeritage, 1972 (“WHC”) covers internationallyimportant natural and cultural sites. The specificthreat of trade in endangered species is addressedby the 1973 Convention on International Trade inEndangered Species of Wild Fauna and Flora. Aspecific ecosystem type, namely wetlands, isprotected through the 1971 Convention onWetlands of International Importance Especially asWaterfowl Habitat (“Ramsar Convention”), and acategory of species, migratory species, is protectedthrough the 1979 Convention on the Conservationof Migratory Species of Wild Animals . In addition,there are various regional conventions on theconservation of aspects of nature and naturalresources such as the 1979 Convention on theConservation of European Wildlife and NaturalHabitats; the 1976 Convention on theConservation of Nature in the South Pacific; the1968 African Convention on the Conservation ofNature and Natural Resources (since revised in2003); the 1982 Protocol concerningMediterranean Specially Protected Areas; the 1985ASEAN Agreement on the Conservation of Natureand Natural Resources; and the 1986 Conventionon the Protection of the Natural Resources and

Environment of the South Pacific. However, in thelate 1980s and early 1990s, it became apparent,that all these conventions together could notensure global conservation of biodiversity. Theirsectoral and regional nature resulted inconsiderable gaps in coverage. A morecomprehensive and global approach was deemednecessary to address the continuing loss ofbiological diversity. These concerns led to theadoption of the Convention on BiologicalDiversity. This Manual has, in several chapters,discussed different aspects of the above namedinstruments, for example, chapters 14 and 17.

11. This chapter will first deal with the framework ofthe Convention on Biological Diversity includingaccess to genetic resources and benefit sharing,and subsequently, discuss the interrelationbetween the Convention and other relevantinternational legal regimes, such as the Agreementon Trade Related Aspects of Intellectual PropertyRights of the World Trade Organization.

1. The Convention on Biological Diversity

12. The Convention on Biological Diversity (“CBD” or“Convention”) was adopted in 1992, andsubsequently opened for signature in Rio de Janeiroduring the 1992 United Nations Conference onEnvironment and Development. The adoption ofthe Convention represented a major breakthroughafter lengthy negotiations over more than threeyears, under the auspices of UNEP whoseGoverning Council initiated the process in 1989,building upon preparatory work undertaken byIUCN/World Conservation Union.

13. During the negotiations, developing countriesenvisaged the proposed convention as anopportunity to gain access to technology, financialresources and markets and to promote sustainableeconomic development. They proposed theestablishment of a special system of intellectualproperty rights, a mechanism for compensatingthem for access to and the utilization of geneticresources provided by their countries, andmechanisms that would facilitate their access tobiotechnology developed through the utilization ofthese genetic resources. A group of industrialcountries was strongly opposed to many of theseproposals. They argued that loosening intellectualproperty rights would threaten and constrain thedevelopment of biotechnology and undermine theprotection of innovations. The final text of theConvention included many of the proposals madeby the developing countries but omitted severalsubstantive proposals on which no agreementcould be reached.

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14. Issues that could not be agreed upon included theprecautionary principle, which is now onlyreferred to in the Preamble, a consolidatedintellectual property rights regime, liability andredress for damage to biodiversity and acompilation of global lists of protected areas andspecies.

15. The Convention is the first international treaty totake a holistic, ecosystem-based approach to theconservation and sustainable use of biologicaldiversity. It is a framework instrument laying downbroad goals, key objectives and general principleswhich are to be operationalized through concretemeasures and actions at the national level on thebasis of guidance, inter alia, provided by thedecisions of the Conference of the Parties (“COP”)to the Convention. The Preamble sets out theethical and socio-economic underpinnings of theConvention. These include the intrinsic, ecologicaland anthropocentric value of biological diversityand its components; the status of biologicaldiversity as a common concern of humankind; thecurrent rate of biodiversity loss due to humanactivities; and the imperatives of intra- and inter-generational equity.

16. The Convention stipulates in article 1 its three mainobjectives:

• The conservation of biological diversity;• The sustainable use of the components of

biological diversity; and • The fair and equitable sharing of the benefits

arising out of the utilization of geneticresources, including by appropriate access togenetic resources and by appropriate transfer ofrelevant technologies, taking into account allrights over those resources and to technologies,and by appropriate funding.

17. The second and third objectives are a cleardeparture from preceding internationalbiodiversity-related agreements, which werepredominantly concerned with conservation. Animportant aspect of the negotiation of theConvention was the realization that biodiversityrich countries needed to exploit their biologicalresources for development purposes as well asbenefit from the commercial utilization of theirgenetic resources. Articles 6 to 21 of theConvention set goals, establish general principles,and define measures and mechanisms necessaryfor the realization of the three objectives.

Major Components

a) General Principles and Concepts

18. The Convention establishes a number of generalprinciples in its preamble and operative provisions.Chapter 3 above discusses some of the generalprinciples outlined below. These principles arecalculated to guide and inform action at thenational and international levels.

19. Both the preamble and article 3 of the Conventionaffirm the sovereign right of states over their ownbiological resources. This provision was a directreaction to the attempt by developed countries tosubsume biodiversity under the common heritageof mankind principle which had been applied tomineral resources in the deep seabed beyondnational jurisdiction under the 1982 UnitedNations Convention on the Law of the Sea(“UNCLOS”). This would have had seriousimplications regarding the ownership of biologicalresources within the national jurisdiction of states.However, while affirming national sovereignty overresources, the preamble also underlines theresponsibility of states to conserve and sustainablyuse their biological diversity.

20. Article 3 of the Convention provides that stateshave the responsibility to ensure that activitieswithin their jurisdiction or control do not causedamage to the environment of other states or ofareas beyond the limits of national jurisdiction.The general principle of international law thatstates are under an obligation to protect, withintheir own territory, the rights of other states toterritorial integrity and inviolability has beenprogressively extended over the years through statepractice and judicial decisions to covertransboundary environmental harm. The generalobligation upon states with respect totransboundary environmental harm was reaffirmedin principle 2 of the 1992 Rio Declaration where itis asserted that “States have ... the responsibility toensure that activities within their jurisdiction orcontrol do not cause damage to the environment ofother states or of areas beyond the limits of nationaljurisdiction.” It is this principle that has beenrestated in article 3 of the Convention. By virtue ofthis provision, the international responsibility of astate will consequently be engaged in those caseswhere activities within its jurisdiction or controlcauses damage to the biological diversity ofanother state or of areas beyond the limits ofnational jurisdiction.

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21. The preamble affirms that the conservation ofbiological diversity is a “common concern ofhumankind.” In contrast to the “common heritageof mankind” doctrine, this concept has lessimplications. States have sovereign rights over theirbiological resources. However, given the universalvalue of biological diversity, the global communityhas certain responsibilities regarding itsstewardship.

22. The preamble states that the contracting parties tothe Convention are determined to conserve andsustainably use biological diversity for the benefitof present and future generations. The principle ofinter-generational equity was first authoritativelyarticulated in principle 2 of the 1972 StockholmDeclaration and has been reaffirmed in principle 3of the 1992 Rio Declaration. Equity within andbetween generations in the use of biologicalresources is an important underlying postulate ofConvention and is implicit in a number ofprovisions dealing with the rights of local andindigenous communities, access to geneticresources and benefit-sharing, and conservationand sustainable use of biological diversity.

23. There are considerable scientific uncertaintiesregarding environmental consequences of humanproduction and consumption activities. Thisuncertainty arises because of gaps in scientificknowledge with respect to the nature and thelinkages within the ecosystem and the interplaybetween ecological factors and socio-economicactivities. The precautionary principle articulatedin article 15 of the 1992 Rio Declaration demandsaction in cases of significant risk even wherecomplete scientific evidence regarding probableenvironmental consequences may be lacking. Thepreamble to Convention consequently providesthat “...where there is a threat of significantreduction or loss of biological diversity, lack of fullscientific certainty should not be used as a reasonfor postponing measures to avoid or minimize sucha threat.”

b) Measures for Conservation and Sustainable Use

24. In article 6, the Convention provides that partiesshall develop national strategies, plans orprogrammes for the conservation and sustainableuse of biological diversity and endeavour tointegrate the conservation and sustainable use ofbiological diversity into relevant sectoral or cross-sectoral plans, programmes and policies. NationalBiodiversity Strategies and Action Plans(“NBSAPS”) have been developed by over 100countries since the adoption of the Convention andhave become the primary tool at the national level

for its implementation. Indeed, a central strategicgoal of the Strategic Plan of the Conventionadopted by the COP at its sixth meeting is to ensurethat NBSAPS and the integration of biodiversityconcerns into relevant sectors serve as an effectiveframework for the implementation of the objectivesof Convention.

25. Identification of components of biological diversityand monitoring their conservation status is animportant first step in the establishment ofmeasures for conservation and sustainable use.Article 7 of the Convention, therefore, requiresparties to identify components of biodiversityimportant for conservation and sustainable use andto monitor the components so identified, payingparticular attention to those requiring urgentconservation measures and those with potential forsustainable use. In addition, parties are required toidentify and monitor processes and activities,which may have significant adverse impacts onconservation and sustainable use of biodiversity.

26. Annex I to the Convention contains indicative listsfor the identification and monitoring of ecosystems,species, communities and genes and genomes ofsocial, scientific and economic importance.

27. Articles 8 and 9 set out the main conservationcommitments under the Convention. Parties arerequired to meet specific goals relating to in-situand ex-situ conservation. “In-situ conservation” isdefined in article 2 as the conservation ofecosystems and natural habitats and themaintenance and recovery of viable populations ofspecies in their natural surroundings. The in-situconservation commitments outlined in article 8include, among others, the following:

• The establishment of a system of protectedareas;

• The development of guidelines for theselection, establishment and management ofprotected areas;

• The regulation or management of biologicalresources important for the conservation ofbiological diversity within or outside protectedareas, with a view to ensuring theirconservation and sustainable use;

• The promotion of the protection of ecosystems,natural habitats and the maintenance of viablepopulations of species in natural surroundings;

• Promotion of environmentally sound andsustainable development in areas adjacent toprotected areas with a view to furthering theprotection of these areas;

• The rehabilitation and restoration of degradedecosystems and the recovery of threatenedspecies;

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• Management and control of risks associatedwith living modified organisms resulting frombiotechnology;

• Prevention, control and eradication of alieninvasive species;

• The respect, preservation and maintenance oftraditional biodiversity-related knowledge;and,

• The development of appropriate legislative andregulatory frameworks.

28. Ex-situ conservation is defined as the conservationof components of biological diversity outside theirnatural habitats. Article 9 specifies the main ex-situconservation commitments, including:

• Adoption of measures for ex-situ conservationof components of biological diversity,preferably in the country of origin of suchcomponents;

• Establishment and maintenance of facilities forex-situ conservation of and research on plants,animals and microorganisms;

• Adoption of measures for the recovery andrehabilitation of threatened species and fortheir reintroduction into their natural habitats;

• Regulation and management of collection ofbiological resources from natural habitats forex-situ conservation; and,

• Cooperation in the provision of financial andother support for ex-situ conservation.

29. Sustainable use is defined in article 2 of theConvention as “...the use of components ofbiological diversity in a way and at a rate that doesnot lead to the long-term decline of biologicaldiversity, thereby maintaining its potential to meetthe needs and aspirations of present and futuregenerations.” The main sustainable usecommitments are outlined in article 10, including:

• Integrating consideration of the conservationand sustainable use of biological resources intonational decision-making;

• Adopting measures relating to the use ofbiological resources to avoid or minimizeadverse impacts on biological diversity;

• Protecting and encouraging customary use ofbiological resources in accordance withtraditional cultural practices that arecompatible with conservation or sustainableuse requirements;

• Supporting local populations in developingand implementing remedial action in degradedareas where biological diversity has beenreduced; and

• Encouraging cooperation betweengovernmental authorities and its private sectorin developing methods for sustainable use ofbiological resources.

c) Access to Genetic Resources and Benefit Sharing

30. The third objective of the Convention, the fair andequitable sharing of benefits arising from the use ofgenetic resources, is of particular importance todeveloping countries. They hold most of theworld’s biological diversity but feel that, in general,do not obtain a fair share of the benefits derivedfrom the use of their resources for the developmentof products such a high-yielding crop varieties,pharmaceuticals and cosmetics. Such a systemreduces the incentive for the world’s biologicallyricher but economically poorer countries toconserve and sustainably use their resources for theultimate benefit of mankind.

31. The issue of Access and Benefit-Sharing (“ABS”)was one of the central themes during thenegotiations of the Convention whose substantiveprovisions on ABS are contained in article 15(access to genetic resources); article 16, paragraph3 (access to and transfer of technology that makesuse of genetic resources); and article 19, paragraph1 (participation on biotechnological research ongenetic resources) and paragraph 2 (access toresults and benefits from biotechnologies). Theseprovisions address both providers and users ofgenetic resources and also outline the basic goalsand elements of an ABS regime under theConvention.

32. Article 15 of the Convention addresses the termsand conditions for access to genetic resources andbenefit sharing. The provisions of the Conventionapply only to genetic resources, which areprovided by parties that are countries of origin ofsuch resources or by parties that have acquired thegenetic resources in accordance with theConvention. In effect, these provisions do notapply to genetic resources acquired prior to theentry into force of the Convention.

33. Article 15 recognizes the sovereign rights of statesover their natural resources and provides that theauthority to determine access to genetic resourcesrests with the national governments and is subjectto national legislation. It also establishes a numberof principles and the conditions governing accessto genetic resources and benefit-sharing. These are:

• Parties shall endeavour to create conditions tofacilitate access to genetic resources and shallnot impose restrictions that run counter to theobjectives of the Convention;

• Access, where granted, shall be on mutuallyagreed terms;

• Access to genetic resources shall be subject tothe prior informed consent of the contractingparty providing such resources;

• Scientific research on genetic resources

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provided by other contracting parties shall beundertaken with the full participation of suchparties and, where possible, in the territory ofsuch parties; and

• Parties shall take legislative, administrative orpolicy measures to ensure the fair andequitable sharing of the results of research anddevelopment and the benefits arising from thecommercial and other utilization of geneticresources with the contracting party providingsuch resources; and benefit-sharing shall be onmutually agreed terms.

34. Article 19 of the Convention provides forparticipation in biotechnological research bycountries providing genetic resources and thesharing of benefits arising from the utilization ofgenetic resources in such research anddevelopment. It also contemplates the negotiationof and adoption of a protocol that sets outappropriate procedures, including, in particular,advance informed agreement in the field of safetransfer, handling and use of any Living ModifiedOrganisms (“LMOs”) resulting from biotechnologythat may have adverse effect on the conservationand sustainable use of biological diversity. TheCartagena Protocol on Biosafety was subsequentlyadopted in January 2000.

35. Although the Convention entered into force in1993, it was not until 1999 that work began inearnest to further develop and operationalize itsgeneral principles and broad objectives. COP-5established the “Ad Hoc Open-Ended WorkingGroup on Access and Benefit-Sharing” to developguidelines and other approaches concerningaccess to genetic resources and benefit-sharing.The “Bonn Guidelines on Access to GeneticResources and Fair and Equitable Sharing of theBenefits arising out of their Utilization” (“BonnGuidelines”) were adopted by COP-6 in 2002.The policy choice made by COP-6 to developinternational guidelines for ABS was a pragmaticstep. Legislative and policy developments in mostcountries are largely in their embryonic stages.International guidelines would, therefore, greatlyassist governments in developing effective nationaland regional ABS regimes. Also, the politicalsensitivity of the issue and the lack of politicalconsensus on a number of outstanding items hadan influence on any global ambition for thedevelopment of a legally binding instrument at thatstage. It should be noted, however, that thedevelopment of a number of multilateralenvironmental agreements has been preceded bythe adoption of international non-binding regimes.

36. Indeed, COP-7 mandated the Working Group toelaborate and negotiate an international regime on

access to genetic resources and benefit-sharingwith the aim of adopting an instrument/instrumentsto effectively implement the provisions in articles15 and 8(j) of the Convention and its threeobjectives.

The Bonn Guidelines on Access to Genetic Resourcesand Fair and Equitable Sharing of the Benefits arising

out of their Utilization

37. The 2002 Bonn Guidelines establish detailedprocedures to facilitate access to genetic resourcesand the fair and equitable sharing of benefits on thebasis of the ‘prior informed consent’ of the countryproviding genetic resources and on ‘mutuallyagreed terms’. The Guidelines provide guidance toparties in the development of benefit sharingregimes and arrangements while promotingcapacity building, transfer of technology and theprovision of financial resources.

38. Although compliance with the Guidelines isvoluntary, they provide the first widely acceptedcriteria for national licensing of access to geneticresources and the sharing of benefits arising fromthe utilization of genetic resources. The Guidelinesshould assist parties, governments and otherstakeholders in developing an overall access andbenefit-sharing strategy, and in identifying the stepsinvolved in the process of obtaining access togenetic resources and benefit-sharing. Morespecifically, the Guidelines are meant to assistparties, governments and other stakeholders whenestablishing legislative, administrative or policymeasures on access and benefit-sharing and/orwhen negotiating contractual arrangements foraccess and benefit-sharing. The Guidelines arestructured as follows:

• Section I on General Provisions covers keyfeatures, use of terms, scope, relationship withrelevant international regimes and theobjectives of the guidelines;

• Section II deals with the role of the nationalfocal point and competent nationalauthority(ies), and responsibilities of partiesand stakeholders that are users and providers ofgenetic resources;

• Section III addresses the participation ofstakeholders in the development andimplementation of access and benefit-sharingarrangements;

• Section IV covers steps in the process of accessand benefit-sharing, including prior informedconsent and mutually agreed terms;

• Section V covers other provisions, such asincentives, accountability, monitoring andreporting, verification, dispute settlement andremedies;

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• Appendix I contains suggested elements forMaterial Transfer Agreements; and

• Appendix II provides an illustrative list ofmonetary and non-monetary benefits.

39. A few issues covered by the Guidelines are stilloutstanding and may require further clarification.They include the use of terms, the scope ofguidelines with respect to products and derivativesand stakeholder involvement.

40. Some of the key features of the Guidelines that willcontribute towards the effective implementation byparties, governments and other stakeholders of therelevant provisions of the Convention related toaccess to genetic resources and benefit-sharinginclude:

• The definition of the roles and responsibilitiesof national authorities and of users andproviders in the implementation of ABSarrangements: for example, competentnational authorities are responsible for grantingaccess in accordance with national legislative,administrative or policy measures and foradvising on the requirements for obtainingprior informed consent.

• The participation of stakeholders in thedevelopment and implementation of ABSarrangements: the Guidelines recognize thatthe involvement of relevant stakeholders isessential to ensure the adequate developmentand implementation of access and benefit-sharing arrangements. However, in view of thediversity of stakeholders and their diverginginterests, the nature and level of involvement ofdifferent stakeholders remains an issue that willrequire further clarification and developmentat the national level.

• The identification of steps in the access andbenefit-sharing process: the guidelines re-emphasize the obligation to seek PriorInformed Consent (“PIC”) established underarticle 15 of the Convention. In addition,however, the Guidelines have endeavoured toclarify and define the necessary steps in theABS process that would facilitate compliancewith this basic obligation, and identified thebasic principles and elements of PIC, thenational entities granting PIC, the proceduresfor obtaining PIC, and other elements of PIC tobe taken into consideration when establishingaccess and benefit-sharing arrangements.

• The identification of basic requirements formutually agreed terms: the Guidelines describethe basic requirements and elements ofmutually agreed terms and benefit-sharing, tobe considered as guiding parameters in

contractual agreements and benefit-sharingarrangements.

• The identification and establishment ofmeasures for the implementation of theGuidelines and ABS arrangements: theGuidelines address the issue of the type ofincentives necessary to ensure effectiveimplementation by parties, Governments andother stakeholders. Other issues of particularconcern to provider countries with respect toimplementation, such as mechanisms topromote the accountability of all stakeholders,national monitoring and reporting of accessand benefit-sharing arrangements, means forverification of compliance with the relevantprovisions of the Convention, the settlement ofdisputes and remedies in cases of violation ofnational measures implementing the relevantprovisions of the Convention are alsoaddressed.

d) Access to and Transfer of Technology

41. Access to and transfer of technology is consideredin the Convention, as is the case with other post-Rio multilateral environmental agreements, as oneof the critical elements for its effectiveimplementation. The Convention expresslyrecognizes the role that technology transfer andcooperation can play in the realization of its threeobjectives and is conceived as part of the positivemeasures to facilitate the effective implementationof the Convention. Issues relating to technologytransfer and cooperation are addressed in articles16, 18 and 19 of the Convention. In addition,issues regarding training and research consideredso essential to establishing national capacities toabsorb technologies are addressed in article 12 ofthe Convention.

42. The basic obligation of all parties regarding accessto and transfer of technology is set out in article16(1), which provides that each contracting party“...undertakes…to provide and/or facilitate accessfor and transfer to other Contracting Parties oftechnologies that are relevant to the conservationand sustainable use of biological diversity or makeuse of genetic resources and do not causesignificant damage to the environment.” Theobligation established has a number of importantaspects. First, its scope is limited to the categoriesof technologies specified: that is, technologiesrelevant to the conservation and sustainable use ofbiological diversity or that make use of geneticresources. Second, the wording of the paragraphprovides flexibility in the manner in which partiescan implement it depending on each concretesituation. Parties can “provide and/or facilitate”

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access for and transfer of technologies to otherparties. This is a necessary and important latitudesince for technologies subject to intellectualproperty rights, parties would have very limitedleverage on the private sector to affect transfer. Inthis regard, therefore, parties can only facilitatetransfers through such measures as providingappropriate incentives to the private sector. On theother hand, for technologies in the public domain,a party could directly provide access for andtransfer to another party.

43. There are a number of other conditions regardingtechnology transfer established under article 16.First, under article 16(2), “Access to and transfer oftechnology...to developing countries shall beprovided and/or facilitated under fair and mostfavourable terms, including on concessional andpreferential terms where mutually agreed, and,where necessary, in accordance with the financialmechanism established by Articles 20 and 21...” Itwould appear that the Convention requiresdeveloped country parties to ensure that the termsunder which developing country parties’ accesstechnologies are fair and most favourable. Thiswould seem to suggest that access to and transfer oftechnology would be on terms other than thoseestablished by the international technology market.How this is to be ensured by parties in cases ofproprietary technology, that is, technologiessubject to intellectual property rights, is an issuethat will need to be further addressed by the COP.However, the paragraph makes an importantlinkage with the Convention’s financialmechanism: it is clear that the resources availablethrough the mechanism could be used to facilitateaccess to and transfer of proprietary technology todeveloping countries.

44. Second, in the case of technology subject topatents and other intellectual property rights,access and transfer shall be provided on terms thatrecognize and are consistent with the adequateand effective protection of intellectual propertyrights (article 16(2)). In effect, access to and transferof proprietary technology is made subject to theexistence of adequate and effective protection ofintellectual property rights. This provision wouldseem to require that recipient countries have inplace adequate and effective domestic intellectualproperty rights regimes. To what extent strongnational intellectual property rights regimesfacilitate the transfer of technology is an issue thatis currently subject to intense international debate.

45. Third, parties are required to “...take legislative,administrative or policy measures...with the aimthat Contracting Parties, in particular those that are

developing countries, which provide geneticresources, are provided access to and transfer oftechnology which makes use of those resources, onmutually agreed terms, including technologyprotected by patents and other intellectual propertyrights, where necessary, through the provisions ofArticles 20 and 21 and in accordance withinternational law (article 16(3))...” The obligation isimposed on user-countries to establish an enablinglegal and policy environment for access to andtransfer of such technology to countries, whichprovide genetic resources. This is important toensure the effective implementation of the thirdobjective of the Convention relating to the fair andequitable sharing of benefits arising from theutilization of genetic resources.

46. Last, parties are required to “...take legislative,administrative or policy measures...with the aimthat the private sector facilitates access to, jointdevelopment and transfer of technology...for thebenefit of both governmental institutions and theprivate sector of developing countries...” (article16(4)). The vast amount of global technology isowned by the private sector of developedcountries. Developed country parties are thereforerequired to play a facilitative role throughlegislative and policy development that would actas an incentive to their private sector actors toprovide access to and transfer of technology todeveloping countries.

47. There are a number of other provisions in theConvention that are relevant to technology transfer.Article 18 on technical and scientific cooperationrequires parties to promote internationalcooperation in the field of conservation andsustainable use of biological diversity and todevelop methods of cooperation for thedevelopment and use of technologies, includingindigenous and traditional technologies and topromote the establishment of joint researchprogrammes and joint ventures for thedevelopment of technologies relevant to theobjectives of the Convention. Article 19 onbiotechnology requires parties to establish“...legislative, administrative or policy measures toprovide for the effective participation inbiotechnological research activities by theContracting Parties, especially developingcountries, which provide the genetic resources forsuch research...” and to “...take practicablemeasures to promote and advance priority accesson a fair and equitable basis by Contracting Parties,especially developing countries, to the results andbenefits arising from biotechnologies based upongenetic resources provided...”

e) The Role of Indigenous and Local Communities

48. The preamble to the Convention recognizes theclose and traditional dependence of manyindigenous and local communities embodyingtraditional lifestyles on biological resources and theneed for fair and equitable sharing of benefitsarising from the use of traditional biodiversity-related knowledge, innovations and practices. Theprotection, preservation and maintenance oftraditional biodiversity-related knowledge and thesharing of benefits arising from the use of suchknowledge is further elaborated upon in article 8(j)of the Convention. It provides that:

1992 Convention on Biological Diversity(Article 8(j))

“Each Contracting party shall: (...)(j) subject to its legislation, respect, preserve andmaintain knowledge, innovations and practices ofindigenous and local communities embodyingtraditional lifestyles relevant for the conservationand sustainable use of biological diversity andpromote their wider application with the approvaland involvement of the holders of such knowledge,innovation and practices and encourage theequitable sharing of the benefits arising from theutilization of such knowledge, innovations andpractices...”

49. In order to address the implementation of thisarticle, COP-4 established the Ad Hoc Open-Ended Inter-session Working Group (“WorkingGroup”) on article 8(j) and related provisions of theConvention. The mandate of the Working Groupis to provide the COP with advice on theapplication and development of legal and otherappropriate forms of protection of traditionalbiodiversity-related knowledge, innovations andpractices. A programme of work on article 8(j) andrelated provisions of the Convention wassubsequently adopted by COP-5. The programmeof work comprises several elements: participatorymechanisms; status and trends in the protection oftraditional biodiversity-related knowledge,innovations and practices; traditional culturalpractices for conservation and sustainable use;equitable sharing of benefits; exchange anddissemination of information; monitoring; andlegal issues. For each element a range of tasks andactivities to be undertaken by parties, theSecretariat and the Working Group are identified.Among the tasks the Working Group is currentlyaddressing are guidelines for the conduct ofcultural, environmental and social impactassessments regarding proposed developments onsacred sites and on lands or waters occupied orused by indigenous and local communities;

development of sui generis systems for theprotection of traditional knowledge, innovationsand practices; and the development ofmechanisms to ensure full and effectiveparticipation of indigenous and local communitiesin decision-making and implementation.

50. The COP has taken a number of decisions in thisregard. COP-6 adopted the recommendations ofthe Working Group on cultural, environmental andsocial impact assessments regarding projects likelyto impact on sacred sites, lands and waters ofindigenous and local communities. The COP hasfurther taken decisions on the participation ofindigenous and local communities in theoperations of the Convention. These includeencouraging parties to include representatives ofindigenous and local communities in theirdelegations to meetings organized under theConvention. In order to ensure compliance withthe Prior Informed Consent procedure ofindigenous and local communities and toguarantee benefit-sharing, the COP has urgedparties and governments to encourage thedisclosure of the origin of traditional knowledge,innovations and practices in applications forintellectual property rights, where the subjectmatter of the application concerns or makes use ofsuch knowledge in its development.

51. The seventh meeting of the Conference of theParties, held in Kuala Lumpur, Malaysia, inFebruary 2004, adopted a series of decisionspertaining to the programme of work on article 8(j)and related provisions, on the respect, preservationand maintenance of knowledge, innovation andpractices of indigenous and local communities.One of the main achievements of COP-7 was theadoption (decision VII/16 F) of the Akwé KonVoluntary Guidelines for the Conduct of Cultural,Environmental and Social Impact Assessmentregarding Developments Proposed to take placeon, or which are likely to Impact on, Sacred Sitesand on Lands and Waters Traditionally Occupiedor Used by Indigenous and Local Communities.The Guidelines, which were named with aMohawk term meaning "everything in creation",provide a collaborative framework ensuring the fullinvolvement of indigenous and local communitiesin the assessment of cultural, environmental andsocial impact of proposed developments on sacredsites and on lands and waters they havetraditionally occupied. Moreover, guidance isprovided on how to take into account traditionalknowledge, innovations and practices as part of theimpact-assessment processes and promote the useof appropriate technologies. The Guidelinessuggest a ten-step process for impact assessment ofproposed development.

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52. Article 10(c) further requires states to “protect andencourage customary use of biological resources inaccordance with traditional cultural practices thatare compatible with conservation or sustainableuse requirements.”

f) International Cooperation and the FinancialMechanism

53. Given the wide-ranging nature of the Convention,there are a number of provisions, which seek todeal with implementation through internationalcooperation. As such, provisions are made forinternational cooperation in the field of researchand training, particularly taking note of the needs ofdeveloping countries; and public education andawareness raising (articles 12(a) and 13(b)).Furthermore, articles 17 and 18 deal withinformation exchange relevant to conservation andsustainable use of biodiversity and improvedinternational technical and scientific cooperation.

54. Article 18(3) provides for the establishment of aClearing-House Mechanism (“CHM”) to facilitatetechnical and scientific cooperation. The secondmeeting of the COP decided that the CHM shouldstart with a pilot phase. A fully operational CHMhas since been established and operates as a toolfor information exchange and technical andscientific cooperation.

55. Expertise in managing information and technologyvaries enormously from country to country. TheCHM should ensure that all governments haveaccess to the information and technologies theyneed for their work on biodiversity. The mission ofthe Clearing House is to:

• Promote and facilitate technical and scientificcooperation, within and between countries;

• Develop a global mechanism for exchangingand integrating information on biodiversity;and,

• Develop the necessary human andtechnological network.

56. The clearing-house is coordinated by the ExecutiveSecretary of the Secretariat of the Convention andoverseen and guided by an Informal AdvisoryCommittee (“IAC”) set up by the parties to theConvention. The committee works in a transparentand cooperative manner to promote awareness ofthe multiple needs and concerns facing variouscommunities, countries and regions.

57. In addition, a network of national focal points forthe mechanism has been established to address

matters relating to technical and scientificcooperation. The parties have recently emphasizedthe need to strengthen the role of these focal points.Building a network of Non-GovernmentalOrganizations (“NGOs”) and other institutionsworking on biodiversity could contribute to thisgoal. Establishing national, regional, sub-regionaland thematic clearing-house focal points forspecific topics could also help.

58. For the first time in a global conservationagreement, a legal relationship is created betweenthe conservation and sustainable use obligations ofdeveloping countries and the financial obligationsof developed countries. Developed country partiesare required to provide new and additionalfinancial resources to enable developing countryparties to meet the full incremental costs to them ofimplementing their obligations under theConvention (article 20). Such financial resourcesare to be provided largely but not exclusivelythrough a financial mechanism established underarticle 21 of the Convention. Developed countryparties may also provide resources throughbilateral and other multilateral channels.

59. The relationship between developing countryimplementing obligations and developed countryfinancial and technology transfer obligations isunderlined by article 20(4) which states that “theextent to which developing country Parties willeffectively implement their commitments underthis Convention will depend on the effectiveimplementation by developed country Parties oftheir commitments under this Convention relatedto financial resources and transfer of technologyand will take fully into account the fact thateconomic and social development and eradicationof poverty are the first and overriding priorities ofdeveloping country parties. The funding is toenable developing countries to cover theincremental costs associated with measures toimplement the Convention’s obligations. Suchcosts have to be agreed upon between thedeveloping country concerned and the financialmechanism established under article 21. The COPhas designated the Global Environment Facility(“GEF”) as the interim financial mechanism for theConvention. (For a discussion on GEF see Chapter6). The financial mechanism operates under theauthority and guidance of and is accountable to theCOP. The COP determines the policy, strategy,programme priorities and criteria relating to accessto and utilization of financial resources under themechanism. It provides regular guidance to thefinancial mechanism on these matters. In thisregard, financial resources and the financial

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mechanism are standing items on the agenda of theCOP. For the above purposes, a Memorandum ofUnderstanding was concluded between the CBDSecretariat and the GEF Council in 1996.

g) Institutional Arrangements

60. In order to facilitate the implementation of theobjectives of the Convention, several bodies havebeen established under it.

61. The Conference of the Parties is the decision makingbody of the Convention. It is in charge of policydevelopment, provides guidance to parties on theimplementation of the Convention and reviews itsimplementation (article 23).

62. The Subsidiary Body on Scientific, Technical andTechnological Advice (“SBSTTA”) has beenestablished to provide scientific and technicaladvice to the COP. It is mandated to: providescientific and technical assessments of the status ofbiological diversity, prepare scientific and technicalassessment of the effects of types of measures takenin accordance with the Convention, identifyappropriate technologies and know-how relatingto the conservation and sustainable use ofbiological diversity, provide advice on scientificprogrammes and international cooperation inresearch and development related to conservationand sustainable use of biological diversity, andrespond to scientific, technical and technologicalquestions that may be raised by the COP and itssubsidiary bodies (article 25).

63. A Secretariat provides administrative support to theConvention. Its functions include servicingmeetings organized under the Convention,reporting to the COP on the execution of itsfunctions; coordination with other relevantinternational bodies, and any other functionsassigned to it by any protocol or by the COP.(article 24) At its first meeting, the COP designatedthe United Nations Environment Programme(“UNEP”) to carry out the functions of theSecretariat of the Convention. The Secretariat of theConvention is hosted by the Government ofCanada in Montreal.

h) Compliance, Liability and Dispute Settlement

64. To monitor compliance with Conventionobligations, article 26 requires parties to submit tothe COP, on a regular basis, national reports onmeasures taken to implement the provisions of theConvention and their effectiveness in meeting itsobjectives. The COP provides guidance regardingreporting intervals and the nature, structure andcontent of the reports. The Convention does not

have a non-compliance procedure. It is, however,possible for the COP to assess the extent ofcompliance by parties on the basis of the nationalreports.

65. Article 27 lays down the procedure relating tosettlement of disputes concerning the interpretationor application of the Convention. Parties are urgedto seek a solution to such disputes throughnegotiation or mediation by a third party. For adispute not resolved through negotiation ormediation, parties can either resort to arbitration asprovided for in part I of Annex II to the Conventionor submit the dispute to the International Court ofJustice (“ICJ”). In this latter regard, parties arerequired at the time of ratification or accession toindicate either arbitration or the ICJ as acompulsory means of dispute settlement.

66. The question of liability and redress for damage tobiological diversity was one of the critical issuesbefore the negotiators of the Convention. Therewas, however, no consensus during thenegotiations on the nature of a liability and redressregime under the Convention. Decision on thisissue was therefore postponed to a later date.Article 14(2) of the Convention consequentlyprovides that the COP “...shall examine, on thebasis of studies to be carried out, the issue ofliability and redress, including restoration andcompensation, for damage to biological diversity,except where such liability is a purely internalmatter.” A number of studies have been undertakenso far under the authority of the COP and a legaland technical expert group is envisaged to furtherexplore this issue.

i) Relationship with other International Agreements

67. As regards the legal relationship with otherinternational agreements, article 22 of theConvention provides that the Convention “...shallnot affect the rights and obligations of anyContracting Party deriving from any existinginternational agreement, except where the exerciseof those rights and obligations would cause aserious damage or threat to biological diversity. Inaddition, parties are required to “...implement thisConvention with respect to the marineenvironment consistently with the rights andobligations of States under the law of the sea.”

68. In relation to access to genetic resources andbenefit-sharing, the provisions of the Conventioninterrelate with the FAO International Treaty onPlant Genetic Resources for Food and Agriculture.As stated in its preamble, the International Treatyhas been negotiated in harmony with theConvention. Article 19 of the International Treaty

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requires its Governing Body to establish andmaintain cooperation with the COP to the CBD; totake note of relevant decisions of the COP; and toinform the COP of matters regarding theimplementation of the Treaty.

69. The provisions of the CBD on technology transferand benefit sharing touch on issues relating toIntellectual Property Rights (“IPR”), and thereforecreate important inter-linkages with the WorldTrade Organization’s Agreement on Trade-RelatedAspects of Intellectual Property Rights (“TRIPsAgreement”) and the international agreementsadministered by the World Intellectual PropertyOrganization (“WIPO”). Indeed, article 16(3) of theConvention expressly recognizes that patents andother intellectual property rights may have aninfluence on its implementation and calls onparties to cooperate in order to ensure that suchrights are supportive of and do not run counter tothe objectives of the Convention. The COP hasinvited the WTO to explore the interrelationshipbetween the Convention and the TRIPs Agreement.

70. The Conference of the Parties to the Conventionhas, since its fourth meeting, regularly reaffirmedthe importance of cooperation and the need todesign and implement mutually supportiveactivities with other conventions, internationalorganizations and initiatives.

2. Intellectual Property Rights and Biological Diversity

71. The reason why industries make investments inresearch and development is the expectation of atechnological advantage in relation to other marketcompetitors and, as a result thereof, higher profits.Intellectual Property Rights provide protection forthe results of investment in the development ofnew technology, thus giving incentives and meansto finance research and development activities. IPRare thus a means of promoting and rewardinginnovation. However, balancing private and publicinterests in protecting innovation is the essence ofIntellectual Property legislation.

72. Intellectual property legislation recognizes twomain categories of protection: “copyright” as rightsover the creations of people’s minds andexpressions of their thoughts and industrialproperty, like trademarks and geographicalindications. Intellectual property can be dividedinto the protection of distinctive signs liketrademarks and geographical indications and theprotection of technology and inventions throughpatents, industrial designs and trade secrets.

73. The importance of biomaterials for industrialpurposes is rapidly expanding. Pharmaceutical,biotechnological and agricultural industriesundertake expensive research and developmentefforts to create technologies that allow theeffective utilization of natural species’ genes and tomarket the improved products that result. They willthus make intensive use of any IPR regime in forceto recover their investments. Many companieshave been granted patents on domestically bredplants in developing countries and often also onindigenous knowledge about their use. IPRs arebeing claimed on plant species long used byAfricans, pain killers used by Chinese, Andeancrop species, and traditional rice varieties nurturedby Indian farmers.

74. Applying IPRs to plant genetic material can resultin constraining farmers in their use of seeds sincepatented seed varieties cannot be grown for futureuse as seed by a person not holding patent rights.Thus, farmers face the threat of becomingdependent on commercial supplies for vital inputssuch as seeds. Over longer periods this mightreduce breeding alternatives for local andindigenous farmers and communities. This couldeventually lead to higher genetic uniformity incrops or other commercialized plant species,which would become increasingly vulnerable topests and diseases. Strong IPRs systems thus canpromote genetic erosion, which entail seriousimplications for the genetic pool.

75. Under their domestic legislation industrial breederscan get the commercial gains of exploited PlantGenetic Resources without necessarily sharingthem with the indigenous communities of thecountries from which the genetic materialoriginates. However, the sharing of their traditionalknowledge and resources with the rest of the worldshould go hand in hand with the sharing of therelevant benefits derived from their utilization. Thisshould include the rights to control access to theirknowledge, its recognition and protection.

76. According to IP law, innovative knowledge mustcomply with different requirements to enable legalprotection. Innovation thus becomes a “formal”procedure, acknowledged merely if it complieswith given legal parameters and requirements. This“formal innovation” is appropriate for modernmarket societies.

77. Indigenous and local communities and localfarmers have long had a significantinterdependence with the lands and environmentswithin which they live. A wide array of plantspecies was bred over generations to resist specificpests or simply to enhance the harvest. Healing

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properties of many plants have been discoveredand developed over years to cure community-specific diseases. Any improvement in knowledgeor biodiversity has regularly been sought on behalfof the community, which is why indigenous andlocal communities and local farmers never deemedprotection of their knowledge necessary. This kindof innovation, not recognized within legalstructures, is known as “informal innovation.”

78. The concepts addressing “formal innovation” aremainly based on the idea that innovation is theproduct of individuals. This concept is notapplicable to indigenous knowledge wherecontributions are often made by entirecommunities and therefore cannot be attributed todistinct groups or individuals. The recognition oftheir rights needs the creation of special or suigeneris regimes. A further concern is that acquiringand defending IPR protection within the currentlyestablished regimes requires access to information,good legal advice and financial resources. Theseresources are often beyond the capabilities ofindigenous and local communities.

79. Recognizing only the known and established IPRalso bears the risk that indigenous communitieswill be forced to buy the products of thesecompanies at high prices. Likewise, farmers mighthave to pay royalties for using products which theyhad originally developed, improved, used andprotected themselves for centuries. Cultural andintellectual contribution of traditional knowledgeto industrial inventions risks being erased and lostforever, with unpredictable consequences forglobal biodiversity, food security and theenvironment in general.

80. Under these circumstances, the global communityhas recognized the need for protection oftraditional knowledge, innovations and practicesthrough the establishment of sui generis systems,for instance, in the form of Farmer’s Rights.

81. Several attempts have been made within theframework of other international agreements andnegotiations to introduce a system providing for theprotection of farmers’ and indigenouscommunities’ rights. The Convention on BiologicalDiversity recognizes the importance of the respectfor preservation, maintenance and recognition oftraditional knowledge, innovations and practicesand the role of indigenous and local communitiesand farmers in the conservation and sustainableuse of biological diversity. Furthermore, itrecognizes the importance of benefit-sharing withindigenous and local communities in recognitionof their role in the conservation and sustainable useof biological diversity.

82. Within the conventional IPR systems, the option ofthe use of “geographical indications” as a potentialmechanism for the recognition and protection of“informal innovation” has been raised. Indigenousproducts derived from long established traditionalmethods are frequently attributed names of theregion where they have been developed or of thecommunities that have habitually used them. Themain advantage of geographical indications as ameans of protection for informal innovation is the“relative impersonality” of the right (i.e., theprotected subject matter is related to the productitself (its attribute or definition) and is therefore notdependent on a specific right holder). However,since only certain products rely on customarilyused indications, especially new products will failto comply with the demands of IP law foraccrediting protection.

83. The Uruguay Round of trade negotiations (from1986 to 1994) brought intellectual property rights(copyrights, trademarks, patents, etcetera) into theGATT/WTO framework through the Agreement onTrade-Related Aspects of Intellectual PropertyRights. The scope of protection of IPRs has variedwidely between countries. The growth ininternational trade, including trade in productssubject to intellectual property rights, inevitably ledto increasing pressure for the harmonization andstrengthening of IPR systems, especially fromdeveloped countries with strong high-technologysectors. The TRIPS Agreement is an attempt tonarrow the differences in protection betweencountries and bring such rights under commoninternational rules.

84. The TRIPS Agreement deals with, inter alia, (a) theapplicability of the basic principles of GATT 1994(e.g., “most-favoured nation” treatment andnational treatment) and of relevant internationalintellectual property agreements or conventions;(b) the provision of adequate standards andprinciples concerning the availability, scope anduse of trade-related IPRs; (c) the provision ofeffective and appropriate means for theenforcement of trade-related IPRs; and (d) theprovision of effective and expeditious proceduresfor the multilateral prevention and settlement ofdisputes between governments.

85. The linkage between the TRIPS Agreement and theinternational biodiversity regime is mainly at fourdistinct levels: the protection of the knowledge,innovations and practices of local and indigenouscommunities; the sharing of the benefits arisingfrom the utilization of genetic resources; thepatentability of the forms; and the transfer oftechnologies.

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86. The first issue concerns the capacity of existing IPRregimes to protect traditional biodiversity-relatedknowledge. Article 8(j) of the Convention requiresparties to “...respect, preserve and maintainknowledge, innovations and practices ofindigenous and local communities embodyingtraditional lifestyles relevant for the conservationand sustainable use of biological diversity...” and to“...encourage the equitable sharing of the benefitsarising from the utilization of such knowledge,innovations and practices.” The TRIPS frameworkis predicated on the protection of formal andprivate knowledge in sharp contrast to the“informal, collective and intergenerational” natureof traditional knowledge. In this regard, therefore,there is a direct conflict between the objectives ofthe Convention and the TRIPS regime.Consequently, proposals have been made todevelop alternative sui generis IPR systems toprotect traditional biodiversity-related knowledge.

87. Second, article 27(1) of the TRIPS Agreementdefines the formal legal requirements regardingpatentable subject matter and provides that patentsshall be available for inventions that are “...new,involve an inventive step and are capable ofindustrial application...” Indigenous and localcommunities cannot therefore secure patentprotection for their knowledge of the naturalattributes of biological resources since suchknowledge does not constitute an invention interms of the TRIPS Agreement. Yet, in many casessuch knowledge has constituted an important inputto biotechnological innovation by modernindustry. In effect, the existing IPR regime is likelyto encourage the unauthorized appropriation oftraditional biodiversity-related knowledge withoutconcomitant benefit-sharing with the holders ofsuch knowledge. It has been suggested that IPRsystems should require, for example, the disclosureof the origin of traditional knowledge where thishas constituted an input to a biotechnologicalinvention in order to protect traditional knowledgeand promote benefit-sharing. In this respect,COP-6 in its Decision VI/24IICdii invited partiesand governments to encourage the disclosure ofthe origin of relevant traditional knowledge,innovations and practices in applications forintellectual property rights where the subject matterof the application concerns or makes use of suchknowledge in its development.

88. The TRIPS regime is primarily concerned withensuring adequate protection and enforcement ofIPRs. Issues of equity are not a centralconsideration. The Convention, however, requiresthat the benefits arising from the utilization ofgenetic resources and related traditional

knowledge be shared in a fair and equitablemanner with the contracting party providing suchresources and the holders of traditionalbiodiversity-related knowledge. In many instances,the results of research and development (“R&D”) indeveloped countries based on genetic resourcesand traditional biodiversity-related knowledgefrom developing countries have been protectedthrough the patent system without any benefitsaccruing to the countries of origin of such resourcesor the holders of relevant traditional knowledge.Indeed, the existing IPR systems do not require thedisclosure of either the country of origin of geneticresources or of the relevant traditional knowledgeused in R&D. In this instance also, the COP has, inits Decision VI/24C, invited parties andgovernments to encourage the disclosure of thecountry of origin of genetic resources in patentapplications. Such disclosure would promote thetracking of compliance with prior informedconsent and mutually agreed terms on whichaccess to genetic resources was granted andcontribute to sharing of benefits arising from theutilisation of genetic resources.

89. Article 27(3)(b) of the TRIPS Agreement providesthat members may exclude from patentability“plants and animals other than micro-organisms,and essentially biological processes for theproduction of plants or animals other than non-biological and microbiological processes.However, Members shall provide for the protectionof plant varieties either by patents or by an effectivesui generis system or by a combination thereof...”The provision is largely permissive since it leavesthe discretion to members to decide whether togrant patents for plants, animals or essentiallybiological processes. In any case, the provisionprovided for the review of the sub-paragraph fouryears after the entry into force of the WTOAgreement. The process of review is alreadyunderway within the TRIPS Council. The fear isthat such a review might result in a mandatoryrequirement for the protection of plants, animals,biological processes and plant varieties throughpatents.

90. The inclusion of biological material in the TRIPSAgreement, either through patent protection orthrough other forms of IPR protection raisesfundamental issues for the Convention. First, thereis the ethical question: is it morally defensible topatent life forms, such as animal and plant species.There has been significant public opposition togenetic engineering on moral grounds in a numberof European countries. Second, there is the issue ofthe privatization of biological resources, that is, thegrant of monopoly rights over biological resources.

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This could not only create restrictions on continuedaccess to genetic resources, in particular byindigenous and local communities and farmerswho are dependent on biological resources forsustenance (economic, social and spiritual), butalso lead to a rapid depletion of biologicalresources. Such privatization may, therefore, not beconsistent with the overall objectives of theConvention.

91. Article 7 of the TRIPS Agreement emphasizes, asone of its primary objectives that “The protectionand enforcement of intellectual property rightsshould contribute to the promotion oftechnological innovation and to the transfer anddissemination of technology, to the mutual benefitof producers and users of technologicalknowledge...” In this respect, there is significantcoincidence with the provisions of the Conventionwhose article 16 requires parties to provide and/orfacilitate the transfer of technology to other parties.Further, that access to and transfer of technology todeveloping countries shall be “...under fair andmost favourable terms, including on concessionaland preferential terms where mutually agreed...”and that “...such access and transfer shall beprovided on terms which recognize and areconsistent with the adequate and effectiveprotection of intellectual property rights...” Theprovision further underlines that the partiesrecognize that patents and other IPRs may have aninfluence on the implementation of the Conventionand calls for international cooperation to ensurethat IPRs are supportive and do not run counter tothe objectives of the Convention. In addition,article 19(2) requires each contracting party “...topromote and advance priority access on a fair andequitable basis by Contracting Parties, especiallydeveloping countries, to the results and benefitsfrom biotechnologies based upon geneticresources provided by those Contracting Parties...”

92. It has been argued that IPR systems encouragetechnology transfer, particularly in those sectorswhere research and developments costs are high,by reassuring owners of proprietary technology thattheir rights will be protected. Potential suppliers oftechnologies are more willing to transfertechnology voluntarily if the recipient country hasan effective IPR regime in place. On the otherhand, it is asserted that the protection of plantvarieties through Plant Breeders Rights (“PBRs”)and utility patents make elite plant varieties tooexpensive for indigenous and local communitiesand farmers in developing countries. In addition,such protection may discourage researchers fromexchanging genetic material freely.

3. International Convention for the Protection of NewVarieties of Plants

93. The International Union for the Protection of NewVarieties of Plants (“UPOV Convention”), is anintergovernmental organization established in1961 to coordinate the implementation, at theinternational level, of the Plant Breeder’s Rightsestablished by the Convention for the Protection ofNew Varieties of Plants. The Convention, adoptedin Paris in 1961, entered into force in 1968, andwas revised in 1972, 1978 and 1991. Currentlyfifty-eight states (May 2005) are parties to theConvention.

94. The 1961 UPOV Convention, as amended, isaimed at ensuring that member states acknowledgethe accomplishments of new plant variety breedersand make available to them exclusive rights ofexploitation if their varieties are distinct,homogeneous and stable. It provides a sui generisform of intellectual property protection specificallyadapted for the process of plant breeding and iscalculated to encourage breeders to develop newvarieties of plants.

95. From 1961 to 1991, the UPOV Conventionprovided for a Breeder’s Exemption and, at leastimplicitly, a Farmer’s Privilege, where bothprinciples provide flexibility within the IPprotection.

96. According to the Breeder’s Exemption,authorization by the breeder is not required eitherfor the utilization of the variety as an initial sourceof variation for the purpose of creating newvarieties or for the subsequent exploitation of suchnew varieties. Under the 1991 Convention,however, the only compulsory exceptions to theexclusive right of the breeder left are: (i) acts doneprivately and for non-commercial purposes; (ii) actsdone for experimental purposes; and (iii) acts donefor the purpose of breeding and exploiting othervarieties, provided they are not essentially derived.The Breeder’s Exemption is thus not applicable toessentially derived varieties, which are varietiespredominantly derived from another (initial) varietyretaining the expression of the essentialcharacteristics from the genotypes or combinationof genotypes of the initial variety.

97. According to the Farmer’s Privilege, farmers areallowed to use their own harvested material of theprotected varieties for subsequent sowing on theirown farms. As implicitly recognized under the1978 Act a broad interpretation of the “privilege”was allowed. The 1991 Act, however, has

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narrowed it down by explicitly including it in itstext. According to 1991 Act, the Farmer’s Privilegeis no longer the general rule but an optionalexception, which leaves it up to nationalgovernments to decide whether to permit farmersto use the seed of a protected variety. This wouldbe allowed for propagation purposes on their ownholdings, within reasonable limits and subject tothe safeguarding of the legitimate interest of thebreeder (article 15.2).

98. While under the 1978 Act the breeder was entitledto protection whatever the origin of the initialvariation from which his variety is derived, thusincluding the mere discovery of a new plantvariety, this is not sufficient under the 1991 Act.The breeder must have developed his variety inorder to be entitled to the protection. Unlike theprevious Acts, the 1991 Act provides parties withthe possibility of simultaneous protection for thesame plant variety by more than one type ofintellectual property rights (i.e., they can chooseboth Plant Breeder’s Rights and patents).

99. The 1978 Act limits the scope of protection toreproductive or vegetative propagating material ofthe variety not including harvested products, whilethe 1991 Act extends it to the commercial use of allmaterial of the variety. Thus, the Breeder’s Rightsextend to varieties that are not clearlydistinguishable from the protected variety; varietieswhose production requires the repeated use of theprotected variety, and varieties that are essentiallyderived from the protected variety.

100. The 1978 Act requires the authorization of thebreeder for the repeated use of the plant varietyonly in cases of commercial production.Authorization from the breeder is extended underthe 1991 Act to propagating material, harvestedmaterial and products made thereof provided anumber of conditions are met.

101. The 1978 Act requires member states to protect aminimum of five genera upon becoming a partyand to protect genera or species on a progressivebasis thereafter, leading to a minimum of twenty-four genera, while again, the 1991 Act requiresexisting member states to protect all plant generawithin a given period of time.

102. According to the 1978 Act, states have to grantPlant Breeder’s Rights protection for a minimumperiod of 18 years for vines, forest trees, fruit treesand ornamental trees, and fifteen years in the caseof all other species, while in the 1991 Act it hasbeen extended to 25 and 20 years, respectively.

a) Agenda 21

103. Chapter 14 of Agenda 21 deals with the plantgenetic resources of the world within the context oflong-term food security, sustainable agriculture andrural development. Chapter 15 addresses theconservation of biological diversity; and Chapter16 addresses the environmentally soundmanagement of biotechnology. Throughout thesechapters, Agenda 21 recognizes the importance ofindigenous and local communities, theirknowledge and culture, and the potentialcontribution to the protection of biodiversity.

b) FAO Global System for the Conservation andSustainable Use of Plant Genetic Resources

104. In 1983, the FAO established the Commission onPlant Genetic Resources (now the Commission onPlant Genetic Resources for Food and Agriculture(”CGRFA”)) as a permanent intergovernmentalforum to deal with questions concerning plantgenetic resources. It also adopted as a formalframework the International Undertaking on PlantGenetic Resources (“IUPGR”). The Commissionhas since coordinated, overseen and monitored thedevelopment of the FAO Global System for theConservation and Sustainable Use of Plant GeneticResources for Food and Agriculture and itsmandate has been broadened to cover allcomponents of biodiversity of relevance for foodand agriculture in 1995. A total of 167 countriesand the European Community now are members ofthe CGRFA (as of January 2006).

105. The objectives of the Global System are to ensurethe safe conservation and to promote theavailability and sustainable utilization of plantgenetic resources for present and future generationsby providing a flexible framework for sharing thebenefits and burdens. It covers both theconservation (ex situ and in situ, including on-farm)and utilization of plant genetic resources for foodand agriculture.

106. The IUPGR was the first comprehensiveinternational agreement governing theconservation and sustainable utilization ofagricultural biodiversity. Its objective was to ensurethat plant generic resources of economic and socialinterest will be explored, preserved, evaluated andmade available for plant breeding and scientificpurposes.

107. Agenda 21 called for the strengthening of the FAOGlobal System for the Conservation andSustainable Use of Plant Genetic Resources, and its

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adjustment in line with the outcome of negotiationson the CBD.

108. In accordance with the outcome of thenegotiations of the UNCED as well as for therealization of Farmers’ Rights, the FAO Conferenceadopted a resolution in 1993 on the “Revision ofthe International Undertaking on Plant GeneticResources”, which requested the Director-Generalto provide a forum for negotiations amongGovernments for (i) the adaptation of the IUPGR, inharmony with the CBD; (ii) consideration of theissue of access on mutually agreed terms to plantgenetic resources, including ex situ collections notaddressed by the Convention; and (iii) the issue ofthe realization of Farmers’ Rights. In thisResolution the Conference urged that the processbe carried out through the Commission on PlantGenetic Resources (now “CGRFA”), with the helpof its Working Group, in close collaboration withthe Governing Body of the Convention.Throughout the negotiation process, the COPadopted decisions underlining the need forensuring harmony with the Convention.

109. This issue of Farmers’ Rights resulted from debatesin FAO concerning the asymmetric treatment givento donors of germplasm and donors of technology.The FAO Conference acknowledged in variousresolutions “the enormous contribution thatfarmers of all regions have made to theconservation and development of plant geneticresources, which constitute the basis of plantproduction throughout the world, and which formthe basis for the concept of Farmers’ Rights” anddefined Farmer’s Rights as “rights arising from thepast, present and future contribution of farmers inconserving, improving and making available plantgenetic resources, particularly those in the centresof origin/diversity.”

110. The objective of the development of the concept ofFarmers’ Rights was to ensure that farmers, farmingcommunities and their countries, receive a justshare of the benefits derived from plant geneticresources (which they have developed, maintainedand made available) and thereby provideincentives and means for the conservation andfurther development of these plant geneticresources by farmers, and through cooperationbetween farmers, breeders and the national andinternational research services.

111. In order to implement Farmers’ Rights, somedeveloping countries are considering the inclusionof a national mechanism as part of thedevelopment of a national sui generis system ofprotection of new plant varieties under the TRIPSAgreement. Given the global nature of the values

of germplasm that farmers provide, theimplementation of Farmers’ Rights needs someform of international action in order to compensatefarmers at the global level.

112. The International Treaty on Plant GeneticResources for Food and Agriculture (“2001ITPGR”) was adopted in November 2001, afterseven years of international negotiations for therevision of the 1983 International Undertaking onPlant Genetic Resources.

113. The objective of the 2001 ITPGR is theconservation and sustainable use of plant geneticresources for food and agriculture and the fair andequitable sharing of the benefits arising out of theiruse, in harmony with the Convention on BiologicalDiversity for sustainable agriculture and foodsecurity. This objective is to be attained by closelylinking the International Treaty to the FAO and tothe Convention (article 1).

114. The scope of the 2001 ITPGR embraces all plantgenetic resources for food and agriculture. TheTreaty is at the crossroads between agriculture,trade and the environment, and constitutes amultilateral tool to promote cooperation andsynergy in these sectors.

115. The 2001 ITPGR establishes a multilateral systemof access and benefit-sharing for plant geneticresources, related knowledge and technologies, foran agreed list of crops, established on the basis ofinterdependence and food security. It also providesfor benefit sharing through information exchange,technology transfer, capacity building, and themandatory sharing of the monetary and otherbenefits of commercialization of productsincorporating material accessed through theMultilateral System. It also includes a FundingStrategy according to which parties to theInternational Treaty will take measures, within thegoverning bodies of relevant internationalorganizations, to ensure the allocation of agreedand predictable resources. Monetary benefits paidon commercialization are part of this fundingstrategy.

116. The Multilateral System applies to a list of sixty-fourplant genera, which include thirty-five crops andtwenty-nine forages. The conditions for access andbenefit sharing will be set out in a standardMaterial Transfer Agreement (“MTA”), to beestablished by the Governing Body, at is firstmeeting, after entry into force.

117. Access will be provided for utilization andconservation in research, breeding and training forfood and agriculture, and subject to property rights

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and access laws. A key point is payment of anequitable share of the monetary benefits from thecommercialization of a product that uses plantgenetic resources from the Multilateral System. Thisis projected to be voluntary when the product isavailable without restriction for further researchand breeding and mandatory when it is not.

118. The 2001 ITPGR, in article 9, underlines that“...Contracting Parties recognize the enormouscontribution that local and indigenouscommunities and farmers of all regions of theworld, particularly those in the centres of originand crop diversity, have made and will continue tomake for the conservation and development ofplant genetic resources which constitute the basisof food and agriculture production throughout theworld.” The International Treaty recognizesFarmers’ Rights as being complementary to PlantBreeders’ Rights. However, the contracting Partiesagree that the realisation of these rights rests withnational governments. Therefore, in accordancewith their needs and priorities each contractingparty should take measures to protect and promoteFarmer’s Rights through:

• The protection of traditional knowledgerelevant to plant genetic resources for food andagriculture;

• The right to equitably participate in sharingbenefits arising from the utilization of plantgenetic resources for food and agriculture; and,

• The right to participate in national decision-making related to the conservation andsustainable use of plant genetic resources forfood and agriculture.

119. Aiming at guaranteeing food security, 2001 ITPGRbenefits all humankind. The immediate benefits,however, for plant breeders (particularly for small-scale breeders in developing countries), are that theTreaty ensures access to the plant genetic resourcesthey need, and prevents their monopolization, inparticular, by large players. For the private sector, itsets out a clear and predictable framework foraccess to plant genetic resources, which willpromote investment in agricultural research. TheTreaty provides the agriculture sector in generalwith a new forum, in which to address the specialneeds and problems of agriculture and from whichto negotiate with the trade and environmentforums. 2001 ITPGR entered into force on 29 June2004 and has currently 83 parties (as of January2006).

120. As the specialized United Nations agencyresponsible for the promotion of IP worldwide, theWorld Intellectual Property Organization (“WIPO”)

administers some twenty-three treaties in the fieldof intellectual property. These treaties define theinternationally agreed basic standards ofintellectual property protection and establish aglobal protection system which ensures that oneinternational registration or filing system will haveeffect in any of the relevant signatory states. Thetreaties dealing with standards cover, inter alia,patents, copyrights, trademarks and industrialdesigns and include the Paris Convention for theProtection of Industrial Property (1883), the BerneConvention for the Protection of Literary andArtistic Works (1886), the Patent Law Treaty (2000)(entered into force on 28 April 2005), theTrademark Law (1994) and the WIPO CopyrightLaw Treaty (2002). The objective of the globalprotection system treaties is to simplify and reducethe cost of making individual applications or filingsin all the countries in which protection for a givenintellectual property right is sought. The treaties inthis category include the Patent Cooperation Treaty(1970), which implements the concept of a singleinternational patent application which has legaleffect in the countries, which are bound, by thetreaty.

121. WIPO has only more recently considered specificIP issues related to traditional knowledge andgenetic resources. In particular, WIPO undertookfact-finding missions to consult with a wide rangeof stakeholders such as indigenous and localcommunities, Non-Governmental Organizations,governmental representatives, academics,researchers and private sector representatives todetermine the IP needs and expectations of holdersof traditional knowledge.

122. In October 2000, the WIPO General Assemblyagreed to establish the IntergovernmentalCommittee on Intellectual Property and GeneticResources, Traditional Knowledge and Folklore(“IGC”), a unique intergovernmental body fordebate and dialogue concerning the interplaybetween intellectual property, traditionalknowledge, genetic resources and folklore.

123. The IGC’s work programme considers issues suchas the role of IP systems in relation to traditionalknowledge and how to preserve, protect andequitably make use of traditional knowledge. TheIGC has also worked on both the defensive and thepositive protection of traditional knowledge. Thedefensive protection of traditional knowledgeconsists of measures that ensure that other partiesdo not obtain IP rights over pre-existing traditionalknowledge. The positive protection consists of theuse of existing legal mechanisms to protect andpromote traditional knowledge. In some countries,

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legislation has been developed specifically toaddress the positive protection of traditionalknowledge.

124. The work of the IGC has concentrated onexamining the relationship between IP and geneticresources in the areas of contractual agreements foraccess to genetic resources; legislative,administrative and policy measures to regulateaccess to genetic resources; and the protection ofbiotechnological inventions. The IGC hasfurthermore conducted an on-going technicalanalysis of the use of existing intellectual propertyand sui generis approaches for the legal protectionof traditional cultural expressions.

125. As part of the work of the IGC, WIPO is currentlyin the process of compiling an on-line, searchabledatabase of biodiversity-related Access andBenefit-Sharing Agreements, with a particularemphasis on the intellectual property aspects ofsuch agreements. Other databases and inventoriescurrently being developed by WIPO includeTraditional Knowledge Databases and Prior Art;Non-Exhaustive Inventory of TraditionalKnowledge-Related Databases; and Non-Exhaustive Inventory of Traditional Knowledge-Related Periodicals.

126. The Conference of the Parties to the Convention onBiological Diversity has, over the years, recognisedthe important role WIPO may play in theimplementation of the provisions of theConvention concerning the protection oftraditional knowledge and access to geneticresources and benefit-sharing and has underlinedthe need for closer cooperation and mutualsupportiveness. At its fifth meeting, the COP indecision V/26 requested WIPO, in its work onintellectual property issues, to take due account ofthe relevant provisions of the Convention,including the impact of IPRs on the conservationand sustainable use of biological diversity, and inparticular the value of the knowledge, innovationsand practices of indigenous and localcommunities. In the same decision, it invitedWIPO to analyze issues of IPRs as they relate toaccess to genetic resources, including disclosure ofcountry of origin of genetic resources in patentapplications. At its sixth meeting, the COP indecision VI/24 C invited WIPO to prepare atechnical study on disclosure issues regardingcountry of origin of genetic resources, sources oftraditional knowledge and prior informed consentwhere genetic resources and/or traditionalknowledge have been utilised in the developmentof claimed inventions.


1. Costa Rica

127. This Central American state covers just 0.04% ofthe world’s total land area, yet is believed toharbour some half a million species, or about 4%to 5% of the estimated terrestrial biodiversity onthis planet. To conserve its rich biological heritage,Costa Rica has placed roughly 25% of its land baseunder some form of protection.

128. The Costa Rican Biodiversity Law (“Costa RicaLaw”) (1998) is a framework law on sustainabledevelopment and biodiversity. It clearly establishesthe Mutually Agreed Terms (“MAT”) and PriorInformed Consent (“PIC”) Principles. Its objectivesinclude:

• The integration of conservation and sustainableuse of the biodiversity elements into thedevelopment of socio-cultural, economic andenvironmental policies;

• The promotion of the active participation of allsocial sectors in the conservation andecologically sustainable use of biodiversity, inorder to attain economic, social and culturalsustainability; and

• The regulation of access to genetic resourcesand thus to make it possible an equitablesharing of the social, environmental andeconomic benefits derived from the utilisationof such genetic resources, with specialattention to the local communities andindigenous peoples.

129. The Costa Rica Law defines “access to biochemicaland genetic elements” as activity to obtain samplesof wild or domesticated biodiversity, in ex situ or insitu conditions as well as the procurement of theassociated knowledge. The ultimate goal of accessshould be basic research, bio-prospecting oreconomic utilization.

130. Any research programme or bio-prospectingactivity to be carried out in the national territory,involving biodiversity genetic or biochemicalmaterial requires an access “permit”. Certaincriteria are established to promote enforcement ofthe law. Among these criteria the preventivecriterion, the precautionary criterion or in dubiopro natura, and the environmental public interestcriterion.

131. A National Commission for the Management ofBiodiversity was established, whose role it is topropose policies concerning access to biodiversity

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and genetic and biochemical elements, both in situand ex situ. It also performs the role of acompulsory consultation body in processes relatedto “intellectual rights” claims. The provisionsapproved by the Commission on this issueconstitute the general regulations of access togenetic and biochemical elements as well as forthe protection of biodiversity “intellectual rights”.In order to obtain an access permit it is necessaryto show:

• The prior informed consent of therepresentatives of the place where access willmaterialize;

• The ratification of such PIC by the TechnicalOffice of the Commission;

• The terms under which technology transfer andequitable sharing of benefits will take place;and

• The type of protection required by therepresentatives of the place where access willmaterialize; and the definition of the way inwhich such activities will contribute to theconservation of species and ecosystems.

132. The Costa Rica Law also includes a right to culturalobjection, according to which the local andindigenous communities are enabled to oppose toaccess to “their” resources and the associatedknowledge on the basis of cultural, spiritual, social,economic or other reasons.

133. The Commission also runs a Technical Office,which issues the access permits. It should organizeand keep updated a registry of access rights togenetic and biochemical elements. This Office isalso in charge of collecting a deposit frominterested countries for the National System ofConservation Areas. Access permits should clearlystate:

• The certificate of origin, the possibility orprohibition to extract or export samples or,where applicable, the duplication and depositof such samples; the periodical reports;

• The necessary monitoring and control;• The ownership and publicity of results; and• Any other condition that according to the

applicable scientific and technical rules isnecessary in the view of the Technical Office ofthe Commission.

134. The Costa Rican Wildlife Conservation Law(“Wildlife Law”) (1992) applies to genetic resourcesof wild flora and fauna. Although it does not extendto domesticated or cultivated species, the WildlifeLaw still applies to wild fauna and flora that arelocated ex-situ. Since they remain state owned ornational patrimony, access to them requiresauthorization from the state. Genetic resources canbe removed from Costa Rican national parks onlywith prior authorization.

135. The activities regulated by the Wildlife Law arerelated to the ultimate purposes or objectives ofphysical access to genetic resources. Article 50 ofthe Wildlife Law makes a distinction betweencommercial and non-commercial activities. It setsout different requirements for each. This legalinstrument for access applies to nationals and non-nationals. However, nationals may be entitled tospecial treatment: for example, being subject tolower licensing fees or access for longer periods beauthorized for nationals than to non-nationals.

136. In order to ensure that prior informed consentrequirements fulfilled export controls are used byCosta Rica under the Wildlife Law. The 1992Wildlife Law requires written permission to exportwildlife from the Wildlife Office of the Ministry ofNatural Resources, Energy and Mines.

2. India

137. India’s Biological Diversity Act (“Diversity Act”)(2002) is designed to turn the spirit of theConvention of Biological Diversity into a nationalinstrument with three objectives:

• Conservation of biodiversity; • Sustainable use of biological resources; and• Equitable sharing of benefits arising from such

use.

138. To this end, the Diversity Act:

• Prohibits transfer of Indian genetic materialoutside the country, without specific approvalof the Indian Government;

• Stipulates that anyone wanting to take a patentor other Intellectual Property Right (“IPR”) oversuch material, or over related knowledge, mustseek permission in advance;

• Provides for the levying of appropriate fees androyalties on such transfers and IPRs;

• Provides for the development of appropriatelegislation or administrative steps, includingregistration, to protect indigenous andcommunity knowledge;

• Empowers governments to declare BiodiversityHeritage Sites, as areas for special measures forconservation and sustainable use of biologicalresources;

• Stipulates that risks associated withbiotechnology (including the use of geneticallymodified organisms), will be regulated orcontrolled through appropriate means; and

• Provides for the designation of repositories ofbiological resources, at national and otherlevels.

139. The Diversity Act proposes to set up bodies at threelevels (national, state and local), to carry out theabove functions. Importantly, the Diversity Act

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provides citizens with the power to approachcourts if they detect violations. The Diversity Actpresents a bold step by a national government totake the issues of biodiversity conservation andsustainable use seriously in addressing the thornyissues involved:

India, Biological Diversity Act(Article 8(j))

“3(1) ...No person... (…non-citizen, non-resident ornon registered or foreign owned corporation…) shall,without previous approval of the National BiodiversityAuthority, obtain any biological resource occurring inIndia or knowledge associated thereto for research orfor commercial utilization or for bio-survey and bio-utilization.

4. No person shall, without the previous approval ofthe National Biodiversity Authority, transfer the resultsof any research relating to any biological resourcesoccurring or obtained from, India for monetaryconsideration or otherwise to any person who is not acitizen of India or citizen of India or a body corporateor organization which is not registered or incorporatedin India or which has any non-Indian participation inits share capital or management.

6. (1) No person shall apply for any intellectualproperty right, by whatever name called in or outsideIndia for any invention based on any research orinformation on a biological resource obtained fromIndia without obtaining the previous approval of theNational Biodiversity Authority before making suchapplication...

7. No person, who is a citizen of India or a bodycorporate, association or organization which isregistered in India shall obtain any biological resourcefor commercial utilization, or bio-survey and bio-utilization except after giving prior intimation to thestate Biodiversity Board concerned:

Provided that the provisions of this section shall notapply to the local people and communities of the area,including growers and cultivators of biodiversity, andvaids and hakims, who have been practicingindigenous medicine.“

140. In certain aspects, the Diversity Act goes furtherthan the CBD. For instance benefit sharing isenvisaged not only for indigenous communities forall communities as well as in relation to classicalknowledge as contained in the Ayurvedic texts.Furthermore, the Act does not only cover geneticresources of which India is the country of origin butalso such resources of which neighbouringcountries are hosts.

141. The Biological Diversity Act also responds to theage of biotechnology and information technology.In order to implement the provisions of this Act, abiodiversity information system of unparalleledsize and complexity needs to be set up. ThisBiodiversity Information System will have to

compile information on a variety of issues, namely:

• Status of the country’s ecological habitats, andthe natural as well as anthropogenic processesimpacting the habitats;

• Current status of populations of a whole rangeof biodiversity elements, focusing on the morenotable useful and harmful species andvarieties, and the impact of natural processes,as well as human harvests, culturing, controland other practices;

• Regimes of legal as well as customary propertyrights, access rights, and conservation practicesas they affect biodiversity;

• Harvest, transport, trade and markets inbiodiversity;

• Processing of biodiversity resources to generatevalue added products;

• Demand for and consumption of biodiversityresources and their products;

• Existing technologies and new innovationspertinent to biodiversity, both at grass-roots,and in the more sophisticated industrial sector;and

• Intellectual property rights, customary as wellas through the legal regime, over biodiversityresources.

142. Such a Biodiversity Information System will have tofeed into development planning at all levels, fromPanchayats, through districts, states and thecountry as a whole. It will have to help promotesustainable use and economic activities such aslocal level value addition, as well as serve moresophisticated biotechnology based enterprises. Itshould help direct proper flows of benefits ofcommercial uses of biodiversity to holders oftraditional knowledge, as well as to grass-rootsinnovators.

143. It will also be relevant to actualizing the provisionspertaining to farmers’ rights in the Protection ofPlant Varieties and Farmers’ Rights Act of 2001.While organizing information pertaining to plantvarieties intellectual property rights concerns haveto be kept in mind and guard the interests of allsegments of the population, of the tribe and, of thedispensers of herbal medicines, as well as modernenterprises such as pharmaceutical industry.

3. China

144. Unlike Costa Rica and India, China does not havea specific law on biodiversity. Nationalimplementation of the Convention on BiologicalDiversity in China is carried out through differentlaws and by a broad variety of means and indifferent sectors of national governance.

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145. China has formulated a series of laws, regulations,plans and programmes for the conservation andsustainable use of biological diversity. TheConstitution of China regulates that the state shallensure the reasonable utilization of naturalresources and protect the rare and valuable faunaand flora. Laws and regulations concerned withconservation of biological diversity include forexample the Law on Environmental Protection, theLaw on Forest, the Law on Water, the Law onMarine Environmental Protection, the Law onGrasslands, the Law on Fishery, the Law onProtection of Wild Animals, the Regulation onNature Reserves and the Regulation on Protectionof Wild Plants.

146. Under the support of UNDP/GEF, China compiledits China Biodiversity Conservation Action Plan in1994, in which the priority of ecosystems forbiodiversity conservation and the priority of speciesunder protection are determined. The Chinesegovernment also compiled and promulgatedChina’s Agenda 21 – White Paper on China’sPopulation, Environment and Development in the21st Century. Chapter 15, “Conservation ofBiodiversity,” of the White Book defines thepolicies, targets, priority areas and projects forbiodiversity conservation.

147. China set up its Compendium of DevelopmentPlan for Nature Reserves in China (1996-2010),specifying the targets and specific programmes fornature reserves planning nationwide. Furthermore,China has formulated Biodiversity ConservationAction Plan for all different kinds of sectors, likeforestry, agriculture, marine environment, nationalwetlands and for ex situ Protection of the GiantPanda.

148. In November 2000, the State Council issued theCompendium of National Ecological EnvironmentConservation. The basic principles of theCompendium are:

• To protect ecosystems, to constructecosystems, and to attach equal importance topollution prevention and to ecologicalconservation;

• To conduct integrated planning,comprehensive decision-making andreasonable development;

• All development activities of natural resourcesshould take the carrying capacity of naturalecosystems into consideration;

• It is not allowed to sacrifice ecologicalenvironment for short-term and regionaleconomic benefits; and

• To follow the principle that those conductingthe development should be responsible for theconservation, and those making the damagesshould be responsible for the restoration, thoseutilising the resources should pay, so as toprotect ecological environment according tolaws.

149. China has made significant achievements with insitu conservation. Nationwide, in situ conservationnetworks have been preliminarily set up. By theend of 2000, there were 1,227 nature reserves,with a total area of approximately 98 millionhectares, accounting for nearly 10% of the stateterritory.

150. Since 1979, China has carried out environmentalimpact assessment. The industrial constructionprojects, infra-structure construction projects,regional programming projects and the agriculture,forest, water resources, marine engineeringprojects should conduct environmental impactassessment.

151. The development of wild animal breeding and wildplant cultivation is an important way to conserveand reasonably utilize biological resources. Thepermit system has standardized the breeding andcultivation of wild animals and plants, which hasprovided large amount of fur and pharmaceuticalproducts for markets, reduced the demand forwildlife and promoted the sustainable utilization ofthese resources.

152. In order to protect spawning fish and baitingfingerling, no-fishing zones and seasons have beendesignated; and the fishery permit system has beencarried out. Great efforts have been devoted toartificial breeding and natural breeding whileprotecting fishery resources.

153. In order to restore and re-establish damaged anddegraded ecosystems, the Chinese governmenthave taken significant measures to implement theprojects for conservation of natural forests. Sincethe implementation of pilot project of natural forestconservation in 1998, approximately 51 millionhectares of forests have been protected whilenearly 6,000 million hectares of forest vegetationhas been restored.

154. The development of new tourism zones and theconstruction of new tourism sites and tourismreception facilities in the tourism zones shouldfollow environmental impact assessment. In orderto support the international ecotourism year, Chinahas conducted various kinds of educationactivities.

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155. Policies and regulation in China respect the rightsof minorities and local communities and respectthe traditional lifestyle of the local communitiesthat is beneficial to the conservation andsustainable use of biological diversity. Theypromote the sum-up, inheriting and developing ofthe traditional knowledge, which has been activelyconducted with the assistance of relevantinternational organizations.

156. Also, with the assistance of internationalorganizations, some nature reserves undertookmanagement with the participation of localcommunities which are encouraged in themanagement of the nature reserves. China’sAgenda 21 clearly emphasizes the significance ofconserving traditional knowledge and encouragesthe participation of minority nationalities, women,and communities in biodiversity conservation.

157. In April 1997, China issued the Regulation of theProtection of New Varieties of Plants, to conductprotection of new plant varieties by regulation.Based on the regulation, the ImplementationMeasures of the Regulation of the Protection ofNew Varieties of Plants (agriculture and forestryparts) and the protected inventory of newagriculture and forestry plant varieties were issued.Since 1996, China has organized theimplementation of seed engineering. In order topromote the awareness of the importance ofprotecting new plant varieties across the countryand the enforcement and administration in linewith laws, training courses have been conducted.China has also set up the information exchangenetwork of germplasm resources with convenientinformation inquiry through Internet for overseasusers. In the last years China has provided over8000 copies of various crop germplasm resourcesfor the countries in the world and the internationalagriculture research institutions, so that thegermplasm resources of China could be utilized inthe world and thus make contributions to worldfood safety.

158. China has implemented the protection ofbiotechnological intellectual property rights sincemid-1980s. The Patent Law, enacted on 1 April1985, protects the invention of biotechnology,including the invention of the production methodsof animal and plant varieties and medicines. ThePatent Law, amended on 1 January 1993, lists mostof the products and materials modified bybiotechnology into protection. However, thefourth provision of article 25 of the law stipulatesthat animal and plant varieties shall not be grantedwith patents.

159. In connection with the preparation for entry intorelevant international treaties and the WTO, Chinaissued the Regulation of New Plant VarietyProtection on 30 April 1997. Up to now, eighteenspecies and genera in the first batch wereprotected, such as rice, corn, Chinese cabbage,potato, chrysanthemum, dianthus, Calamus,purple flower lucerne, grassland early grain,Chinese white poplar, paulownia, China fir,magnolia, peony, plum, rose and camellia.

Dan Ogolla, Programme Officer, Legal Affairs,Secretariat of the Convention on BiologicalDiversity


Rossana Silva Repetto, Legal Officer, RegionalOffice for Latin America and the Caribbean, UNEP

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Resources

Internet Materials

BIOLOGICAL DIVERSITY IN FOOD AND AGRICULTURE available at http://www.fao.org/biodiversity/genres_en.asp

CONVENTION ON BIOLOGICAL DIVERSITY available at www.biodiv.org

INTERNATIONAL UNION FOR THE PROTECTION OF NEW VARIETIES OF PLANTS available at http://www.upov.int/index.html

THE CONVENTION ON BIOLOGICAL DIVERSITY IN CHINA available at http://www.biodiv.org/world/map.asp?ctr=cn

THE CONVENTION ON BIOLOGICAL DIVERSITY IN COSTA RICA available at http://www.biodiv.org/world/map.asp?ctr=cr

THE CONVENTION ON BIOLOGICAL DIVERSITY IN INDIA available at http://www.biodiv.org/world/map.asp?ctr=in

WORLD TRADE ORGANIZATION, TRIPS AGREEMENT, ARTICLE 27.3B (TRADITIONAL KNOWLEDGE AND BIODIVERSITY) available athttp://www.wto.org/english/tratop_e/trips_e/art27_3b_e.htm

WORLD INTELLECTUAL PROPERTY ORGANIZATION available at http://www.wipo.int

Text Materials

Brian Groombridge (Ed.), GLOBAL BIODIVERSITY: STATUS OF THE EARTH’S LIVING RESOURCES: A REPORT (First ed, Chapman& Hall, 1992).

Christoph Bail, Robert Falkner & Helen Marquard (Eds.), THE CARTAGENA PROTOCOL ON BIOSAFETY: RECONCILING TRADE

IN BIOTECHNOLOGY WITH ENVIRONMENT.

Jack R. Kloppenburg Jr. & Daniel L. Kleinman, Seeds of Controversy: National Property versus Common Heritage, inSEEDS AND SOVEREIGNITY: THE USE AND CONTROL OF PLANT GENETIC RESOURCES, (1988).

Michael Bowman & Catherine Redgwell (Eds.), INTERNATIONAL LAW AND THE CONSERVATION OF BIOLOGICAL DIVERSITY,(Kluwer Law International, 1996).

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16. BIOSAFETY

I. Introduction

1. Biotechnology which is the use of biologicalprocesses to develop products, has a long historyand refers to a range of techniques, includingselective breeding, cross-fertilization andfermentation. Generally, biotechnology hasbrought about many economic and human healthbenefits. For example, the selection and breedingof grains has produced better quality and higheryielding varieties and has expanded the use ofdiverse crop species well beyond their centres oforigin.

2. Over the past four decades, science has evolvedrapidly beyond conventional methods ofbiotechnology. Scientific research into the geneticproperties of living organisms has revealed howseveral biological functions are determinedthrough information encoded in the organisms’genes. Science has made it possible to isolate agene and transfer genetic code, DeoxyribonucleicAcid (“DNA”), between organisms. Thus,techniques in modern biotechnology now includegenetic engineering.

3. Animals, plants, and micro organisms, in whichone or more foreign genes are introduced, arecalled “transgenic organisms”. These GeneticallyModified Organisms (“GMOs”) [in some instances,reference is made to Living Modified Organisms(“LMOs”) have combinations of genes or geneticmaterials that have been altered in a way that doesnot occur naturally through mating orrecombination.

4. GMOs have potential benefits. Modernbiotechnology, makes it possible to mass producetherapeutically useful compounds, vaccines, newdrugs, diagnostic aids, novel or improved industrialenzymes, and crops with improved agronomic orconsumer benefits. Genetic manipulation canimprove the quality and quantity of agriculturalproduction and allows the development of plantsand animals that are disease- and pest-resistant.Agricultural output better sustains climatic hazardsand incorporates additional vitamins and nutrientsthat can enhance their consumers’ health. Theenvironment also benefits from farmers’ reduceddependence on fertilizers and herbicides, which, inturn, reduces pollution and allows farmers toreinvest their savings on increasing production.This leads to increased food security for the world’sincreasing population. Finally, efficiencies made

possible by GMOs could reduce the area of landdedicated to agriculture, leaving more habitats andecosystems undisturbed and preservingbiodiversity.

5. GMOs, however, also pose serious risks. Geneticengineering raises issues of misuse, new healthrisks and the unintended creation of organisms orgenetic traits that may irreversibly affect the world’scomplex ecological cycle. GMOs may alsothreaten human health by giving rise to new foodallergies and unintended immune response toexisting antibiotics and medicines.

6. With regard to the environment, use of GMOsraises concerns about the possible transfer ofmodified genes to naturally occurring plant andanimal species. The effects of such transfers areunknown and uncontrollable. Of particularconcern is the effect GMOs could have on geneticdiversity in plants and animals. Large-scale farmingis another potential problem resulting fromsociety’s dependence on GMOs. Mass productionof identical plants and animals can lead to a loss ofindigenous species. Further, as agricultural outputis homogenized, it becomes more susceptible todisease and pests. This increased vulnerabilitycould rapidly outweigh the benefits of increasedfood security.

7. The production of “super crops” in higher-technology countries could have deleterious effecton the agricultural markets in countries relying onmore traditionally cultivated food. Small scalefarmers could be disadvantaged as modifiedvarieties displace traditional crops.

8. Large seed companies that develop transgenic cropvarieties have a strong interest in preventingfarmers from harvesting seed for use in the nextplanting season. In fact, some companies areactively considering the development of GMOtechnology that would genetically “switch-off” theability of a plant to re-germinate. Supporters ofGenetic Use Restriction Technology (“GURT”)view this as a way of preventing growers frompirating the GMO technology, while avoiding therisk of unintended gene flow and potentialcontamination. Detractors of GURT, however, viewit as an unnecessary and potentially exploitativebusiness scheme aimed at forcing farmers to buy anew supply of seeds each year, an expense thatmany farmers, and particularly the small scalefarmers, in the developing world cannot bear.Thus, the GURT issue pits farmers’ traditional rightsand methods against corporations’ newtechnologies and intellectual property rights.

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The Development of an International Framework onBiosafety

9. Biosafety has been a matter of concern in theinternational community since the first GMO fieldtrials took place in the 1980s. The use and releaseof GMOs into the environment, particularlytransgenic plants, has provoked debate around theworld.

10. The Organization for Economic Development andCooperation (“OECD”). In 1986, published a bookon Recombinant DNA Safety Considerations(“Blue Book”), which provided guidelines onscientific principles that could be applied in theassessment and management of risks associatedwith the development and use of GMOs. In thewake of the Blue Book, an increasing number ofsocial groups and governments began to expresstheir views in favour of adopting bindingregulations to ensure biosafety.

11. In 1990, the European Council undertook a majorstep in ensuring biosafety by adopting the firstinternational instruments regulating biotechnology.The Council issued Directive 90/219, on thecontained use of genetically modified microorganisms, and Directive 90/220, on the deliberaterelease into the environment of GMOs (“1990Directives”). Both of these Directives were issuedto underscore the European Council’s dual goals ofprotecting the environment from the potentialthreats of GMOs, while ensuring the furtherance ofbiotechnology. Later, Directive 90/220 wasrepealed and replaced by Directive 2001/18/EC.

12. The United Nations first addressed biosafety in1991, when the United Nations IndustrialDevelopment Organization issued the “VoluntaryCode of Conduct for the Release of Organisms intothe Environment” (“UNIDO Code”). The UNIDOCode was developed in conjunction with theUnited Nations Environment Programme(“UNEP”), the World Health Organization and theUnited Nations Food and AgricultureOrganization. The purpose of the UNIDO Code isto provide a framework for member countries inestablishing an international network committed tobiosafety and facilitating information exchange onthe topic.

13. At the United Nations Conference on Environmentand Development in Rio de Janeiro. In 1992,United Nations member countries emphasized theimportance of international cooperation on

biosafety, Chapter 16 of Agenda 21 specificallystresses the need to ensure safety in thedevelopment, application, exchange, and transferof biotechnology while, at the same time,recognizing the potential of GMOs to contribute tosustainable development.

14. The issue of safety in biotechnology found also itsway into the 1992 Convention on BiologicalDiversity (“CBD”). The Convention is, in fact, thefirst international legal instrument after the ECdirectives to provide for rules on biotechnology asregards its safe handling. The Convention alsodeals with the question of access to benefits arisingfrom biotechnology. Specifically its articles 16 and19 stipulate the importance of biotechnology inachieving the objectives of the Convention andhighlight how the results and benefits ofbiotechnology should be distributed. Article 19requires parties to consider the need for a protocolon biosafety. It also requires each contracting partyto provide information on the potential adverseimpact of living modified organisms that crossborders and on any available safety requirements.

15. In May 1992, in Resolution 2 of the Nairobi FinalAct in which the Convention was approved, UNEPwas invited to prioritize issues arising from theConvention, including Article 19. As a result,UNEP established a small group of experts toconsider the need for and modalities of a protocolon biosafety. The experts were generally of theview that international cooperation in the fields ofbiotechnology and biosafety would be best servedby adopting a legally binding instrument.

16. Upon entering into force in December 1993, thequestion of biosafety was included in the agenda ofthe first meeting of the Conference of the Parties tothe Convention (“COP”) of 1994. The first meetingof the COP established an open-ended ad hocgroup of experts, nominated by governments, tomeet period prior to its second meeting to considerthe need for and modalities of a protocol asenvisaged under paragraph 3 of article 19 of theConvention. This particular paragraph of theConvention marked both a conclusion and abeginning of international negotiations onbiosafety. It reflected the final compromise that theConvention negotiators managed to make then,and provided the basis for the commencement offresh negotiations by calling upon parties to theConvention to:

“consider the need for and modalities of a protocolsetting out appropriate procedures, including, inparticular, advanced informed agreement, in the fieldof the safe transfer, handling and use of any living

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modified organism resulting from biotechnology thatmay have adverse effect on the conservation andsustainable use of biological diversity.”

17. The second meeting of the COP was held in 1995,and in Decision II/5 the parties established anopen-ended ad hoc working group (“BSWG”) withthe task of negotiating a biosafety protocol.

18. The BSWG began negotiations in July 1996 andthe final text of the biosafety protocol, theCartagena Protocol on Biosafety to the Conventionon Biological Diversity, was adopted on 29 January2000 (“Protocol” or “Biosafety Protocol”). TheProtocol entered into force on 11 September 2003,having been ratified or acceded to by fifty parties tothe Biodiversity Convention. It has currently(October 2005) 127 Parties. The first meeting of theParties to the Protocol took place in February 2004in Kuala Lumpur, and the second one in May-June2005 in Montreal, Canada.

The Cartagena Protocol on Biosafety

1. General

19. The Biosafety Protocol consists of forty articles andthree annexes. The Preamble explains the genesisof the agreement and sets forth its status andrelationship with existing trade agreements. Thefirst six articles outline the Protocol’s objective,general provisions, terms and scope; the last sixarticles stipulate standard final clauses, such assignatories and entry into force. The interveningarticles outline specific requirements of theProtocol, including the procedure for advanceinformed agreement, the procedure for introducingLMOs into the food supply; risk assessment, riskmanagement, documentation, information sharingand the creation of the Biosafety Clearing-House,(“BCH”) characterization and treatment ofconfidential information, capacity-building,liability and redress, and compliance.

20. The objective of the Protocol is to contribute toensuring an adequate level of safety in the transfer,handling, and use of LMOs. Generally, the Protocolapplies to all LMOs, but excludes from theagreement certain transgenics or uses oftransgenics, including LMOs used inpharmaceuticals for humans and addressed inother international agreements or by otherinternational organizations.

21. The Protocol focuses on the obligation that requiresexporters of LMOs that are intended for directrelease into the environment to seek prior

agreement from authorities of importing countries,unless the latter agree otherwise. Importingcountries, in turn, are required to subject theseLMOs to risk assessment before they makedecisions regarding the approval or prohibition ofimports.

22. The Protocol is only one part of a broaderinternational regime on biosafety. There are anumber of other international agreements andarrangements that address various aspects ofbiosafety. For example, the International PlantProtection Convention addresses plant pest risksand invasive species issues associated with LMOs.The activities of the Codex AlimentariusCommission include the development of standardsand guidelines for genetically modified foods,including the labelling of foods derived fromLMOs. The World Organization for Animal Healthdevelops standards aimed at preventing theintroduction of infectious agents and diseasesthrough international trade in animals; it also setsstandards for vaccines, including those that aregenetically engineered.

2. Some of the Specific Requirements of the

Cartagena Protocol on Biosafety

23. The very adoption of the Biosafety Protocolunderscores the precautionary principle that runsthroughout the agreement. In regulating theinternational movement of LMOs, the Protocolseeks to prevent or mitigate risk by requiring thatexporters obtain the importing country’s prioragreement before the transgenics are introducedinto the importer’s environment.

a) Advance Informed Agreement Procedure

24. Central to the Protocol is the Advance InformedAgreement (“AIA”) procedure that is defined inarticles 7, 8, 9, 10 and 12. While article 7 of theProtocol defines the scope of the AIA procedure,the actual procedural rules are described in articles8 to 10 and 12 of the Protocol. According to theserules, the party of export or the exporter is obligedto notify in writing and to provide minimuminformation to the party of import, prior to the firstshipment of any given type of LMO intended forintroduction into the environment of the party ofimport. The party of import then has 90 days toacknowledge receipt of the notification. The partyof import also has to inform the notifier, whether itintends to proceed with the Protocol’s decisionprocedure, or according to its domestic regulatoryframework.

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25. The decision procedure works as follows: a riskassessment must be carried out for decisions madeon the import of LMOs. The exporter has to carryout the risk assessment or bear its cost if the partyof import so requires. Within 90 days ofnotification, the party of import must inform thenotifier that either it will have to wait for writtenconsent, or that it may proceed with the importwithout written consent. If the requirement is towait for written consent, the party of import has270 days from the date of receipt of notification tocommunicate, in writing, its decision. The decisioncould be either to:- Approve the import and add conditions as

appropriate, including conditions for futureimports of the same LMO;

- Prohibit the import;- Request additional information; or- Extend the deadline for response by a defined

period.

26. A party of import may, in light of new scientificinformation, review and change a decision at anytime and also a party of export or a notifier(exporter) may request the party of import to reviewits decisions. The purpose of this procedure is toensure that importing countries have theopportunity to assess risks associated with the LMObefore agreeing to its import.

27. The importing country may also take into accountsocio-economic considerations as specified by theProtocol, when making its decision to import.Several developing countries consider thispossibility to include socio-economic risks intodecision taking process as important. They believethat the introduction of a certain LMO might resultin considerable risks for local farmers, and national

economies, which are based to a large extent onagriculture and biodiversity. The reference tosocio-economic considerations also allows for therecognition of the value of biodiversity toindigenous and local communities and thusresonates with the strong link between biodiversityconservation and the recognition and protection oftraditional knowledge, innovations and practicesas provided for under article 8(j) of the Convention.

28. The Protocol’s AIA procedure does not apply to: - Pharmaceuticals for humans that are addressed

by other relevant international agreements ororganizations;

- LMOs in transit to a third party;- LMOs destined for contained use (in a

laboratory or other containment facilities only);- LMOs intended for direct use as food, feed or

for processing (LMO-FFP);- LMOs that have been declared safe by a

meeting of the parties to the Protocol.

b) LMOs intended for Direct Use as Food, Feedor for Processing

29. LMOs intended for direct use as food, feed or forprocessing (“LMOs-FFP”) represent a largecategory of agricultural commodities. They are notsubject to the AIA procedure but are covered by aseparate, less restrictive procedure outlined inarticle 11 of the Protocol.

30. A party making a decision approving an LMO thatmay be subject to transboundary movement fordirect use as food or feed, or for processing, for adomestic use, including releasing it into the market,must inform others through the Biosafety Clearing-House, within 15 days of its decision. Other

Comparative Summary of the AIA and Article 11 procedures

Features

LMOs covered

TriggerActors

Obligations1. Provision ofinformatıon;2. Observing timelimits;

3. Ensuringconsistency

The AIA procedure

Those destined for intentional introductioninto the environmentNotification• Party of export • Exporter• Party of import

• Annex I

• Acknowledge receipt of notification (90days). Communicate decision (270 days)

• Consistent with the Protocol

Article 11 Procedure

Those intended for direct use as food, feed, or forprocessingInformation• A party making decision to release (for domesticuse, including placing on the market)•A potential party of import

• Annex II

• No general requirement exists• Developing countries and countries witheconomies in transition (270 days)• Consistent with the objective of the Protocol• Any party can request for it• No detailed guidance exists• Does not imply consent or refusal

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parties, which may be importing the LMO, couldtake their own decisions regarding whether andhow to import such LMO. Decisions by parties ofimport could be taken under their domesticregulatory framework that is consistent with theobjective of the Protocol. A developing countryparty or a party with an economy in transition may,in the absence of a domestic regulatory framework,declare through the Biosafety Clearing-House thatits decisions on the first import of LMOs-FFP will betaken in accordance with risk assessment as set outin the Protocol. In case of insufficient relevantscientific information and knowledge, the party ofimport may use precaution in making its decisionon the import of LMOs-FFP.

c) Risk Assessment and Risk Management

32. Prohibiting or restricting the import of LMOs is atrade measure. In order for a trade measure takenwith a view to help protect human, animal or plantlife within the importing country to be WTOcompatible, it should conform to the 1995 WTOAgreement on the Application of Sanitary andPhytosanitary Measures (“SPS Agreement”). Anysuch measure, in order to be in conformity with theSPS Agreement, should adopt an internationallysanctioned standard or should be based on riskassessment. The first clause in the decisionprocedure of the Protocol regarding whether toimport LMOs for introduction into the environmentestablishes that such decisions shall be taken inaccordance with risk assessment, which seems tobe in accord with the SPS Agreement. The Protocoldescribes how risk assessment should be carriedout and further provides for its parameters.

33. Parties to the Biosafety Protocol are required toestablish and maintain appropriate riskmanagement mechanisms, measures and strategiestaking into account article 8(g) of the Biodiversity

Convention. They need to take measures to preventunintentional transboundary movements of LMOs.Risk management measures should be based onrisk assessment and imposed to the extentnecessary to prevent adverse effects of LMOs onbiological diversity and human health. In 2005,parties adopted the “Terms of Reference for the AdHoc Technical Expert Group on Risk Assessment.”

d) Information Sharing

34. The Protocol relies heavily on the sharing ofappropriate and timely information for its effectiveoperation and implementation. In order to facilitatethe exchange of information, the Protocol hasestablished a BCH as part of the clearing-housemechanism of Convention. The BCH is a system ofinformation sharing and a tool for implementation.Each Party is required to make available to theBCH information specified in several provisions ofthe Protocol. For instance, each party has to makeavailable to the BCH:

(a) Any existing laws, regulations and guidelines forimplementation of the Protocol, as well asinformation required for the advance informedagreement procedure under the Protocol;

(b) Any bilateral, regional and multilateralagreements and arrangements;

(c) Summaries of risk assessments or environmentalreviews of LMOs, including relevant informationregarding processed products of LMO origin;

(d) Final decisions regarding the importation orrelease of LMOs;

(e) Reports submitted by it pursuant to the Protocol,including those on the implementation of theAdvance Informed Agreement procedure.

At the second MOP, the Multi-Year Programmmeof Work for the Operation of the BiosafetyClearing-House was adopted.

Additional informationTypes/content ofdecision

Consequence of silenceBasis for decision

Review of decision

Simplified procedure

Mode of transaction

The party of import can request for it• Approving without conditions;• Approving with conditions;• Requesting for additional information;• Extending the time for decision taking by adefined period of time.Does not imply consent• Domestic regulatory framework;• The Protocol procedure (article 10);• Risk assessment (article 15, Annex III);• Precautionary approach,• Socio-economic considerations It is possible to review a decision

It may be applicable where there areadequate measures for safety in place Direct between the actors (bilateral)

Any party can request for itNo detailed guidance exists

Does not imply consent or refusal•Domestic regulatory framework;• Risk assessment (Annex III)-where there is nodomestic regulatory framework • Precautionary approach;• Socio-economic considerations.There is no explicit provision in this regard. But itshould be possibleThe procedure itself is meant to be simplified

Through the Biosafety Clearing-House (multilateral)

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e) Unintentional Transboundary Movement ofLMOs (article 17)

35. When a party knows of the occurrence of anunintentional transboundary movement of LMOsthat is likely to have significant adverse effects onbiodiversity and human health, it must notifyaffected or potentially affected states, the BCH andrelevant international organizations and giveinformation on the unintentional release. Partiesmust start immediate consultation with the affectedor potentially affected states to enable them todetermine response and emergency measures.

f) Identification of LMOs

36. The Biosafety Protocol provides for safe handling,transport, packaging and identification of LMOs.Each party is required, among other things, to takemeasures to identify LMOs as “LMOs” indocumentation accompanying transboundaryshipments. The specific documentationrequirements are defined in the Protocol inaccordance with the intended use of the LMO. Inthis regard, it is important to note that there aresome existing documentation requirements underother regimes that are relevant to some types ofLMOs. For example, the United Nations ModelRegulations on the Transport of Dangerous Goodsspecify documentation requirements for certaincategories of genetically modified micro-organisms. Depending on the existence of needand appropriate modalities, there is also apossibility of developing standards foridentification, handling, packaging and transportpractices involving LMOs, under the Protocol inthe future, by the CoP serving as the meeting of theparties to the Protocol.

g) Confidential Information (article 21)

37. Each party is required to protect confidentialinformation received under the Protocol andidentified as such by the notifier. Each party has toput in place procedures to protect and treat suchinformation in no less favourable manner than ittreats confidential information in connection withdomestically produced living modified organism.The party of import shall not use confidentialinformation for commercial purposes without thewritten consent of the notifier. The Protocol doesnot allow the notifier to identify or withhold, asconfidential, any information relating to: (a) thename and address of the notifier; (b) generaldescription of the living modified organism; (c)summary of risk assessment; and (d) methods andplans for emergency response.

h) Capacity Building (article 22)

38. Capacity building is one of the subjects addressedby the Protocol. The preamble recognizes the factthat many countries, particularly developingcountries have limited capabilities to cope with thenature and scale of known and potential risksassociated with LMOs. In that regard, the Protocolrequires the parties to promote internationalcooperation to help developing countries andcountries with economies in transition tostrengthen human resources and institutionalstructure in biosafety. Parties are encouraged toassist with scientific and technical training and topromote the transfer of technology, know-how andfinancial resources. Parties are also expected topromote private sector involvement in capacitybuilding. The second MOP in 2005 adopted the“Terms of Reference for the ComprehensiveReview and Possible Revision of the Action Plan forBuilding Capacities for the EffectiveImplementation of the Protocol”.

i) Public Awareness and Participation (article 23)

39. The Protocol requires and encourages parties toinform and involve their public in matters relatingto living modified organisms. More specifically,parties are required to promote and facilitate publicawareness, education and participation, includingaccess to information concerning the safe transfer,handling and use of LMOs. The public has to beconsulted in the decision-making process and theresults of such decisions should be made availablein accordance with domestic legislation and with arespect to confidential information as provided forin the Protocol. The Protocol further requiresparties to promote and facilitate public access toinformation on LMOs that may be imported, aswell as access to the Biosafety Clearing-House.

j) Compliance Procedures and Mechanisms(article 34)

40. The Biosafety Protocol anticipates the adoption ofprocedures and institutional mechanisms topromote compliance and to deal with cases of non-compliance by the Conference of the Partiesserving as the meeting of the Parties to the Protocol.The procedures are already determined to becooperative ones (as opposed to confrontational)that shall include provisions to offer advice orassistance for those parties that may be faced withdifficulties to comply with the obligations of theProtocol. The compliance procedures are requiredto be separate from, and without prejudice to, thedispute-settlement procedures and mechanismsestablished by the Convention. These procedures

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have been adopted by the first meeting of theparties to the Protocol. A Compliance Committeehas also been established by a decision of the samemeeting to implement or oversee the procedures.The second meeting adopted the “Rules ofProcedure for the Meetings of the ComplianceCommittee under the Cartagena Protocol onBiosafety.”

k) Liability and Redress (article 27)

41. The Biosafety Protocol commits the first meeting ofthe parties to put in place a process to elaboraterules and procedures on liability and redress fordamage resulting from the transboundarymovements of LMOs. It sets a desirable period offour years for completion of this task. The provisionreflects the compromise that was possible at theend of the negotiations of the Protocol between theopposing views of some who sought to havedetailed rules of liability and redress in the Protocolon the one hand, and those who wanted to see noprovision at all concerning liability and redress, onthe other. The parties to the Protocol agreed, attheir first meeting, on the nature and timetable ofthe process envisaged in the Protocol. An open-ended ad-hoc working group of legal and technicalexperts is established to carry out the process inaccordance with its terms of reference provided inDecision BS-I/8.

l) Transboundary Movement of LMOs with Non-Parties

42. The Protocol addresses the obligations of theparties in relation to transboundary movements ofLMOs to and from non-parties to the Protocol.Movements between parties and non-Parties mustbe carried out in a manner that is consistent withthe objective of the Protocol. Parties are required toencourage non-parties to adhere to the Protocoland to give relevant information to the BCH.

m) Administration of the Biosafety Protocol

43. The governing body of the Protocol is the COP tothe Convention serving as the meeting of theparties to the Protocol (“COP-MOP”). Its mainfunction is to review the status of implementationof the Protocol and to make decisions necessary topromote its effective operation. Only parties cantake decisions under the Protocol. Parties to theConventions that are not parties to the Protocolmay only participate as observers in theproceedings of meetings of the COP-MOP. TheCOP-MOP may decide to use any subsidiary bodyestablished by or under the Convention, orestablish its own subsidiary bodies as deemed

necessary for facilitating the implementation of theProtocol. The Secretariat of the Convention servesalso as the Secretariat to the Protocol.

44. At the national level, each party needs to designatea national focal point to be responsible forexchange with the Secretariat. The functions willinclude, for example, receiving notifications ofmeetings relating to the Protocol from theSecretariat and invitations to submit views onmatters under discussion. Each party also has todesignate at least one competent national authorityto perform the administrative functions as requiredby the Protocol. It shall be authorized to act on theParty’s behalf with respect to those functions,which may be dependent on the type of LMO(s),for which the authority is responsible. A party maydecide to combine the functions of both focal pointand competent national authority in oneinstitution. A list of focal points and competentnational authorities is maintained by the Secretariatand is available in the BCH.

3. Relationship of the Cartagena Protocol on Biosafetywith other Agreements

45. The relationship between environmental treaties,which prohibit trade in certain goods or allowparties to ban certain goods on environmentalgrounds, on the one hand, and the trade regime,which seeks to restrict non-tariff barriers to trade,on the other, is increasingly becoming important.The World Trade Organization agreements such asthe General Agreement on Tariffs and Trade(“GATT”), Agreement on the Application ofSanitary and Phytosanitary Measures (“SPS”) andthe Agreement on Technical Barriers to Trade(“TBT”), contain provisions relevant to theCartagena Protocol. The final text of the Protocolhas not settled, in a definitive way, the question ofhow it relates to the WTO and other internationalagreements. However, in its preamble, the Protocolstates that parties: - Recognize that trade and environment

agreements should be mutually supportive; - Emphasize that the Protocol is not interpreted

as implying a change in the rights andobligations under any existing agreements and

- Understand that the above recital is notintended to subordinate the Protocol to otherinternational agreements.

46. Conflict may well arise over how partiesimplement the provisions of the Protocol. Forinstance, WTO rules impose strict limitations onthe use of precautionary trade measures. However,a party to the Protocol might decide, based on asmall amount of scientific evidence, to ban imports

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of, say genetically modified tomatoes, arguing thatit is allowed to do so under paragraph 8 of article11. In the first place this raises a question ofjurisdiction. It may lead to the question of wheresuch disputes should be dealt with or adjudicated.The WTO’s Committee on Trade and Environmenthas expressed its preference for disputes arisingfrom a Multilateral Environmental Agreement(“MEA”), to be handled within the properframework of the latter. However, if the claimant inthe example above asserts that the basis of thedispute is not a violation of the rules of the Protocolbut that of WTO, then it is likely that the disputemight be handled under the WTO DisputeSettlement Procedure.

47. The last paragraph of the Protocol, which statesthat the Protocol is not intended to be subordinateto other international agreements, is veryimportant. This language appears to be relativelystrong as compared to a similar one used inanother MEA adopted prior to the Protocol. Thus,in case a dispute over the implementation of theProtocol is brought to the WTO, it would be verydifficult for the dispute panel to ignore theProtocol’s wording even if the same preamblesimultaneously states that the Protocol will not beinterpreted as changing the rights and obligationsof a party under any existing agreements. In anyevent, like any other agreement, reasonableinterpretation of the Protocol depends on theunderstanding of its context, which includes thetext, the preamble and its annexes.


48. As a party to the Protocol, a country is expected toput in place domestic implementing legislation thatwill allow it to adhere to the terms of theinternational agreement. This section presents theprogrammes of Indonesia, Australia, and Cuba, asexamples of national biosafety frameworks. Seeunder chapter 2 above as well of which this part isa reinforcement.

49. The number of countries that have ratified oracceded to the Protocol is growing. Each countryjoining the Protocol, as a party, is required to takenecessary legal and administrative measures toimplement its obligations under the Protocol. Asimplied in the previous section, the design andimplementation of biosafety frameworks atnational level should take into account not only theProtocol, but also a range of issues and concernsaddressed by other regimes that have relevance tobiosafety.

Some Examples of National Experiences in theDevelopment and Implementation of Biosafety

Frameworks

1. Indonesia

50. As one of the centres of mega biodiversity,Indonesia seeks to utilize its immense biologicalresources in a sustainable manner as well as todevelop biotechnology. Indonesia has placed ahigh priority on the development of biotechnologysince 1985 in order to address the need forsufficient food production in a more sustainableand performing agricultural system. It ratified theCartagena Protocol in December 2004.

51. Indonesia established a national committee forbiotechnology in 1993 at the State Ministry forScience and Technology. The purpose of thecommittee is to formulate policies andprogrammes relating to biotechnology which areoverseen through a system of four national centresfor excellence in agriculture and industrial andmedical biotechnology. As a result of this initiative,Indonesia now has plant transformationprogrammes carried out at public and privateresearch institutes, a public university, and anindustrial laboratory.

52. Indonesia’s biotechnology efforts are focused on along-term strategy that involves drug discovery,genomics, conservation of germ plasma, geneticimprovement of agricultural output, and marineand environmental biotechnology.

53. In 1993 the State Ministry on Research andTechnology released guidelines for geneticengineering research, which control research ofGMOs/LMOs. The guidelines include specificprovisions that cover plants, cattle, fish andmicrobes.

54. Further it adopted biosafety regulations in 1997,through the Decree for Genetically EngineeredAgricultural Biotechnology Products (the“Biosafety Decree”). The Biosafety Decreeestablished Indonesia’s Biosafety Commission,which advises the government on the safe releaseof GMOs/LMOs. The Biosafety Decree alsocreated an expert technical team to assist theBiosafety Commission in the evaluation andimplementation of procedures around the releaseof GMOs/LMOs.

55. Based on the early experience of the BiosafetyCommission, the Ministries of Agriculture, EstateCrop and Forestry, Food, and Health issued, in

1999, a joint agreement expanding the scope of theBiosafety Decree to food safety. In that year,Indonesia also adopted specific food safety lawsand regulations, including mandatory labelling ofgenetically engineered food.

2. Australia

56. The centerpiece of Australia’s national biosafetyframework is the Gene Technology Act of 2000(“Gene Act”), which came into force on 21 June2001. The Gene Act introduced a new regulatorysystem for GMOs in Australia, which replaced thecountry’s previously voluntary system. The purposeof the Gene Act is “[to protect the health and safetyof people, and to protect the environment, byidentifying risks posed by or as a result of genetechnology, and by managing those risks” throughthe regulation of GMO transactions.

57. The Gene Act encompasses all GMO activitiesundertaken in Australia, from contained research tointentional release into the environment. Theregulatory system uses a science-based approachto risk assessment and management, whileallowing for the consideration of socio-economicand ethical issues. It has to be noted that Australiahas not signed or ratified the Cartagena Protocol.

58. Key functions of the Gene Act include:

• Prohibition of GMO-related activities unlessthey are undertaken in accordance with thelegislation (e.g., the intentional release of aGMO into the environment requires a permit);

• Establishment of a process for assessing the risksto human health and the environment posed byGMOs;

• Provision for extensive public participation inany programme related to GMOs;

• Establishment of the Gene TechnologyRegulator (the “Gene Regulator”) to administerthe Gene Act;

• Establishment of a scientific advisorycommittee, an ethics committee and acommunity consultative committee to advisethe Gene Regulator;

• Provisions for monitoring and enforcement ofthe Gene Act; and

• Creation of the Record of GMO and GeneticallyModified Product Dealings, a centralized,publicly available database of all approvedGMOs and genetically modified products(“Gene Database”).

59. Through the Gene Act, the Gene Regulatorassesses GMO applications and issues licences forthe intentional release of transgenics into the

environment. If the Gene Regulator believes thatsuch release may pose a significant biosafety risk,he must invite public comment through thepublication of a notice in the CommonwealthGazette, relevant newspapers and on the websiteof the Office of the Gene Regulator. The GeneRegulator must then prepare a draft risk assessmentand management plan, taking into account anypublic comment received, as well as any inputfrom the Gene Technology Technical AdvisoryCommittee, the Federal Environment Minister,relevant local councils, and state and territorygovernments. Once developed, the risk assessmentand management plan is again submitted for publiccomment and, following the appropriate period,the Gene Regulator may approve the applicationand issue a licence. The public must again benotified of the Gene Regulator’s final decision.

60. The Gene Act provides the Gene Regulator withextensive inspection, monitoring, and investigativeauthority over approved GMO licencees. TheGene Regulator conducts inspections of at least20% of all field trial sites annually to ensure thattransgenic crop field trials are being conducted inaccordance with conditions contained in theunderlying licence. Monitoring activities confirmthe exact location of the approved field trial andthe condition of any buffer zones used to isolate theGMO crop. The Gene Regulator also monitorspast field trial sites to ensure that the GMO fieldtrial crop has been eradicated.

3. Cuba

61. Cuba initiated its national biosafety framework in1984 and, in 1996, formalized its regulationsthrough Ministerial Resolution 67/96, whichestablished the National Biosafety Centre (“CNSB”)under the Ministry of Science, Technology and theEnvironment (“CITMA”). It ratified the CartagenaProtocol in September 2002.

62. Under Resolution 67/96, CNSB’s purpose is toorganize, direct, implement, supervise, and controlthe “national biosafety system,” including Cuba’sparticipation in relevant international biosafetyagreements. In its regulatory capacity, CNSBdevelops the legal instruments and technicalstandards necessary for the implementation andstrengthening of biosafety measures in Cuba.

63. CNSB has developed Cuba’s national biosafetystrategy, which is focused on the following goals:

• Establishment of procedures for the assessmentand issuance of authorizations for activitiesinvolving a high biological risk;

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• Preparation of a national inventory of facilitiesand areas where releases of GMOs/LMOs intothe environment occur, including aspecification of the biological agents handled atsuch facilities;

• Conduct of on-site inspections;• Development and implementation of capacity-

building programmes through the conduct ofeducational courses, development of skills andother measures, including the organization ofnational biosafety workshops;

• Establishment of technical committees onGMO/LMO food products, as well as theadoption of biosafety standards;

• Development of contingency plans andemergency procedures; and

• Compliance with the biosafety-relatedcommitments in relevant internationalinstruments to which Cuba is a party.

64. Cuba adopted the Decree-Law No. 190 (“Law190”) in 1999, as the legal basis for its nationalbiosafety framework. The objective of Law 190 isto establish the general principles regulating theuse, research, testing, production, importation, andexportation of biological agents and GMO/LMOproducts and organisms. Law 190 also establishesthe regulatory regime that guarantees Cuba’scompliance with international biosafetycommitments and sets forth measures for theprevention of accidents and environmentalprotection.

65. In addition to Law 190, Cuba’s national biosafetyframework is comprised of a number of other

legislative instruments. Resolution No. 42/99classifies biological agents and toxins that affecthuman and animal health according to their riskprofile. Resolution No. 8/2000 outlines the generalbiosafety regulations for facilities that handletransgenics and GMO/LMO products. Finally,Resolution No. 76/2000 regulates procedures forthe granting of biosafety permits and licences.

66. Working with CNSB, CITMA designs, implements,and controls national biosafety policies. Therelevant agencies of Cuba’s Central StateAdministration are required to work with CITMA toregulate GMOs/LMOs. These groups are alsoresponsible for providing public outreach and theappropriate implementation of relevant policies.

67. Law 190 charges CITMA with oversightresponsibilities for all aspects of GMOs/LMOs. Ingeneral, all entities dealing with GMOs/LMOs andgenetically modified products are subject toinspection and regulation by CITMA. CITMA’soversight authority is further defined in ResolutionNo. 8/2000.

Worku Damena Yifru, Legal Officer, BiosafetyProgramme, Secretariat of the Convention onBiological Diversity


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Resources

Internet Materials

AUSTRALIAN GOVERNMENT DEPARTMENT OF HEALTH AND AGEING, OFFICE OF THE GENE TECHNOLOGY REGULATOR, GENE

TECHNOLOGY ACT 2000 available at http://www.health.gov.au/ogtr/index.htm andhttp://www.austlii.edu.au/au/legis/cth/consol_act/gta2000162/

BIOSAFETY CAPACITY BUILDING INITATIVE, IUCN REGIONAL BIODIVERSITY PROGRAMME, ASIA available at http://www.rbp-iucn.lk/biosafety/CouStatus_Indonesia.htm

COMMONWEALTH OF AUSTRALIA CONSOLIDATED ACTS available at www.austlii.edu.au/au/legis/cth/consol_act

http://www.biodiversityasia.org/

http://www.codexalimentarius.net/web/index_en.jsp

THE CARTAGENA PROTOCOL available at http://www.biodiv.org/biosafety/default.aspx

THE CENTER FOR INTERNATIONAL DEVELOPMENT AT HARVARD UNIVERSITY, GLOBAL TRADE NEGOTIATIONS HOME PAGE,BIOTECHNOLOGY PAPERS available at http://www.cid.harvard.edu/cidtrade/issues/biotechnologypaper.html

THE WORLD CONSERVATION UNION available at www.iucn.org

Text Materials

Alexandre Kiss, Dinah Shelton, INTERNATIONAL ENVIRONMENTAL LAW, (2nd Edition, Transnational Publishers).

Cosbey, Burgiel, THE CARTAGENA PROTOCOL ON BIOSAFETY - AN ANALYSIS OF RESULTS, (IISD Briefing Note)

Louise O. Fresco, GENETICALLY MODIFIED ORGANISMS IN FOOD AND AGRICULTURE: WHERE ARE WE? WHERE ARE WE GOING?

Patricia Birnie, Alan Boyle, INTERNATIONAL LAW AND THE ENVIRONMENT, (2nd Edition, Oxford University Press).

Phillip Sands, PRINCIPLES OF INTERNATIONAL LAW, (Volume 1: Frameworks, Standards and Implementation, ManchesterUniversity Press, Manchester, 1995).

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PROTECTING AND PRESERVING MARINE BIODIVERSITY,INCLUDING THROUGH SUSTAINABLE FISHERIESChapter 17

17. PROTECTING ANDPRESERVING MARINEBIODIVERSITY,INCLUDING THROUGHSUSTAINABLE FISHERIES

I. Introduction

1. The broad subject of biological diversity, orbiodiversity, is examined primarily in chapter 15 ofthis Training Manual. This chapter provides anoverview of the international legal framework forthe protection and preservation of marinebiodiversity, including through sustainablefisheries. The focus is exclusively on biodiversity inthe marine environment, on marine biodiversity.Usage of the term (marine) biodiversity follows thedefinition laid down in article 2 of the Conventionon Biological Diversity (“CBD”). Accordingly,biodiversity does not just include diversity at thespecies-level, such as marine plants, mammals,fishes and other living organisms, but also diversityof the ecosystems of which these species are partand genetic diversity within species. Concretecomponents of biodiversity are habitats,ecosystems, communities of species and geneticmaterial. The term “marine environment” herein isused in a broad sense, and encompasses seas andoceans and its marine life, including gulfs andcoastal areas, but not inland waters. The chapterhas a special focus on marine capture fisheries(excluding therefore aquaculture) and the way inwhich these fisheries are managed in order toprotect and preserve marine biodiversity.

2. The chapter first discusses the current threats tomarine biodiversity posed by certain humanactivities. As the 2004 Kuala Lumpur MinisterialDeclaration, made within the framework of the1992 CBD, notes: “biological diversity is being lostat an unprecedented rate as a result of humanactivities.” This certainly also applies to marinebiodiversity.

3. Law, both international and national, is anindispensable tool for regulating human activitieswith the object of preventing or minimizing threatsto marine biodiversity. Section II below examinesthe current international legal regime for theprotection and preservation of marine biodiversity,with a special focus on marine capture fisheries.The international regime consists of legally bindingand non-legally binding instruments, adopted at

the global level or at the regional or sub-regionallevel. While the primary objective of many of theseinstruments may not always be the protection andpreservation of marine biodiversity, they docontribute to that objective. The discussionconcentrates on the main global and (sub-)regionalinstruments even though relevant instrumentsadopted at the bilateral level and those within theEuropean Union are certainly no less relevant.

4. Ensuring that international instruments, whetherlegally binding or not, are effective, usuallyrequires implementation at the national level andmost often by means of legislation. Section III ofthis chapter, entitled National Implementation,therefore provides examples of the way in whichstates have implemented relevant internationalinstruments through national legislation. Theseexamples are also helpful for demonstrating hownational legislation is applied to address marinebiodiversity problems.

5. Our seas and oceans cover about 70% of theearth’s surface and play important functions inmaintaining and sustaining the earth’s ecologicalbalances. The seas and oceans produce a third ofthe oxygen that we breathe, offer a valuable sourceof protein and moderates global climatic change.Marine and coastal areas are home to a widevariety of ecosystems, for example, coral reefsfound in both tropical and temperate areas, sea-grass beds and mangrove forests. Most of theseecosystems support a diverse spectrum of marinelife, ranging from top predators such as marinemammals to organisms such as algae, which are atthe bottom of the food web. Maintaining theabundance within and the biodiversity of theseecosystems is crucial for fisheries worldwide,including aquaculture. For many peoplethroughout the world, the marine environment isnot only a vital source of protein, but the activitieswhich it sustains, such as fisheries, transport andtourism, also provides them with an income.

6. The need for the protection and preservation ofmarine biodiversity is especially necessary fororganisms and habitats that are highly endemic,meaning they are found in very few places in theworld. For example, the Indian Ocean is known tohave 482 different species of coral, 27% of whichlive only at one location. Another example is theBaltic Sea, which is the largest body of brackishwater in the world and contains many uniquehabitats that support rare marine organisms.Seamounts on the deep sea-bed are known for theirendemism as well.

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7. It is not just living marine resources that arebeneficial to humans. The exploitation of non-living marine resources such as oil, gas, sand,gravel, and diamonds and other precious mineralsprovides states with substantial revenues. Thebenefits of the marine environment are also notlimited to tangible resources. Other uses includethe laying of submarine telecommunication cablesand pipelines, maritime transport, tourism andvarious types of building activities. These latterbuilding activities do not necessarily have to berelated to resource exploitation, for example by oilrigs, but could also take the form of landreclamation, artificial islands or installations forproducing energy from the water, currents orwinds. Another use of the marine environment ismarine scientific research, which has providedactual and potential benefits to all states on issuessuch as weather forecasting, the study of effects ofocean currents, and natural forces at work on theocean floor. Marine bio-prospecting is a newlyemerging use, which is aimed at identifyingapplications or uses of marine living organisms,parts thereof or their genetic material. While someregard it as marine scientific research, others preferto treat it as a resource activity.

8. Many human activities that take place on landeventually also have an impact on the marineenvironment. Industrial activity and modernagricultural practices produce many pollutants thatare either discharged directly into the marineenvironment or end up in the marine environmentthrough the atmosphere or through rivers.Examples of pollutants are agricultural chemicals,heavy metals and nuclear waste. Once in themarine environment, these pollutants can causeailments and death of living organisms, destroymarine habitats and otherwise have adverse effectson the functioning of marine ecosystems. If affectedorganisms in one way or another are consumed byhumans, serious human health concerns can alsoarise.

9. Increasing global human population in recentdecades and demographic trends of increasingpopulation densities in coastal areas pose furtherproblems to the marine environment. An estimated67% of the current global population lives on thecoast, or within 60 kilometres of the coast, and thatpercentage is still increasing. Many of the cities thatcurrently experience the highest populationgrowth, such as São Paulo, Shanghai, Hong Kong,Manila and Djakarta, are on or near the coast.These burgeoning populations do not only increasepressure on the utilization of resources in coastalareas but are also a continuously growing strain onthe marine environment due to increased human

activity both at sea and on land. The impact ofuntreated human waste alone is already a seriousconcern.

10. All of these uses, whether related to resources ornot and whether they take place on land or at sea,have an impact on the marine environment andpossibly on biodiversity. The expansion in types ofuses of the marine environment as well as theirintensity has not always been accompanied withadequate regulation at the national, regional orglobal levels. Also, if such regulation was in fact inplace, compliance has often been inadequate toprevent serious adverse consequences for marinebiodiversity. The most serious threats to marinebiodiversity are degradation and loss of habitats,overexploitation and indiscriminate fishingpractices, marine pollution, invasive alien speciesand climate change. The following paragraphsdiscuss marine biodiversity threats in relation todeforestation and mining, tourism, fishing andinvasive alien species.

11. Deforestation and mining, even if occurring manyhundreds of kilometres inland, often lead towidespread erosion and thereby large increases insediment load in coastal areas. This has smotheredcoral reefs and other coastal habitats in Indonesia,Malaysia, the Philippines, Sri Lanka and in manyother places in the world. Conversely, theconstruction of dams for hydro-electricitygeneration or for irrigation purposes has led todramatic reductions in sediment loads, but withequally severe consequences for coastalecosystems. The Nile Delta is reported to besinking at an alarming rate due to a combination oflack of sediment input, enhanced erosion andsevere reduction in nutrient load. Such problemshave led to the collapse of fisheries in many places,including in the eastern Mediterranean region.

12. As a considerable segment of tourism occurs incoastal areas, it poses a sizeable threat to marinebiodiversity. Such tourism can be land-based orvessel-based. Land-based tourism in coastal areascommonly requires permanent infrastructure, suchas hotels and marinas. The establishment of thisinfrastructure has often led to the destruction ofcritical coastal habitats such as mangrove forests,wetlands, estuaries and coral reefs. Infrastructuredevelopment is often undertaken without properevaluation of the functions and benefits of thesehabitats to local or regional ecosystem processes.Once constructed, the use of this infrastructuremay also affect marine biodiversity, for examplethrough the discharge of sewage, and tourismactivities carried out in the marine environment,such as boating, recreational fishing, diving,

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snorkelling and marine wildlife viewing. Coralreefs also suffer from extraction of coral forjewellery or souvenirs. This practice has resulted inthe extinction of red and black corals in theMediterranean and in the tropics. In Sri Lanka, reefcover is declining at an annual rate of 10% due toindiscriminate extraction methods. Vessel-basedtourism, or cruise tourism, has grown considerablyin recent decades. The environmental concerns ofthe increasing use of ever bigger vessels are largelysimilar to those of merchant ships. Once cruisevessels call in port, however, the environmentalimpact differs fundamentally. While supplyingcruise vessels with large amounts of food, freshwater and fuel, collecting and processing hugequantities of various types of garbage and receivingmany short-time visitors provides ports withfinancial benefits, these activities also lead toenvironmental and biodiversity concerns.

13. The essence of many of the problems currentlyfaced by marine capture fisheries is caused by thefundamental characteristics of marine fish, namelythat they are a common property and renewablenatural resource that moves around freely. Failureto regulate will therefore inevitably lead to over-exploitation and economic inefficiency andultimately to conflict at the national and/or theinternational level. As many fish stocks are notconfined to single regulatory areas and cannottherefore be regulated by one single authority, it isoften essential that fisheries managementauthorities cooperate in order to align theirregulatory efforts. Non-alignment will eventuallylead to declining catches in transboundary stockson both sides of a maritime boundary. As thesuccessful regulation of marine fisheries oftendepends on cooperation at the international level,the sovereign equality of states under internationallaw is often perceived as a stumbling block. As nostate, in principle, can be forced to do somethingagainst its will, international regulation may oftenbe at the level of the ‘lowest commondenominator’ and experience ‘free rider’ problems.This does not mean, as is by now widelyrecognized, that unilateral coastal State authority isa sufficient guarantee for sustainable fisheries.

14. According to figures released by the UnitedNations Food and Agriculture Organization in2002, about 50% of the world’s fish stocks are fullyexploited and about 30% are over-exploited ordepleted. However, those dramatic figures may bemisleading due to massive over-reporting by Chinaand El Niño fluctuations in the Peruvian anchovetafishery. Consequently, the true situation is probablyone of steadily declining global catches since the

late 1980s. A well-known but sad case is that of theNorthwest Atlantic cod stocks that collapsed in theearly 1990s, and have not recovered since.Collapses of populations and extinction of specieswill often bring about changes in ecosystems. Avery famous example is the North Eastern Pacificsea otter, which was hunted down to nearextinction at the end of the 19th century. As seaotters prey on urchins, and urchins feed on kelp,this resulted in a loss of many kelp beds that arecrucial habitats for fish and invertebrates. Intensivefishing activity can also lead to changes in thecomposition of fish stocks and loss of geneticdiversity.

15. Fishing can also cause the local or regionalextinction of species. For example, incidental andaccidental catches of the pre-historic Coelacanthoff the coast of the Comoros have finally broughtthe species on the brink of extinction. A form offishing that is currently highly criticized for itsthreat to biodiversity is deep-sea fishing, inparticular those fisheries that use techniques likebottom-trawling or that target seamounts. Someextremely destructive fishing practices, such asthose involving the use of explosives or poison,such as cyanide, are sometimes still used byfishermen in developing states. While this satisfiesshort-term nutrition or financial needs, suchdesperate behaviour kills many non-target species,destroys entire habitats and has severe mid-termand long-term nutrition and financial implications.Generally, by-catch of commercial uninterestingspecies, which is commonly discarded, isacknowledged to be a huge problem. Mediaattention to this problem is nevertheless frequentlylimited to by-catch of high profile species, such asmarine mammals, birds and sea turtles.

16. The intentional or accidental introduction ofaquatic organisms into the marine environment iscertainly not a new phenomenon, but has receivedcontinuously increasing attention in recent years.Intentional introduction of alien or new speciesusually occurs for perceived benefits, for exampleresource exploitation, but often overlooks the risksassociated with limited scientific knowledge aboutthe impacts of introduction. There are various so-called pathways of accidental introduction. One ofthese is by means of large merchant vessels up-taking and discharging water used for ballast tanks,which mainly serve to ensure a vessel’s stabilityonce it has offloaded its cargo. Due to the globalnature of merchant shipping, the biodiversitythreats and consequences of accidentalintroduction of alien species through ballast waterare experienced throughout the globe. For

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example, the introduction of the North Americancomb jelly by ballast water into the Black and AzovSeas has contributed significantly to the collapse offisheries, with massive economic and socialimpacts. The Caspian Sea is presently facing thesame threat.


1. Global Legally Binding Instruments

a) United Nations Convention on the Law of the Sea

17. The rapid pace of technological developmentfollowing, and in part triggered by, the SecondWorld War, effectively disclosed the ocean’s hugereserves of non-renewable resources, dramaticallyincreased fishing effort, and led to a quicklyexpanding number of large vessels and volumes ofhazardous cargo that traversed the oceans. Thiscoincided with a growing global demand forresources, a widening awareness of environmentaldegradation, and a fundamental change in thenature and composition of the internationalcommunity as a consequence of the process ofdecolonization and the Cold War.

18. Under these circumstances, the then existinginternational law of the sea was regarded asinadequate. This was partly because it was unableto deal with some of the new issues and uses of theoceans that had emerged but also because it nolonger reflected the needs and interests of thepredominant part of the international community.This created considerable friction, whichsometimes led to heated skirmishes (e.g., the ‘codwars’ between Iceland and the United Kingdombetween 1958 and 1976). The need for a legalorder for the oceans that would be both general(relating to all ocean space) and comprehensive(for covering all uses and resources) was eventuallywidely recognized. After a lengthy process ofnegotiation, this need resulted in the adoption ofthe United Nations Convention on the Law of theSea (“UNCLOS”) on 10 December 1982.UNCLOS entered into force on 16 November1994. (See also generally chapter 13 above).

19. The overarching objective of UNCLOS is toestablish a universally accepted, just and equitablelegal order - or ‘Constitution’ - for the oceans thatlessens the risk of international conflict andenhances stability and peace in the internationalcommunity. The fact that UNCLOS had, inSeptember 2005, attracted 149 parties suggests thatthis objective has been achieved. However,UNCLOS is in many ways a framework conventionthat relies on implementation at the global and

regional levels through various internationalorganizations. In the sphere of vessel-sourcepollution, for example, this implementationmandate was entrusted to the InternationalMaritime Organization (“IMO”) while fisherieswere foreseen to be managed at the regional levelthrough Regional Fisheries ManagementOrganizations (“RFMOs”). Moreover, in view of theconstantly changing needs and interests of theinternational community, UNCLOS would need tobe amended or complemented by newinternational instruments. While some of theseinstruments adopted since 1982 are closelyconnected with the UNCLOS, for others this is lessso.

20. UNCLOS is a massive treaty. It consists of 320articles in 17 separate parts and has 9 Annexes. Asa ‘Constitution for the Oceans,’ the Conventiondeals with a much broader range of issues thanthose related to marine biodiversity and sustainablefisheries, but those are not discussed in this chapter.The parts in UNCLOS have either a zonal scope ora thematic scope. The zonal scope is used for partII ‘Territorial Sea and Contiguous Zone,’ part III‘Straits used for International Navigation,’ part IV‘Archipelagic States,’ part V ‘Exclusive EconomicZone,’ part VI ‘Continental Shelf,’ part VII ‘HighSeas,’ and part XI ‘The Area.’ Of the remainingthematic parts, part XII ‘Protection and Preservationof the Marine Environment’ is particularlyimportant for this chapter and is also covered inchapter 13.

21. International law recognizes that the “territory” of astate consists of the following components: theland (including islands and rocks), internal waters,territorial sea, archipelagic waters, and the subsoilbelow and the airspace above these. A state enjoyssovereignty within its territory but beyond that astate can only have less than sovereignty, forexample sovereign rights, jurisdiction, rights orfreedoms. States can establish a territorial sea witha maximum breadth of 12 nautical miles (1nautical mile = 1,852 kilometres) measured fromthe baselines along the coast, as provided in article2. Archipelagic waters are the waters enclosed bydrawing lines around groups of islands accordingto specific conditions as provided in article 47. Acoastal state’s sovereignty within its territorial seaand archipelagic waters entitles it to all the livingand non-living resources therein. It also gives thecoastal state practically unlimited jurisdiction toprescribe and enforce its own laws and regulationswith respect to all activities occurring therein,including those by foreign ships and aircrafts. Themain exception to that jurisdiction is the right ofinnocent passage for ships of all states under article17.

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22. Coastal states are also entitled to an ExclusiveEconomic Zone (“EEZ”) with a maximum width of200 nautical miles, measured from the baselines. Intheir EEZs, coastal states have sovereign rights forthe purpose of exploring, exploiting, conservingand managing the living and non-living naturalresources, and for other economic activities(articles 55-57). These resources include those inthe water column, such as fish, and on or under thesea bed, for example abalone, oil and gas. In theirEEZs coastal states also have jurisdiction for theprotection and preservation of the marineenvironment but this can only be exercised bytaking account of the freedoms of other states in theEEZ, for instance navigation, over flight, and thelaying of sub-marine cables and pipelines.

23. In certain circumstances, coastal states have acontinental shelf that extends beyond the EEZ,sometimes even beyond 350 nautical milesmeasured from the baselines (article 76). Over itscontinental shelf, a coastal state has sovereignrights for the purpose of exploring it and exploitingits natural resources, including relevantjurisdiction. These natural resources consist of thenon-living resources of the sea-bed and subsoiltogether with sedentary species, such as clams andabalone, as provided in article 77.

24. Those parts of the sea that are not internal waters,territorial sea, archipelagic waters or EEZ, are highseas. All states enjoy the freedoms of the high seasmentioned in paragraph 22 of this chapter inaddition to the freedoms of scientific research,construction of artificial islands and fishing, exceptfor sedentary species on a coastal state’s juridical(legal) continental shelf as provided by articles 76and 77. The ‘Area’ is the sea-bed and ocean floorbeyond the coastal states’ legal continental shelves.The non-living mineral resources in the area arepart of the common heritage of mankind andsubject to an internationalized managementregime as provided by articles 1(1)(1), 133 and136.

25. UNCLOS does not only grant rights but alsoimposes obligations. Whenever the Conventionacknowledges or grants a right to states, whether intheir capacity as flag state (the state where a ship isregistered) or as a coastal state, it is commonlyfollowed by an obligation for other states to respectthese rights. In addition, UNCLOS imposesobligations on states acting in their differentcapacities that are owed to the internationalcommunity. The most important of these areobligations on the conservation and utilization ofmarine living resources, and on the protection andpreservation of the marine environment.

26. The obligations on the conservation and utilizationof marine living resources are included in part V onthe EEZ and Section 2 of part VII on the high seas,but (rather strangely) not in relation to sedentaryspecies (article 68). Articles 61 and 62 containobligations on conservation and utilization thatapply to any category of species that occurs withina coastal State’s EEZ. Article 61 requires a coastalstate to establish a Total Allowable Catch (“TAC”) toensure that the harvesting of living resources withinthe state’s EEZ is aimed at producing the MaximumSustainable Yield (“MSY”) and does not lead toover-exploitation. Serious over-exploitation oftenleads to the collapse of stocks and thereby affectsthe mid- and long-term interests of present andfuture generations. These obligations also requirethe coastal state to gather a wide range of relevantdata to ensure that the TAC is based on the bestscientific evidence available. A TAC can take manyforms, for instance a maximum amount of fish thatcan be caught, a maximum number of licensedships or a fixed fishing season. In the context of thischapter, it is important to note that article 61 doesnot just deal with targeted fish. The TAC shouldtake account of the interdependence of stocks.Therefore, the conservation measures of the coastalstate are also required to take into consideration theeffects of fisheries on associated species (by-catch)and dependent species (predator-preyrelationships), as well as environmental factors.However, these obligations still fall short of a firmobligation to engage in the recently emergingholistic notion of ecosystem-based fisheriesmanagement.

27. Article 62 contains a type of obligation that is verydifferent from that in article 61. Article 62 requiresthe coastal state to promote the objective ofoptimum utilization of the living resources in itsEEZ. In case the coastal state has insufficientcapacity to harvest the entire TAC, it must giveother states access to the surplus of the TAC. Thecoastal state is normally given compensation,monetary or otherwise, for allowing other states toharvest the surplus. In addition, under article 62(4),a coastal state’s sovereign rights in its EEZ allow thecoastal state to require foreign ships that harvest thesurplus in its EEZ to comply with a wide range oflaws and regulations. The objective of optimumutilization was inserted with concerns of globalfood security in mind. However, there are currentlyvery few stocks that are under-utilized. Article 62recognizes that the objective of optimumutilization is “without prejudice to” article 61,meaning that the objective must give way to theobligation to conserve and avoid over-exploitation.

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28. Maritime boundaries only exist on maps. They donot impede the movement of marine species andthey are also not drawn or negotiated with therange of distribution of marine species in mind. Theneed for states to cooperate in order to align theirmanagement of marine living resources with otherstates is therefore evident. Articles 63-67 lay downregimes for international cooperation for variousdifferent categories of species whose ranges ofdistribution are not confined to a single coastalstate’s EEZ. These categories are: shared stockswithin the EEZs of two or more coastal states underarticle 63(1), straddling stocks between EEZs andthe high seas under article 63(2), the highlymigratory species listed in Annex I to the UNCLOSthat are presumed to occur both in the EEZ and thehigh seas, for instance tuna species under article64, marine mammals under article 65,anadromous species, such as salmon, whichspawn in rivers but spend most of their life in themarine environment under article 66, andcatadromous species, such as certain eel species,which spawn in the ocean but spend most of theirlife in rivers under article 67. Whereas the regimesfor anadromous and catadromous species reserveharvesting for coastal states in their maritime zonesand prohibit flag states to harvest these species onthe high seas, the other regimes do not givepreference to one or the other. They essentiallyrequire the states involved to cooperate eitherdirectly or through appropriate internationalorganizations. Regional Fisheries ManagementOrganizations are currently the most widely usedvehicles for cooperative internationalmanagement.

29. Articles 116-120 in Section 2 of part VII on the highseas contain the regime for the conservation andmanagement of the living resources of the highseas. Article 116 recognizes the freedom of fishingon the high seas but makes this right explicitlysubject to the obligation to respect the rights, dutiesand interests of coastal states under articles 63(2)and 64-67, the obligation to avoid over-exploitation and cooperation with other high seasfishing states. This regime therefore also applies tostocks whose range of distribution is confined tothe high seas (discrete high seas stocks). Article 119repeats many of the obligations that are also laiddown in article 61 on the EEZ. For instance, thoseon the objective of MSY, science-basedmanagement and taking account of the effects onassociated and dependent species andenvironmental factors.

30. The obligations in UNCLOS on the protection andpreservation of the marine environment are largelylaid down in part XII. It commences with article

192, which lays down a, by now, universallyaccepted legal norm: “states have an obligation toprotect and preserve the marine environment.”This is immediately followed by the overarchingobjective of sustainable development, whichrequires a balancing of economic, social andenvironmental considerations for present andfuture generations. It reads: “states have thesovereign right to exploit their natural resourcespursuant to their environmental policies and inaccordance with their duty to protect and preservethe marine environment.” Part XII does not define‘their natural resources.’ To determine what theseare and which states have sovereign rights orfreedoms over them, it is necessary to go back tothe zonal parts of UNCLOS.

31. Part XII deals with ‘pollution of the marineenvironment’. This term is defined in article 1(1)(4).Pollution as an activity is obviously very differentfrom fishing. The object of fishing or hunting formarine mammals is expressly aimed at removingspecies from the natural environment. Ifunregulated, this intentional activity will thereforepose a risk to marine biodiversity. In addition,fishing activities may have side-effects that are notexpressly intended, for instance by-catch ofcommercially uninteresting species that arediscarded, or bottom trawling that has negativeeffects on the ecosystem. The actual object ofpollution, on the other hand, is to get rid ofsubstances or energy but not to causeenvironmental damage or pose a threat to marinebiodiversity, even though it may have that effect.

32. Chapter 13 above discusses how UNCLOS dealswith pollution of the marine environment. WhileUNCLOS does not embrace the notion or objectiveof marine biodiversity, or even define ‘marineenvironment,’ the definition of ‘pollution of themarine environment’ encompasses “harm to livingresources and marine life.” Whereas measures toprevent, reduce or control pollution of the marineenvironment are undeniably also beneficial to theprotection and preservation of marine biodiversity,they are not often specifically designed for thatpurpose. Rather, these measures are intended toprotect and preserve the marine environment ingeneral.

33. Two provisions in part XII are exceptions to thisgeneral rule. First, article 194(5) requires all states,when they take measures to prevent, reduce orcontrol pollution of the marine environment, to“include those (measures) necessary to protect andpreserve rare or fragile ecosystems as well as thehabitat of depleted, threatened or endangeredspecies and other forms of marine life.” Measures

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would be required in relation to any source ofpollution, for example pollution by ships throughdumping and operational discharges, from land(through rivers) or from the exploitation of the non-living resources on the sea-bed. Second, article196(1) requires states to “take all measuresnecessary to prevent, reduce and control pollutionof the marine environment resulting from … theintentional or accidental introduction of species,alien or new, to a particular part of the marineenvironment, which may cause significant andharmful changes thereto.” It seems that the words“resulting from” are intended to qualify theintroduction of new or alien species as ‘pollution ofthe marine environment’or at least that it be treatedas such. Regardless of the correctness of thisinterpretation, article 196(1) clearly imposes anobligation on states to prevent, reduce and controlsignificant and harmful changes to the marineenvironment caused by the introduction of new oralien species. It is noteworthy that the IMO 2004Ballast Water Convention, discussed below inparagraphs 49-50 of this chapter, does not refer topollution.

b) Fish Stocks Agreement and other Developments

34. Even though UNCLOS was intended to be aConstitution for the Oceans, this did not mean thatit was cast in stone. It was understood that theneeds and interests of the international communitywould be constantly changing and that UNCLOShad to be adjusted accordingly. One suchadjustment already took place before UNCLOSentered into force in 1994. The adjustmentconcerned the regime for the exploitation of thedeep sea-bed in the area in part XI of UNCLOS. Animportant group of developed states that wereexpected to actually engage in such exploitation,including the United States, was dissatisfied withthe regime. As these dissatisfied states weretherefore unlikely to become parties to UNCLOSand would thereby effectively block universalacceptance and effectiveness, an ImplementationAgreement was adopted in 1994 that met theirconcerns. This Agreement allowed for the currentnear-universal participation in UNCLOS.

35. In the early 1990s, the international communityagreed that something needed to be doneconcerning international cooperation in theconservation and management of straddling fishstocks and highly migratory fish stocks. Thiseventually led to the adoption of the UnitedNations Agreement for the Implementation of theProvisions of the United Nations Convention onthe Law of the Sea of 10 December 1982 relatingto the Conservation and Management of Straddling

Fish Stocks and Highly Migratory Fish Stocks(“1995 Fish Stocks Agreement”) in New York, on 4August 1995. The 1995 Fish Stocks Agreemententered into force on 11 December 2001, and hascurrently 56 parties (as of September 2005). The1995 Fish Stocks Agreement only deals withstraddling and highly migratory fish stocks, andtherefore not with the other categories of species inarticles 63(1) and 65-68 and discrete high seasspecies. However, some of the provisions andconcepts in the 1995 Fish Stocks Agreement wouldbe very useful for the international managementand conservation of some of these categories ofspecies as well. Some of these provisions couldeven be argued as already being part of customaryinternational law.

36. The 1995 Fish Stocks Agreement does notfundamentally change the balance of rights ofUNCLOS between coastal states and states that fishon the high seas. As the full title of the Agreementreveals, it implements certain provisions ofUNCLOS. While building on the balance of rightsof UNCLOS, it makes the obligations of statesbroader, stronger and more detailed. In addition,part VIII of the 1995 Fish Stocks Agreementcontains a robust dispute settlement procedurewhich is largely linked to the similarly robustprocedure of UNCLOS.

37. The widening of the obligations is, among otherthings, evident in the obligation to apply theprecautionary approach and to protect marinebiodiversity under articles 5(c) and 5(g) of theAgreement. The precautionary approach isdescribed in article 6, noting that “The absence ofadequate scientific information shall not be used asa reason for postponing or failing to takeconservation and management measures.” Theremainder of the provision, as well as Annex II,give states very detailed guidance on how theprecautionary approach needs to be implemented.The 1995 Fish Stocks Agreement places marinecapture fisheries in a much wider context incomparison with UNCLOS. In addition to the needto take account of associated and dependentspecies, paragraphs (d), (e) and (f) of article 5require states to take account of a wide range ofecosystem considerations, for instance assessingthe impacts of non-fisheries activities on targetstocks, minimizing pollution, waste, discards,catch by lost or abandoned gear and catch of non-target species. Together, the provisions requirestates to pursue a much more holistic approach tofisheries management. This is undoubtedly asignificant advance of international law, eventhough the real litmus test remains, as always,implementation at the national and regional level.

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38. The strengthening of obligations is, among otherthings, reflected in the concept of compatibility.Accordingly, article 7 stipulates that theconservation and management measures that thecoastal state applies in its EEZ with respect tostraddling and highly migratory fish stocks shouldbe compatible with the conservation andmanagement measures applied by states fishing onthe high seas for those stocks. Moreover, article 8firmly recognizes the role of the Regional FisheriesManagement Organizations (“RFMOs”) asinternational vehicles for fisheries governance.Only states that are members of RFMOs or thatcooperate with them “shall have access to thefishery resources” (paragraph (4)). While this is atreaty provision that applies in principle onlybetween states that are parties to the 1995 FishStocks Agreement, many RFMOs already takemeasures against non-cooperating states.

39. Article 312 of UNCLOS contains a procedure forthe amendment of the Convention that can be usedafter it has been in force for ten years. As the article312 procedure has become available in 2004, theinternational community is currently looking atissues that would be suitable for such a procedure.It should be observed, however, that the twoimplementation agreements of 1994 and 1995show that there are alternatives to this procedure.Regarding marine biodiversity, there were alreadysome calls to negotiate a more comprehensiveregime to ensure high seas biodiversity or a morespecific regime for high seas fishing or deep-seafishing, as well as a specific instrument onbiodiversity and genetic resources of the deep sea-bed.

c) Convention on Biological Diversity

40. The Convention on Biological Diversity (“CBD”)was negotiated under the auspices of UNEP,adopted in 1992 and entered into force on 29December 1993. It has 188 parties (as ofNovember 2005), therefore, its application is evenmore universal than UNCLOS. CBD is one of theoutcomes of the United Nations Conference onEnvironment and Development, held in Rio deJaneiro in 1992, and establishes a global legallybinding framework for the conservation ofbiodiversity, the sustainable use of its componentsand the fair and equitable sharing of the benefitsarising out of the utilization of genetic resources.Since the Convention on Biological Diversity isexamined in Chapter 15 above, this chapter’sdiscussion focuses on the applicability of CBD tomarine biodiversity, as well as relevantimplementation efforts by its governing body, theConference of Parties (“COP”) and its SubsidiaryBody on Scientific, Technical and TechnologicalAdvice (“SBSTTA”).

41. The applicability of CBD to marine biodiversity isprimarily determined by articles 4 and 22. Article22 on ‘Relationship with other InternationalConventions’ stipulates in paragraph (1) that theConvention shall not affect rights and obligationsunder other existing international agreementsexcept where their exercise “would cause a seriousdamage or threat to biological diversity.” Paragraph(2) determines that parties to the CBD “shallimplement this Convention with respect to themarine environment consistently with the rightsand obligations of States under the law of the sea.”Whereas paragraph (1) could be regarded asestablishing the supremacy of biodiversityobligations, paragraph (2) ensures that thissupremacy does not affect the balance betweenrights and obligations (or jurisdictional balance)within the law of the sea, most importantlyUNCLOS. It does not say that the rights andobligations under the law of the sea are notconstrained by the supremacy of biodiversityobligations; which they are! But the threshold of“serious damage or threat” ensures that thissupremacy is not automatic. The manner in whichthey are constrained is indicated by article 4 on‘Jurisdictional Scope’. This provision effectivelydistinguishes between ‘areas within the limits ofnational jurisdiction’ and beyond.

42. Beyond the limits of national jurisdiction, inter alia,the high seas and the area, only the CBD provisionson processes and activities carried out under thejurisdiction or control of states are applicable.Fishing on the high seas is an obvious example ofsuch an activity. Flag states that become parties tothe CBD thereby accept certain obligations inrelation to fishing by their nationals, both naturaland juridical, and vessels on the high seas. Thelimitation mentioned at the outset is a significantone as the CBD’s obligations on processes andactivities contained in articles 3, 5, 7(c) and 8(l) arenot very specific. Article 3 obliges states “to ensurethat activities within their jurisdiction or control donot cause damage to the environment of otherStates or of areas beyond the limits of nationaljurisdiction.” The wording of this obligation issimilar to that in article 194(2) of the UNCLOSConvention. However, the biodiversity-focus of theCBD means that the term “environment” has abroader meaning here in comparison with theUNCLOS Convention. The obligation has thereforebroadened as well. Article 7(c) of the CBD requiresstates to “identify processes and categories ofactivities which have or are likely to havesignificant adverse impacts on the conservationand sustainable use of biological diversity, andmonitor their effects through sampling and othertechniques.” Article 8(l) requires states to regulateor manage processes and activities where asignificant adverse effect on biological diversity has

been determined pursuant to article 7. These threeprovisions are complemented by article 5, whichobliges states to cooperate “in respect of areasbeyond national jurisdiction and on other mattersof mutual interest, for the conservation andsustainable use of biological diversity.”

43. In areas within the limits of national jurisdiction,which, inter alia, include the EEZ and the legalcontinental shelf, the provisions of the CBD arefully applicable. That is, they apply to componentsof biodiversity (for example a particular species orhabitat) as well as to processes and activitiescarried out under the jurisdiction or control ofstates. With regard to processes and activities, theobligations identified in paragraph 42 of thischapter are applicable. Regarding components ofbiodiversity, the provisions of the CBD apply inprinciple in a similar way to the marineenvironment as to the terrestrial environment. Thediscussion in chapter 15 above would therefore bejust as relevant to the maritime zones of coastalstates. States are required, for example, by article 6to “develop national strategies, plans orprogrammes for the conservation and sustainableuse of biological diversity” and to integrate these,as far as possible and as appropriate, into relevantsectoral or cross-sectoral plans, programmes andpolicies. Moreover, article 7 lays downidentification and monitoring obligations, andarticle 8 obligations on ‘in-situ conservation,’ forexample, through the establishment of a network ofprotected areas where measures apply to conserveone or more components of biodiversity, or bypreventing the introduction of, controlling oreradicating alien species which threatenecosystems, habitats or species.

44. As a framework convention, the CBD neededfurther implementation efforts to tailor it toconcrete issues and to set priorities. For thispurpose, the COP has so far developed sevenThematic Programmes and fourteen Cross-CuttingIssues, which are integrated into the ThematicProgrammes. The Thematic Programme on theConservation and Sustainable Use of Marine andCoastal Biological Diversity (Jakarta Mandate) wasadopted by Decision II/10 at COP-2 (1995). Theprogramme of work for the Jakarta Mandate wasfirst adopted at COP-4 (1998) but has beenelaborated at later COPs, most recently at COP-7(2004). The programme of work aims at assistingthe implementation of the Jakarta Mandate at thenational, regional and global levels. It identifies keyoperational objectives, priority activities and time-schedules within each of the five programmeelements: (1) integrated marine and coastal areamanagement, (2) marine and coastal livingresources, (3) marine and coastal protected areas,

(4) mariculture, and (5) alien species andgenotypes. A specific work plan on coral bleachinghas been integrated into programme element (2). Atthis time, the Jakarta Mandate does not seriouslyaddress the shortcoming identified above, namelythe non-applicability of the CBD to components ofbiodiversity beyond the limits of nationaljurisdiction. However, the Decision VII/5 ‘Marineand Coastal Biodiversity, adopted at COP-7 (2004),could be seen as a modest first step to address thisin relation to the conservation and sustainable useof deep sea-bed genetic resources.

45. The cross-cutting issues that seem especiallyrelevant to the Jakarta Mandate are the EcosystemApproach, Protected Areas and Alien Species.Important COP decisions on these Cross-CuttingIssues include: Decision V/6 of COP-5 (2000)‘Ecosystem Approach’, which contains adescription (instead of a definition), offersoperational guidance and recommends theapplication of 12 principles of the ecosystemapproach; a Decision VII/11 on ‘EcosystemApproach’ adopted at COP-7, whose Annexcontains a refinement and elaboration of theecosystem approach and annotations to the 12ecosystem principles; the Decision VII/5 on‘Marine and Coastal Biodiversity’ adopted at COP-7 (2004) which gives higher priority to marineprotected areas, both within and beyond areas ofnational jurisdiction; the Decision VII/28 on‘Protected Areas (articles 8(A) to (E))’ adopted atCOP-7, whose Annex lays down a Programme ofWork on Protected Areas; and Decision VI/23 ofCOP-6 (2002) ‘Alien Species that threatenEcosystems, Habitats or Species,’ whose Annexcontains ‘Guiding Principles for the Prevention,Introduction and Mitigation of Impacts of AlienSpecies that threaten Ecosystems, Habitats orSpecies.’

46. The further implementation of the CBD at thenational, regional and global levels goals is alsoaddressed in Decision VI/26, by which COP-6adopted the Strategic Plan for the Convention onBiological Diversity (“Strategic Plan”). The StrategicPlan’s mission is “to achieve by 2010 a significantreduction of the current rate of biodiversity loss atthe global, regional and national level as acontribution to poverty alleviation and to thebenefit of all life on earth.” It also identifies variousstrategic goals and objectives. In relation tosubgoals 1.1-1.3 on international cooperation,mention should also be made of the Decision on‘Cooperation with other Conventions andInternational Organizations and Initiatives,’adopted at COP-7. The general issue ofcooperation between the CBD and otherinternational organizations is discussed in Chapter

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15 of this Manual. In the context of marinebiodiversity, the CBD cooperates with globalorganizations like the FAO and with regionalorganizations such as the OSPAR Commission (seebelow) and other regional seas agreements, as wellas with RFMOs.

d) Global Conventions on Marine Pollution

47. Chapter 13 on marine pollution discusses anumber of global conventions aimed at theprevention, reduction and control of marinepollution. As noted in paragraph 32 above,however, these conventions are not specificallyaimed at the protection and preservation of marinebiodiversity, even though their effectiveimplementation may lead to significant benefits inthat regard. There are nevertheless someexceptions to this general rule. For instance,MARPOL 73/78 uses a system of special areas inwhich more stringent discharge and emissionstandards for polluting substances apply. Thedesignation of such special areas and the morestringent standards could be justified on account ofthe need to protect marine biodiversity.

48. Also, a coastal state or a group of coastal states thathave identified an area within their EEZ wheremarine biodiversity is threatened by internationalmerchant shipping could ask the InternationalMaritime Organization (“IMO”) to designate thisarea as a Particularly Sensitive Sea Area (“PSSA”)and have one or more associated protectivemeasures applied therein. Appropriate protectivemeasures could, for instance, be the designation ofareas to be avoided or precautionary areas. Asthere is no exhaustive list of these measures, statescould propose innovatory measures as well. Mostof these measures would also be available withoutPSSA identification but not without IMO approval.In recent years, the IMO bodies with competenceto approve such protective measures haveappeared to be both pragmatic and broad-minded.This is reflected in the adoption of a ship reportingsystem aimed at avoiding ship strikes of the NorthAtlantic right whale off the Atlantic coast of theUnited States and the ‘no-anchoring area’ toprotect coral reefs in the Flower Garden BanksMarine Sanctuary in the United States EEZ in theGulf of Mexico. Neither of these measures waslinked to a PSSA.

49. In February 2004 the International Convention forthe Control and Management of Ships’ BallastWater and Sediments (“2004 Ballast WaterConvention”) was adopted within the IMO. TheConvention is made up of 22 articles and a single

Annex consisting of Regulations and twoAppendices. Pursuant to its core obligation inarticle 2(1), states are obliged to give full andcomplete effect to all provisions in order to prevent,minimize and ultimately eliminate the transfer ofharmful aquatic organisms and pathogens throughthe control and management of ships' ballast waterand sediments. Article 1(8) defines ‘harmful aquaticorganisms and pathogens’ as “aquatic organismsand pathogens which, if introduced into the seaincluding estuaries, or into fresh water courses,may create hazards to the environment, humanhealth, property or resources, impair biologicaldiversity or interfere with other legitimate uses ofsuch areas”. This explicit reference to “biologicaldiversity” is probably the first of its kind in an IMOconvention. As was already noted in paragraph 33above, the 2004 Ballast Water Convention doesnot address impacts of ballast water in terms ofpollution. This is also why it was regarded asinappropriate to lay down its substance in anAnnex to MARPOL 73/78. Treatment in thissubsection on ‘Global Conventions on MarinePollution’ is therefore not strictly correct.

50. The 2004 Ballast Water Convention, which has notentered into force yet, establishes a minimum levelof regulation for certain types of ships that carryballast water. Among other things, ships are to haveon board and implement a Ballast WaterManagement Plan, to carry a Ballast Water RecordBook and to meet ballast water managementrequirements. The latter necessitates existing shipsto meet ballast water exchange standards and newships to meet performance standards or alternativesthat offer equal levels of protection. Vessels usingthe ballast water exchange method should notdischarge ballast water within 200 nautical milesfrom the nearest land or in waters with depthslower than 200 meters and must meet an efficiencyof at least 95% volumetric exchange (RegulationsB-4 and D-1). Interestingly, article 2(3) and SectionC of the Annex allow states individually or inconcert to regulate more stringently above thisminimum level. The extent to which thisConvention contributes to global uniformity in theregulation of international merchant shippingtherefore remains to be seen. This concern isespecially pertinent as IMO conventions take along time to enter into force, and this convention isnot expected to be any different. The residualregulatory competence of states pursuant to article2(3) and Section C not only acknowledges existingmandatory and voluntary regulation but also thatfurther regulation does not have to await entry intoforce of the Convention.

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e) International Convention for the Regulation ofWhaling

51. The International Convention for the Regulation ofWhaling (“1946 ICRW”) is presently the onlyinstrument at the global level that deals specificallywith both the conservation and utilization ofmarine living resources. The Preamble to the 1946ICRW identifies this dual purpose as “to provide forthe proper conservation of whale stocks and thusmake possible the orderly development of thewhaling industry.” The ICRW was adopted on 2December 1946 and came into force on 10December 1948. The negotiation of the ICRW builton the 1937 International Agreement for theRegulation of Whaling and its 1938 and 1945Protocols. At the time of writing, there were 51states parties to the 1946 ICRW. The Scheduleattached to the 1946 ICRW and which is anintegral part of it contains the agreed definitionsand technical conservation and managementmeasures.

52. Marine mammals can be grouped together in threeorders: the Cetacea (whales, dolphins andporpoises), the Sirenia (dugongs, manatees andseacows) and the Carnivoria (sea otters and polarbears and the species belonging to the Pinnipedia(seals, sea lions and walruses)). As mostcommentators regard the species coverage of theICRW as being limited to baleen whales and largetoothed whales (paragraph I of the Schedule),smaller types of whales, such as dolphins andporpoises and species from the other orders ofmarine mammals are excluded. Many of thesespecies nevertheless fall within the coverage of theConvention on the Conservation of MigratorySpecies of Wild Animals (“CMS”). The CMS islargely a framework instrument which relies for itsimplementation on the creation of regulatoryinstruments at the regional level. In contrast withthe ICRW’s dual objectives of conservation andutilization, these regional instruments have so farbeen primarily or exclusively concerned withconservation. Chapter 14 above deals in detail withthe CMS and the regional instruments that havebeen adopted under it.

53. 1946 ICRW predates UNCLOS by several decades.It is therefore no surprise that the coverage of theICRW is not influenced by the division of theoceans in the maritime zones and the rights ofcoastal states and flag states therein as recognizedby UNCLOS. 1946 ICRW “applies to factoryships, land stations and whale catchers under thejurisdiction of the Contracting Governments and toall waters in which whaling is prosecuted by suchfactory ships, land stations and whale catchers” as

provided by article I(2). However, it should berealized that the ICRW does not affect thesovereign rights of coastal states over marinemammals in their EEZs under article 65 ofUNCLOS. This means that whether or not a coastalstate is a party to 1946 ICRW, it has a right underarticle 65 to regulate the exploitation of marinemammals more strictly than the ICRW. If, forinstance, 1946 ICRW would in the future allowcommercial whaling in the Indian Ocean, a coastalstate like India could nevertheless prohibit allwhaling within its EEZ. The reverse is not possible.That is, a party to the ICRW cannot authorizewhaling in its own EEZ by invoking article 65 ofUNCLOS if it is also legally bound to a ban onwhaling under 1946 ICRW.

54. 1946 ICRW establishes the International WhalingCommission (“IWC”) as its regulatory body. Themain duty of the IWC is to review and revise asnecessary the measures laid down in the Schedulethat governs the conduct of whaling throughout theworld. These measures, among other things,provide for the complete protection of certainspecies; designate specified areas as whalesanctuaries (for example, the Indian OceanSanctuary established in 1979 and the SouthernOcean Sanctuary established in 1994); set limits onthe numbers and size of whales which may betaken; prescribe open and closed seasons andareas for whaling; and prohibit the capture ofsuckling calves and female whales accompaniedby calves (see article V(1)). Parties to 1946 ICRWare required by article IX(1) to take appropriatemeasures to ensure the application of theprovisions of this Convention and the punishmentof infractions of its provisions in operations carriedout by persons or by vessels under its jurisdiction.This will require states to enact the necessarynational legislation.

55. As the IWC has become a highly politicized bodywhere decisions are often not just based on sciencebut also on political and cultural grounds, it isuseful to look at the ICRW’s decision-makingprocedures. Each contracting party to 1946 ICRWhas one member in the IWC and one vote, asprovided under article III(1). The IWC meets oncea year in one of its member states to amend theSchedule. The core-decisions under article V(1)must be taken by a three-fourths majority; otherdecisions are taken by a simple majority, asrequired under article III(2). There is also an‘opting-out’ procedure under article V(3), whichenables parties to avoid becoming legally bound toamendments that were adopted with the necessarymajority. This procedure currently allows, forinstance, Norway to be legally engaged in

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commercial whaling despite the generalmoratorium on commercial whaling that is inforce. The IWC is assisted by a ScientificCommittee, which assesses the status of the world’swhale stocks and offers the IWC advice on theneed for regulation. However, the IWC is notbound by that advice.

56. In the last decade, the Scientific Committee hasalso recognized the need for scientific research onthe effects of environmental change on whales.The need to place the management andconservation of whales in a broader ecosystemcontext has, among other things, led to severalworkshops (including one on the interactionsbetween whales and fish stocks), researchprogrammes, and closer cooperation with theSecretariat of the CMS and the Commission for theConservation of Antarctic Marine Living Resources(“CCAMLR”). At its 55th Annual Meeting in 2003,the IWC adopted the Berlin Initiative onStrengthening the Conservation Agenda of theInternational Whaling Commission, whichestablished a permanent Conservation Committee.The efforts of this Committee may strengthen theconservation agenda of the IWC and place whalingin a broader ecosystem context. In 2001, the IWCrecognized the importance of habitat protectionand integrated coastal zone management forwhales and urged states to take appropriate actionwithin and under relevant internationalconventions.

57. Marine mammals have relatively low levels ofreproduction and this especially holds true for largewhales. Intensive hunting therefore brings a highrisk of over-exploitation, the collapse of stocks andeven extinction. By the late 1970s, there was awell-founded concern that centuries of whalinghad brought most of the large whale species to thebrink of extinction. In 1982, the IWC eventuallyagreed to a pause in commercial whaling on allwhale stocks from the 1985/86 season onwards.This moratorium on commercial whaling has beenin effect ever since. In the meantime, the IWC hasdeveloped a Revised Management Procedure(“RMP”) which seeks to ensure that once themoratorium is lifted, sufficient account is taken ofthe high risks to over-exploitation and thereby lossto marine biodiversity. The moratorium will not belifted until the completion of the RevisedManagement Scheme (“RMS”), whichcomplements the RMP on matters of supervision,control and data-gathering to ensure that catchlimits are not exceeded. Currently, the RMSappears to be nearing completion.

58. Today, whaling still continues despite themoratorium on commercial whaling. Somewhaling is allowed for the purpose of aboriginalsubsistence whaling, for example, in Greenland,the Russian Federation, St. Vincent and theGrenadines and the United States. Moreover,Norway continues commercial whaling on thenortheast Atlantic minke whale stock after Norwayopted-out of the moratorium; and both Iceland andJapan are engaged in scientific whaling pursuant toarticle VIII of 1946 ICRW. These three states arecontinuously criticized for their whaling activities.Finally, small numbers of large whales areoccasionally taken by nationals of states that arenot parties to 1946 ICRW.

59. It is difficult to predict what will happen with theIWC in the future, even in the near future. It is hardto deny that some stocks of some of the large whalespecies would allow limited commercial whaling.Some argue, however, that even if this were true,shortcomings in monitoring and control wouldinevitably lead to excess catches of authorizedstocks and illegal catches of stocks for which themoratorium would still apply. The polarization ofthe IWC in a pro-whaling and an anti-whalingcamp is, however, more than anything caused bycultural and political factors. Some members of theIWC have openly stated that they will never agreeon a resumption of commercial whaling under anycircumstances. At the closure of the 55th AnnualIWC Meeting in 2003, a group of 17 members,including Iceland, Japan and Norway, issued astatement in which they concluded that theestablishment of the Conservation Committee andthe failure to adopt the RMS have “provoked anincreased interest in examination of alternativesthat would provide for the sustainable use ofabundant whale resources.” But as the IWC’scollapse has been predicted so often in the pastalready, only time will tell. The key to a healthyIWC lies in the diligence by which the participatingstates respect each other’s views and legitimaterights and interests in light of the overarching needfor conservation of whale species.

60. One global instrument that should not be leftunmentioned here is the Convention onInternational Trade in Endangered Species of WildFauna and Flora (“CITES”). Trade regulation byCITES can complement the efforts in the protectionand preservation of marine biodiversity of the IWCand RFMOs. Chapter 14 above deals in detail withCITES while specific aspects, such as trade, arealluded to in other chapters and in particularchapter 24 on Trade and Environment.

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2. Regional Legally Binding Instruments

a) Regional Fisheries Management Organizations

61. As most fish stocks are not confined to the maritimezones of a single coastal state, management andconservation needs to take place at the bilateral,regional or sub-regional level. The frameworkcharacter of the UNCLOS and the Fish StocksAgreement envisages this as well. Article 8 of theFish Stocks Agreement clearly confirmed theinternational community’s preference for RFMOsas the appropriate international vehicles forfisheries governance. There are currently morethan 30 international fisheries bodies. However,not all of these have a management mandate thatallows them to determine a TAC or allocate theTAC between the participating states. The fisheriesbodies established under article VI(1) and (2) of theConstitution of the United Nations Food andAgriculture Organization have, for instance, merelyan advisory role. Other bodies only have ascientific advisory role, such as the InternationalCouncil for the Exploration of the Sea (“ICES”).Table 1 lists some of the main RFMOs.

62. While all the RFMOs that are listed in Table 1 havemanagement powers, there are numerousimportant differences between them. Thesedifferences relate to, among other things, theirgeographical scope of operation, the type orcategories of species for which they havecompetence and their management andconservation mandates. To illustrate some of thesedifferences, two of these RFMOs will be discussedin more detail. These are ICCAT and CCAMLR. As

a general observation, however, many RFMOs takeaccount of associated and dependent species asrequired by the UNCLOS Convention but onlyCCAMLR and the IBSFC take a more holistic,ecosystem-oriented approach.

i. International Convention for the Conservation ofAtlantic Tunas

63. The International Convention for the Conservationof Atlantic Tunas (“1966 ICCAT”) was adopted on14 May 1966, and entered into force on 21 March1969. The 1992 Protocol with the new calculationscheme for annual financial contributions had notyet entered into force at the time of writing. Therewere 40 contracting parties to 1966 ICCAT at thetime of writing. In addition, the special statusknown as ‘Cooperating Party, Entity or FishingEntity’ was created, which was enjoyed by ChineseTaipei (Taiwan) at the time of writing.

64. The objective of 1966 ICCAT, as stated in thePreamble, is to maintain the populations of tunasand tuna-like fishes caught in the Convention Areaat levels which will permit the maximumsustainable catch, or yield for food and other

purposes. The Preamble and article IV of 1966ICCAT stipulate that the species covered by theConvention are the tuna and tuna-like species andsuch other species of fish exploited in tuna fishingin the Convention area that are not under theauspices of any other international organization.About 30 species are of direct concern, includingyellowfin, skipjack, bigeye, albacore and bluefintuna. The Convention applies to “all waters of theAtlantic Ocean, including the adjacent Seas” (such

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Table 1: Some Regional Fisheries Management Organizations

• Commission for the Conservation of Antarctic Marine Living Resources (“CCAMLR”)• Commission for the Conservation of Southern Bluefin Tuna (“CCSBT“)• General Fisheries Commission for the Mediterranean (“GFCM”) • Inter-American Tropical Tuna Commission (“IATTC”)• International Baltic Sea Fishery Commission (“IBSFC “)• International Commission for the Conservation of Atlantic Tunas (“ICCAT”)• Indian Ocean Tuna Commission (“IOTC“)• International Pacific Halibut Commission (“IPHC“)• Northwest Atlantic Fisheries Organization (“NAFO”)• North Atlantic Salmon Conservation Organization (“NASCO“)• North-East Atlantic Fisheries Commission (“NEAFC“)• North Pacific Anadromous Fish Commission (“NPAFC“)• Pacific Salmon Commission (“PSC“)• South East Atlantic Fisheries Organization (“SEAFO”)*• Western and Central Pacific Fisheries Commission (“WCPFC”)*

* Constitutive instrument in force but Commission not yet fully operational

as the Mediterranean Sea and the Caribbean Sea).There is no precise definition in terms of longitudeand latitude.

65. 1966 ICCAT establishes as its main regulatory bodythe International Commission for the Conservationof Atlantic Tunas (“Tunas Commission”). While theTunas Commission takes decisions by a simplemajority, as provided by article III(3), there is alsoan opting-out procedure under article VIII(3). TheTunas Commission works through a variety ofCommittees, Subcommittees, Working Groups andPanels, which deal with a wide range of issues,such as stock assessment, compliance andallocation.

66. The recommendations adopted by the Commissioninclude TACs, minimum size limits and vesseleffort limitations. The Tunas Commission has alsointroduced statistical documentation programmesfor swordfish, and bigeye and bluefin tuna. Theseprogrammes require contracting parties to ensurethat imports of these species are accompanied byvalidated statistical documents. The TunasCommission occasionally also imposes importprohibitions on consignments from non-complyingstates. The research mandate of the TunasCommission encompasses the oceanography ofthe environment in which the target species liveand the effects of natural and human factors upontheir abundance, as provided by article IV(1).While the Tunas Commission compiled data onby-catch, principally for certain species of sharks,there has been little progress towards ecosystem-oriented management. However, two Resolutionsadopted by the Tunas Commission in 2003 maychange this. Resolution 03-10, ‘On the SharkFishery,’ is aimed at supporting the implementationof FAO’s 1999 International Plan of Action for theConservation and Management of Sharks andrequests data on directed shark fishing carried outin the 1966 ICCAT Convention area. Resolution03-11, ‘On Sea Turtles,’ calls for data collection oninteractions between sea turtles in the TunasCommission fisheries and on impacts on sea turtlesin the 1966 ICCAT Convention area, and supportsFAO’s efforts towards a more holistic approach onthe management and conservation of sea turtles.

ii. Convention on the Conservation of AntarcticMarine Living Resources

67. The Convention on the Conservation of AntarcticMarine Living Resources (“1980 CAMLR”) wasadopted on 20 May 1980, and entered into forceon 7 April 1982. At the time of writing, there were32 parties to the CAMLR Convention, 24 of whichwere Members of the convention’s regulatorybody, the Commission for the Conservation ofAntarctic Marine Living Resources (“CCAMLR”).

68. The objective of 1980 CAMLR the “conservation ofAntarctic marine living resources,” while “the term‘conservation’ includes rational use,” as providedby article II. Paragraph (3) of article II lists the threeprinciples of conservation that are to be observedfor harvesting and other activities in the CAMLRConvention Area. Even though these principles arenot named, it is generally accepted that theyembrace ecosystem-based (fisheries) managementand a precautionary approach avant la lettre. Thisaddresses the concerns that led to the negotiationof the convention, namely that large-scale krillharvesting would threaten the Antarctic marineecosystem as a whole. In view of the relatively lowbiodiversity and the few trophic levels in theSouthern Ocean, an ecosystem approach was alogical choice and - it was probably expected - alsoa relatively feasible one. After more than 20 yearsafter 1980 CAMLR entered into force, it appearsthat this expectation was optimistic. Today,CCAMLR is nevertheless widely credited for itsefforts in ecosystem-based fisheries managementand is regarded as the leading RFMO in thisrespect. Among CCAMLR’s successes in thiscontext are its measures to minimize by-catch ofbirds, in particular albatrosses and petrels, in long-line fishing and CCAMLR’s Ecosystem MonitoringProgram (“CEMP”).

69. 1980 CAMLR applies to Antarctic marine livingresources, which are defined in article I as “thepopulations of fin fish, molluscs, crustaceans andall other species of living organisms, includingbirds, found south of the Antarctic Convergence.”Article IV recognizes the primacy of theInternational Convention for the Regulation ofWhaling and the Convention on the Conservationof Antarctic Seals in relation to whaling andsealing. The main fisheries that took place at thetime of writing targeted Patagonian and Antarctictoothfish, krill and mackerel icefish. While theestimates of the total annual removals of toothfishin recent years indicate a serious risk of over-exploitation of some or all stocks, the annualcatches of krill have remained well below theannual TAC. This is not to say that technologicalinnovations and changing market forces may notbring an end to the under-utilization of the krillresources in the future.

70. Under article I, the geographical scope of 1980CAMLR includes large areas north of the AntarcticTreaty Area (south of 60° South latitude) and isbased on an approximation of the AntarcticConvergence, which separates the warmernorthern waters from the cooler southern waters.The CAMLR Convention Area is therefore regardedas one of the few RFMOs whose regulatory arealargely overlaps with that of a Large MarineEcosystem (“LME”), with all the consequential

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advantages that should offer for ecosystem-basedmanagement. In reality, however, several speciesmanaged by CCAMLR also occur outside theConvention Area. The actual and allegedoccurrence of Patagonian toothfish outside theConvention Area has in recent years caused seriousdifficulties in combating illegal, unreported andunregulated fishing for this species.

71. CCAMLR is charged with giving effect to theConvention’s objective and principles ofconservation. The various ways by which it canfulfill its mandate are listed in paragraph (1) ofarticle IX. These include facilitating research,compiling data, adopting and reviewingconservation measures. The non-exhaustive list oftypes of Conservation Measures in paragraph (2) ofarticle IX include the designation of TACs,protected species and open and closed seasons forharvesting.

72. CCAMLR takes decisions by consensus on mattersof substance while on other matters decisions aretaken by a simple majority of the Members presentand voting as required by article XII(1) and (2). Toaccommodate members that do not want tooppose consensus, but nevertheless want to avoidbecoming legally bound by ConservationMeasures, article IX(6)(c) and (d) of 1980 CAMLRcontains an opting-out procedure. Instead ofblocking consensus, members often prefer to voicetheir informal objections and concerns inCommission Reports. Consensus decision-makingis a characteristic of the Antarctic Treaty System(“ATS”), of which CCAMLR is part. While theadvantages and disadvantages of this method ofdecision-making are well known, the prospects formajority decision-making in the ATS are especiallybleak in view of the sensitive Antarctic sovereigntyissue. A state that becomes party to 1980 CAMLRor even a Member of CCAMLR, but not party to theAntarctic Treaty, should realize that CCAMLR ismore than ‘just’ another RFMO. This is evident inarticle IV of 1980 CAMLR, which makes theagreement to disagree as laid down in article IV ofthe Antarctic Treaty applicable to states that areparties to 1980 CAMLR, and reiterates itssubstance.

73. The Commission is assisted by a ScientificCommittee, whose recommendations and advicemust be taken fully into account as provided byarticle IX(4). This leaves the Commission a marginof discretion that is quite common in RFMOs.Since 1980 CAMLR came into force, theCommission has established two permanentsubcommittees: the Standing Committee onAdministration and Finance (“SCAF”) and the

Standing Committee on Implementation andCompliance (“SCIC”). The Secretariat of 1980CAMLR is based in Hobart, Australia, which is alsothe venue for all the annual meetings of theCommission and the Scientific Committee. Thechallenges for CCAMLR in the future are likely tobe related on the one side to its ambitiouscommitment to ecosystem-based fisheriesmanagement and on the other side to dealing withillegal, unreported and unregulated fishing, whichat the time of writing was carried out by ships flyingthe flag of both parties and non-parties to 1980CAMLR.

b) Regional Seas Agreements

74. Regional seas agreements have been extensivelyexamined in Chapter 13 above with respect to theirprovisions on the protection and preservation ofthe marine environment from pollution. However,some of these agreements also have provisions thatrelate more specifically to the protection andpreservation of marine biodiversity. Two of theseare discussed below for illustrative purposes.

i. Convention for the Protection and Development ofthe Marine Environment of the Wider Caribbean

Region (Cartagena Convention)

75. The Convention for the Protection andDevelopment of the Marine Environment of theWider Caribbean Region (“Cartagena Convention”)has been discussed in detail in Chapter 13. Itestablishes a broadly oriented framework forcooperation on the protection and development ofthe marine environment of the Wider CaribbeanRegion. The Preamble to the CartagenaConvention identifies “the protection of theecosystems of the marine environment of the widerCaribbean region” as one of its principal objectivesand recognizes the need to strive for sustainabledevelopment. In furtherance of these objectives,article 10 requires parties to “individually or jointly,take all appropriate measures to protect andpreserve rare or fragile ecosystems, as well as thehabitat of depleted, threatened or endangeredspecies, in the Convention area.” This wording isclearly inspired by article 194(5) of UNCLOS.Article 10 of the Cartagena Conventioncomplements these provisions by stating, “To thisend, the Contracting Parties shall endeavour toestablish protected areas.” However, the activitiesthat would need to be regulated in these protectedareas are not indicated. Although the primary focusof the Cartagena Convention is pollution, nothingin the Convention prevents the parties fromimposing restrictions on harvesting of marine livingresources in these protected areas.

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76. Evidence of a focus that is broader than pollution isthe Protocol concerning Specially Protected Areasand Wildlife in the Wider Caribbean Region(“SPAW Protocol”). The SPAW Protocol wasadopted on 18 January 1990, and entered intoforce on 18 June 2000. While article 3(1) of theSPAW Protocol essentially repeats the obligationarticulated under article 10 of the CartagenaConvention, article 5(2) contains a long list ofactivities that should, where appropriate, beregulated. This list includes vessel-source pollution,dumping, navigation, fishing, introducing non-indigenous species, tourism, and “any othermeasure aimed at conserving, protecting orrestoring natural processes, ecosystems orpopulations for which the protected areas wereestablished.”

ii. OSPAR Convention

77. The Convention for the Protection of the MarineEnvironment of the North-East Atlantic (“1992OSPAR Convention”) was adopted on 22September 1992, and entered into force on 25March 1998. The 1992 OSPAR Conventionconsists of a Preamble and Articles, five Annexesand three Appendices. Annexes I-III deal withpollution from various sources, Annex IV dealswith the assessment of the quality of the marineenvironment and, most relevant for our purpose,Annex V concerns ‘the protection andconservation of the ecosystems and biologicaldiversity of the maritime area,’ while Appendix 3contains ‘criteria for identifying human activities forthe purpose of Annex V.’ Annex V and Appendix 3were adopted in 1998, and entered into force on30 August 2000. At the time of writing, the 16contracting parties to the Convention wereBelgium, Denmark, the EU, Germany, Finland,France, Iceland, Ireland, Luxembourg, theNetherlands, Norway, Portugal, Spain, Sweden,Switzerland and the United Kingdom. Of these,Belgium, France, and Portugal were not yet partiesto Annex V and Appendix 3.

78. Geographically, the 1992 OSPAR Conventionapplies to the ‘Maritime area’, which is defined inarticle 1(a) as the marine waters (including internalwaters) of the North-East Atlantic, excluding theBaltic Sea and the Belts and the Mediterranean Seaand its dependent seas. Article 2(1)(a) contains thecore obligation, which is for contracting parties “toprevent and eliminate pollution and … to protectthe maritime area against the adverse effects ofhuman activities so as to safeguard human healthand to conserve marine ecosystems and, whenpracticable, restore marine areas which have beenadversely affected.” The OSPAR Commission is

established to facilitate and supervise theimplementation of this objective. As article 4 ofAnnex V recognizes, the competence of theCommission does not extend to vessel-sourcepollution and fisheries, for which primacy lies withthe IMO, the EU, ICCAT, the North Atlantic SalmonConservation Organization (“NASCO”) and theNorth-East Atlantic Fisheries Commission(“NEAFC”). Where the Commission has, forinstance, through Quality Status Reports (“QSRs”)drawn up pursuant to Annex IV, identified threatsposed by these activities to marine ecosystems andmarine biodiversity, it can do little else than bringthese threats to the attention of these organizations.The 2000 QSR lists fisheries among the humanactivities with the most adverse impacts on themarine environment.

79. Annex V builds on the general obligation in article2(a) of the 1992 OSPAR Convention “...to protectand conserve the ecosystems and the biologicaldiversity in the maritime area...” It also serves toimplement the 1992 Convention on BiologicalDiversity and its Jakarta Mandate at the regionallevel. Contracting parties are required, inter alia, totake the necessary measures in this regard torestore adversely affected marine areas andcooperate in adopting programmes and measuresfor the control of the human activities identified bythe application of the criteria in Appendix 3. TheOSPAR Commission is, among other things,charged with drawing up such programmes andmeasures, to gather relevant data on the impacts ofhuman activities on ecosystems and biodiversityand to aim for an integrated ecosystem approach.OSPAR’s Biological Diversity and EcosystemsStrategy, which was updated in 2003, provides theCommission further guidance on these tasks andsets priorities. Presently, these tasks are mainlycarried out by the Biodiversity Committee (“BDC”).The main priorities include assessing which speciesand habitats need protection, assessing whichhuman activities are likely to have an actual orpotential adverse effect on these species andhabitats or on ecological processes, anddeveloping Ecological Quality Objectives, forwhich the North Sea has been selected as a pilotproject. These will eventually have to culminate inprogrammes and measures designed to regulatehuman activities and restore areas.

80. Progress under Annex V so far includes the Texel-Faial criteria for the selection of threatened anddeclining species and habitats; the OSPAR List ofThreatened and Declining Species and Habitats;the OSPAR Guidelines for the Identification andSelection of Marine Protected Areas in the OSPARMaritime Area; the OSPAR Guidelines for the

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Management of Marine Protected Areas in theOSPAR Maritime Area; and OSPARRecommendation 2003/3 on a Network of MarineProtected Areas. The development of the latternetwork is carried out in cooperation with theHelsinki Commission (established under theConvention on the Protection of the MarineEnvironment of the Baltic Sea Area).

3. Global Non-Legally Binding Instruments

a) Rio Declaration and Agenda 21

81. The Rio Declaration and Agenda 21 are two non-legally binding instruments adopted by theinternational community at the 1992 UNCED.UNCED was another incremental step in theevolution of international environmental law.While the Rio Declaration contains generalprinciples and objectives, Agenda 21, the ActionPlan for the 21st Century, contains detailedguidance on their practical implementation. Seealso chapters 3 and 7 above.

82. Although general support existed as to the need tobalance social, economic and environmentalfactors within the overarching objective ofsustainable development, the interests ofdeveloped and developing states in the 1992 RioDeclaration differed significantly. While developedstates lobbied strongly for the incorporation ofPrinciples 10, 15 and 16 on public participation,precaution, and the polluter-pays principle,developing states insisted on Principles 3, 5, and 7,which emphasised the right of development,poverty alleviation and ‘common but differentiatedresponsibilities’.

83. Agenda 21 is a massive document consisting offorty chapters. For our purposes, Chapter 15 on‘Conservation of Biological Diversity’ and chapter17 on ‘Protection of the oceans, all kinds of seas,including enclosed and semi-enclosed seas, andcoastal areas and the protection, rational use anddevelopment of their living resources’ areespecially relevant. Each Chapter usually consistsof several programme areas, which are in turnbroken down into a basis for action, objectives,activities, and/or means of implementation.Activities include management-relatedrecommendations, data and informationrequirements, and requirements for internationaland regional coordination and cooperation. Meansof implementation include financial and costevaluations, scientific and technological means,human resource development and capacitybuilding.

84. One of the main elements of Chapter 15 is itssupport for the Convention on Biological Diversity,which was adopted during UNCED. The states alsocommitted themselves to its early entry into force.Paragraph 1 of chapter 17 refers to UNCLOS,thereby respecting its jurisdictional framework.Also noteworthy are paragraph 17.30(vi) whichcalls on the development of rules on ballast waterexchange, paragraphs 17.50 and 17.80 which callfor the conference which eventually culminated inthe Fish Stocks Agreement; paragraph 17.54 ondestructive fishing practices; and paragraph 17.75which, inter alia, emphasises the need to preserverare or fragile ecosystems.

b) FAO Code of Conduct for Responsible Fisheries

85. The Code of Conduct for Responsible Fisheries(“1995 FAO Code of Conduct”) was adopted at theTwenty-eight Session of the FAO Conference on 31October 1995. The drafting of the Code occurredparallel to the negotiations of the Fish StocksAgreement and the 1993 FAO Agreement topromote Compliance with InternationalConservation and Management Measures byFishing Vessels on the High Seas (“1993 FAOCompliance Agreement”). Care was taken toensure that these three instruments would notcontradict each other. In fact, the 1993 FAOCompliance Agreement forms an integral part ofthe Code of Conduct. Even though there are non-contradictory overlaps, the three instrumentslargely complement each other. The principalpurpose of the FAO Code of Conduct is to offerpractical guidance to states and all those involvedin fisheries. The Code of Conduct is thereforeessentially a ‘Responsible Fisheries. How to do it?’

86. The scope of the FAO Code of Conduct is muchbroader than the Fish Stocks Agreement or theCompliance Agreement. First, it is not just limitedto marine capture fisheries, but extends to allfisheries, including inland (freshwater) fishing andaquaculture. Consequently, unlike the Fish StocksAgreement, its application is not limited to the EEZand the high seas, but also extends to internalwaters, territorial seas and archipelagic waters.Second, the guidance offered is not limited toaspects of conservation and management but alsocovers fisheries development, marketing, trade,energy use, food hygiene and quality, a safeworking environment, marine pollution andintegrated coastal zone management. Third, theFAO Code of Conduct is not just directed to statesbut also specifically at persons, financialinstitutions and vessel-owners and charterers.

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87. As the Introduction to the Code alreadyemphasizes, due respect for the ecosystem andbiodiversity is fundamental to responsible fishing.Specific references to biodiversity occur in articles6.6, 7.2.2(d), 8.4.8 and 12.10. But indirectacknowledgment of the importance of biodiversityis present throughout the code, for example inarticles 2(i), 6.2, 6.5, 6.6, 7.2.2(g), 7.2.3, 7.5.2, byway of taking account of associated and dependentspecies and ecosystems and, of course, by way ofstriving for sustainable and responsible fishing.

88. Apart from implementation efforts by all thosedirectly involved, including states, theimplementation of the FAO Code of Conduct isalso fostered by three other main processes. First,FAO’s Committee on Fisheries (“COFI”) monitorsthe implementation and application of the Code.Second, article 2(d) of the Code of Conductenvisages the development of internationalagreements in furtherance of the Code’s objectives.So far, this has led to four non-legally bindingInternational Plans of Action (“IPOAs”): the 1999IPOA for Reducing Incidental Catch of Seabirds inLongline Fisheries, the 1999 IPOA on theManagement of Fishing Capacity, the 1999 IPOAon the Management and Conservation of Sharks,and the 2001 IPOA to Prevent, Deter andEliminate, Illegal, Unreported and UnregulatedFishing. Third, the FAO Fisheries Department hasdeveloped various technical guidelines in supportof the implementation of the Code of Conduct,among them we can find, ‘Fisheries Management’.The Ecosystem Approach to Fisheries,’ wasfinalized in 2003.

c) Johannesburg Plan of Implementation

89. The 2002 World Summit on SustainableDevelopment was held in Johannesburg, SouthAfrica, to assess the progress made inimplementing Agenda 21 and to expedite therealization of the remaining goals. It culminated intwo instruments: the Johannesburg Declaration onSustainable Development (“Declaration”) and theJohannesburg Plan of Implementation of the WorldSummit on Sustainable Development (“JPOI”).

90. While the Declaration refers to the protection andmanagement of the natural resource base foreconomic and social development as one of theoverarching objectives, and to the protection ofbiodiversity as a basic requirement for humans,these issues appear to have less priority than forinstance poverty eradication. The first substantiveChapter (II) of the JPOI is in fact devoted to thelatter issue. Unlike Agenda 21, the JPOI does nothave a separate chapter on oceans and seas. Issues

of marine biodiversity and sustainable fisheries areintegrated into chapter IV ‘Protecting andManaging the Natural Resource Base of Economicand Social Development,’ in particular inparagraphs 29-34 and 42. These paragraphsadvocate sustainable fisheries, integrated coastaland ocean management, the maintenance of theproductivity and biodiversity of important andvulnerable marine and coastal areas as well asmore specific actions, including adherence tointernational instruments and the establishment ofmarine protected areas. Target dates of 2010 and2012 are set for the application of the ecosystemsapproach, a significant reduction in the current rateof loss of biological diversity and the establishmentof representative networks of marine protectedareas.


91. As stated in paragraph 4 above, internationalagreements usually require implementation at thenational level to give effect to their provisions. Thisis commonly done by means of national legislationand some international agreements in factspecifically stipulate this. Therefore, this sectionpresents three examples of national legislation, twoimplementing UNCLOS, and one the Conventionon Biological Diversity, all related to the protectionand preservation of marine biodiversity, includingthrough sustainable fisheries.

a) China: Implementation of UNCLOS

92. China ratified UNCLOS on 7 June 1996, andthereby committed itself to act in accordance withthe Convention and implement it by means ofnational legislation where required. In part, this hasbeen achieved by China’s Exclusive EconomicZone and Continental Shelf Act (“EEZ Act”), whichwas adopted on 26 June 1998 and came into forceon the same day. By means of articles 2 and 3 ofthe Act, China establishes an EEZ and claimstherein sovereign rights related to natural resourcesand other economic uses and jurisdiction forvarious purposes in accordance with articles 56and 57 of the UNCLOS. Article 4 of the EEZ Actconfirms China’s sovereign rights and jurisdictionover its continental shelf. Articles 6 and 10-12 ofthe Act, the last three of which are reproducedbelow, claim rights that are relevant to theprotection and preservation of marine biodiversity.Article 15 of the EEZ Act provides a basis for theChinese Government to enact relevant regulations.

93. The State Oceanic Administration of China is oneof the bodies entrusted with implementation of theEEZ Act. In collaboration with other governmental

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bodies, the Administration has taken a number ofmeasures to implement the Act. For example, toguard against adverse consequences to the marineecosystem that might result from the exploration ofmineral resources of the deep-sea bed, China has,through the Administration, been closelycollaborating with the International SeabedAuthority established by UNCLOS.

b) Belize: Implementation of UNCLOS

94. Belize ratified UNCLOS on 13 August 1983, andbecame a party upon the Convention’s entry intoforce on 16 November 1994. To be able toimplement the conservation requirements ofUNCLOS, Belize undertook major amendments toits Coastal Zone Management Act (“Coastal ZoneAct”), Chapter 329. The amendments took effecton 31 December 2002. One of the Coastal ZoneAct’s key provisions is Section 1, which creates abody known as the Coastal Zone ManagementAuthority, which is charged with the responsibilityof taking specific steps and actions to implementthe Act.

95. The Authority has the statutory mandate to assist inthe development and implementation ofprogrammes and projects that translate policies ofthe government related to conservation of themarine environment into activities that contributeto sustainable development of coastal resources.The Coastal Zone Act also requires the Authority toassist in the development and execution ofprogrammes and projects that foster and encourageregional and international collaboration in the useof marine resources. In addition, the Authority isrequired to undertake research and monitoringactivities in Belize’s coastal areas to determineactivities that may have adverse impacts on themarine environment. It also requires the Authorityto promote public awareness of the unique natureof Belize’s coastal zone and the need for effectiveand sustainable conservation and management ofits resources.

96. The Coastal Zone Act also establishes an AdvisoryCouncil, which works with the Authority and is incharge of the country's fisheries. It also establishes

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The People's Republic of China:Law on the Exclusive Economic Zone and the Continental Shelf

Article 10: “The competent authorities of the People's Republic of China shall have the right to take the necessarymeasures to prevent, reduce and control pollution of the marine environment and to protect and preserve the marineenvironment of the exclusive economic zone and the continental shelf.”

Article 11: “Any State, provided that it observes international law and the laws and regulations of the People's Republic ofChina, shall enjoy in the exclusive economic zone and the continental shelf of the People’s Republic of China freedom ofnavigation and overflight and of laying submarine cables and pipelines, and shall enjoy other legal and practical marinebenefits associated with these freedoms. The laying of the submarine cables and pipelines must be authorized by thecompetent authorities of the People's Republic of China.”

Article 12: “The People's Republic of China may, in the exercise of its sovereign rights to explore, exploit, conserve andmanage the living resources of the exclusive economic zone, take such measures, including boarding, inspection, arrest,detention and judicial proceedings, as may be necessary to ensure compliance with its laws and regulations. …”

Belize: Coastal Zone Management Act (Chapter 329)

“The objects of the Institute are: (a) to stimulate and advance the conduct of marine scientific research in Belize; (b) topromote the utilization and conservation of the marine resources for the economic and social benefit of Belize, and toenhance the national capabilities of Belize in the conduct of marine scientific research; (c) to promote a publicunderstanding of the appreciation for all aspects of the marine and related environment…” (Section 9).

“The functions of the Institute are: (a) to conduct research and development on the marine environment of Belize, theCaribbean and adjacent regions; (b) to collaborate in the maintenance of a centralized accessible centre for informationand research related to the coastal zone; … (d) to study the multiple uses of the sea and coastal zones, their resources andpotential use in Belize, the Caribbean and adjacent regions, and to evaluate and promote such studies with a view tominimizing possible conflicts which may result from such uses; ...(j) to assist the Authority in the development of technicalguidelines for the sustainable use of coastal resources;...(l) to provide advice, as required, on development activities withinthe coastal zone;…” (Section 10 (a) -(l)).

a Coastal Zone Management Institute(“Management Institute”), and charges it with theresponsibility of managing the country's coastalareas, promoting utilization and conservation ofmarine resources and conducting marine scientificresearch.

97. Through collaboration, the Coastal ZoneManagement Authority, the Management Instituteand other institutions have provided technicalguidance to the Fisheries Department of Belize onmatters related to conservation and sustainablefisheries. They have also assisted the FisheriesDepartment in developing a project for theconstruction and deployment of safe fishaggregating devices that will allow for theexploitation of commercially important fish speciesin the maritime zones of Belize, and in the highseas without threatening to deplete the resources.

98. The Ecosystems Management Unit of the FisheriesDepartment has been conducting monitoringactivities for lobsters and other commerciallyimportant species to detect any reductions in theirpopulations for necessary restorative measures. Ithas also implemented programmes for on-siteprotection of species of fish, for protection of themarine ecosystems and for enforcement of fisheriesregulations to promote sustainable fisheries. Aheightening of enforcement activities has led to a50% increase in patrols compared to 1999-2000;resulted in more arrests and prosecutions; had asignificant impact on illegal fishing activities; led tosixty-seven convictions in the year 2001; resultedin a total of US $120,720 in fines, resulted in theconfiscation of US $137,020 worth of fishingequipment and curbed non-compliance with

fisheries regulations. Areas where enforcementactivities have been regular include Bacalar ChicoMarine Reserve, Hol Chan Marine Reserve,Glovers Reef Marine Reserve and Sapodilla CayesMarine Reserve.

c) Australia: Implementation of the Convention onBiological Diversity

99. Australia ratified the CBD on 18 June 1993, andbecame a party upon the CBD’s entry into force on29 December 1993. In order to implement theCBD, the federal government (“Commonwealth”)of Australia passed the Environment Protection andBiodiversity Conservation Act (“EPBC Act”),Number 91 of 1999, which entered into force on16 July 2000. The EPBC Act, which has beenamended several times since its adoption, is amassive piece of legislation comprising 528Sections. The EPBC Act establishes a nationalframework for environment protection through afocus on protecting matters of nationalenvironmental significance and on theconservation of Australia's biodiversity, includingmarine biodiversity. Among other things, the EPBCAct requires the preparation of lists of endangered,threatened and critically endangered species ofanimals, plants and other organisms so thatappropriate action can be taken to conserve,preserve and restore their populations. Particularattention is given to the tool of the establishment ofprotected areas. In addition, the EPBC Act createsspecific offenses in relation to the export or importof endangered and threatened species.

100. Chapter 5, part 12 of the EPBC Act establishes asystem for identifying and monitoring biodiversity

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Australia: Environment Protection and Biodiversity Conservation Act, Number 91 of 1999

Section 171: “(1) The Minister may, on behalf of the Commonwealth, co-operate with, and give financial or other assistance to,any person for the purpose of identifying and monitoring components of biodiversity. …the co-operation and assistance mayinclude co-operation and assistance in relation to all or any of the following: (a) identifying and monitoring components ofbiodiversity that are important for its conservation and ecologically sustainable use.”

Section 171(3): “In this Act: components of biodiversity includes species, habitats, ecological communities, genes, ecosystemsand ecological processes."

Section 178(1): “The Minister must, by instrument published in the Gazette, establish a list of threatened species divided into thefollowing categories: (a) extinct; (b) extinct in the wild; (c) critically endangered; (d) endangered; (e) vulnerable; (f) conservationdependent.”

Section 196: “(1) A person is guilty of an offence if: (a) the person takes an action; and (b) the action results in the death or injuryof a member of a native species or a member of an ecological community; and (c) the member is a member of a listed threatenedspecies (except a conservation dependent species) or of a listed threatened ecological community; and (d) the member is in oron a Commonwealth area.… (3) The offence is punishable on conviction by imprisonment for not more than 2 years or a finenot exceeding 1,000 penalty units, or both.”

to allow necessary actions to be taken forconservation and preservation. Part 12 requiresapproval of activities involving the marineenvironment through a permitting system, whichallows conditions to be placed on the permits toprevent human activities from causing harm tomarine organisms and their environment.

101. The administration of the EPBC Act and theEnvironment Protection and BiodiversityConservation Regulations of 2000 (as amended) isone of the key functions of the Commonwealth’sDepartment of Heritage. The Approvals andWildlife Division is the body responsible for theimplementation of the Act of 1999. The Divisionconsists of three Branches: the EnvironmentAssessment and Approvals Branch, the Policy andCompliance Branch and the Wildlife Branch.These bodies have undertaken a number ofactivities aimed at implementing the EPBC Act. Forexample, action plans have been developed toguide the government in undertaking conservationmeasures that the EPBC Act stipulates. The plansinclude strategies to be undertaken by scientists toreview the conservation status of differentcategories of Australia’s marine organisms, identifyany threats to their conservation and recommendappropriate response actions. Such plans assist not

only governmental bodies, but also non-governmental organizations to set priorities forconservation of threatened species.

102. In addition, the EPBC Act recognizes a BiodiversityDay, which is celebrated in Australia in Septemberof each year. There is also a National ThreatenedSpecies Day every year. On these days, thegovernment makes specific efforts to createawareness of the need and obligation to protectand conserve biodiversity in Australia. On suchdays, the Commonwealth Government involvesAustralians in practical measures to conserve theirunique and valuable species by holding workshopsand conferences, planting trees, and conductingschool projects on biological diversity, amongother conservation activities.

Dr. Erik Jaap Molenaar, Senior Research Associate,Netherlands Institute for the Law of the Sea(“NILOS”)


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Resources

Internet Resources

A.G. OUDE ELFERINK, THE IMPACT OF ARTICLE 7(2) OF THE FISH STOCKS AGREEMENT ON THE FORMULATION OF CONSERVATION

& MANAGEMENT MEASURES FOR STRADDLING & HIGHLY MIGRATORY FISH STOCKS, FAO LEGAL PAPERS ONLINE #4 (AUGUST

1999) available at http://www.fao.org/Legal/pub-e.HTM

COMMISSION FOR THE CONSERVATION OF ANTARCTIC MARINE LIVING RESOURCES (“CCAMLR”) available athttp://www.ccamlr.org

CONVENTION ON BIOLOGICAL DIVERSITY (“CBD”) available at http://www.biodiv.org

CONVENTION ON MIGRATORY SPECIES (“CMS”) available at http://www.wcmc.org.uk/cms

ECOSYSTEM-BASED MANAGEMENT OF FISHERIES. OPPORTUNITIES AND CHALLENGES FOR COORDINATION BETWEEN MARINE

REGIONAL FISHERY BODIES AND REGIONAL SEAS CONVENTIONS, (FAO DOC. RFB/II/2001/7) available atwww.fao.org/documents

FISHERIES DEPARTMENT OF THE UNITED NATIONS FOOD AND AGRICULTURE ORGANIZATION (“FAO”) available athttp://www.fao.org/fi

HIGH NORTH ALLIANCE available at http://www.highnorth.no

INTERNATIONAL COMMISSION FOR THE CONSERVATION OF ATLANTIC TUNAS (“ICCAT”) available at http://www.iccat.es

INTERNATIONAL MARITIME ORGANIZATION (“IMO”) available at http://www.imo.org

INTERNATIONAL WHALING COMMISSION (“IWC”) available at www.iwcoffice.org

OSPAR COMMISSION available at http://www.ospar.org

UNEP, HANDBOOK OF THE CONVENTION ON BIOLOGICAL DIVERSITY (2ND ED., 2003) available at www.biodiv.org

UNITED NATIONS DIVISION FOR OCEAN AFFAIRS AND THE LAW OF THE SEA (“DOALOS”) available athttp://www.un.org/Depts/los

UNITED NATIONS ENVIRONMENT PROGRAMME (“UNEP”) available at http://www.unep.org

UNITED NATIONS ENVIRONMENT PROGRAMME, CARIBBEAN REGIONAL CO-ORDINATING UNIT, CARIBBEAN ENVIRONMENT

PROGRAMME available at http://www.cep.unep.org

Text Resources

Alan Boyle, INTERNATIONAL & COMPARATIVE LAW QUARTERLY, (Volume 54, Part 3, July 2005 - Further Development ofthe Law of the Sea Convention: Mechanisms for Change).

E.J. Molenaar, ECOSYSTEM-BASED FISHERIES MANAGEMENT, COMMERCIAL FISHERIES, MARINE MAMMALS AND THE 2001REYKJAVIK DECLARATION IN THE CONTEXT OF INTERNATIONAL LAW, (17 INTL.L J. of Marine & Coastal L., 2002, pp. 561-595).

E.J. Molenaar, THE CONCEPT OF “REAL INTEREST” AND OTHER ASPECTS OF CO-OPERATION THROUGH REGIONAL FISHERIES

MANAGEMENT MECHANISMS, (15 INTL. J. of Marine & Coastal L., 2000, pp. 475-531).

F. Orrego Vicuña, THE CHANGING INTERNATIONAL LAW OF HIGH SEAS FISHERIES, (Cambridge University Press, 1999).

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J.A. de Yturriaga, THE INTERNATIONAL REGIME OF FISHERIES FROM UNCLOS 1982 TO THE PRESENTIAL SEA, (Martinus NijhoffPublishers, 1997).

R.R. Churchill & A.V. Lowe, THE LAW OF THE SEA, (Manchester University Press, 1999).

S.J. Bache, MARINE WILDLIFE BYCATCH MITIGATION. GLOBAL TRENDS, INTERNATIONAL ACTION AND THE CHALLENGES FOR

AUSTRALIA, (Ocean Publications, Centre for Maritime Policy, University of Wollongong, 2003).

W.C.G. Burns & A. Gillespie (Eds.), THE FUTURE OF CETACEANS IN A CHANGING WORLD, (Transnational Publishers,2003).

W. Edeson, D. Freestone & E. Gudmundsdottir (Eds.), LEGISLATION FOR SUSTAINABLE FISHERIES. A GUIDE TO IMPLEMENTING

THE 1993 FAO COMPLIANCE AGREEMENT AND 1995 UNITED NATIONS FISH STOCKS AGREEMENT, (the World Bank, 2001).

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FRESHWATER RESOURCESChapter 18

18. FRESHWATER RESOURCES

I. Introduction

1. Water is essential to human and other forms of life.Therefore, attention should be paid not only toregulating the exploitation of water anddiminishing or halting pollution of single waterbodies, but also protecting and preserving theentire ecosystems of which water resourcesconstitutes integral part. For example, deforestationin a watershed can affect its streams, which in turncan affect fish and other aquatic life and lead toflooding. The cascade of social and economicconsequences that can flow from the loss ofhealthy ecosystems demonstrates that freshwaterecosystems should not be seen as somethingseparate from human society and well being. Theyare, in fact, an integral part of a country’s economyand should be both protected and enhancedaccordingly.

2. This chapter focuses on the protection,conservation and management of freshwaterresources, both at the international and nationallevel. Freshwater resources have been the objectof regulation long before the emergence ofenvironmental protection and sustainabledevelopment concerns. International rules andprinciples, as well as national regimes, have beendeveloped to regulate their navigational and otheruses. These regimes, perhaps with the exception ofsanitation standards, mostly treated water as aneconomic resource, and dealt largely with thequantitative aspect of water resources.

3. The emergence of environmental protectionobligations and of the principle of sustainabledevelopment, as well as the increased awarenessthat water resources have to be managed in aholistic approach, have highlighted the need tointegrate existing water regulation regimes withrules and principles concerning the environmentalaspects of freshwater resources, and to regulate thequantitative and qualitative aspects in an integratedmanner. Therefore, in order to reflect the evolutionof the law in this area and the interlinkagesbetween the regulation of the use of water and theprotection and conservation of water resources andtheir ecosystems, this Chapter will also address theissue of water allocation rights, falling under whatis traditionally referred to as water law.

1. The Hydrological Cycle

4. Most freshwater on Earth is in constant motion inthe hydrologic cycle. (See table, above). Thisexpression refers to the process whereby waterevaporates into the atmosphere and returns toEarth’s surface through condensation andprecipitation. Evaporation may occur from any wetsurface. Most water evaporates from the oceans,since they cover about 70% of the planet, but alsofrom other bodies of water, such as lakes, reservoirsand rivers, as well as from moist soil and othersurfaces. Considerable amounts of water vapourenter the atmosphere through transpiration andevaporation from vegetation in a process referredto as evapotranspiration. Thus crops, trees andother vegetation act as virtual “pumps,” transferringwater from the ground into the atmosphere.Therefore, large-scale elimination of vegetation canaffect local and regional climate patterns.

5. When water returns to land through precipitation,it may either remain on the surface, as standingwater or as runoff, or soak into the ground throughinfiltration. Runoff flows into streams, lakes andother forms of surface water, generally finding itsway into the ocean. Water entering the groundthrough infiltration may be held in the soil, toeventually return to the surface through capillaryaction and evaporate, or may percolate downwardto become groundwater. The area on the landsurface where infiltration occurs is called therecharge area. This may lie a considerable distancefrom the place where groundwater is withdrawn oremerges naturally, for example, by flowing into ariver, or emanating from the ground in the form ofa spring. The underground geologic structurescontaining water are often referred to as aquifers.These porous, permeable water-bearing formationsare composed of such material as sand, gravel orlimestone. The water contained in these aquifers iscalled groundwater. The upper surface ofgroundwater is the water table. Water moves notonly from Earth’s surface to the atmosphere andback again, but also from the surface into theground and back again to the surface. For example,considerable water seeps from streams throughtheir beds into the ground, changing from surfacewater to groundwater. This groundwater may laterrejoin the stream, emerge as a spring or flowunderground into a lake or the ocean. However,there are certain aquifers containing what issometimes called confined groundwater, or fossilwater, that do not interact with surface water orother aquifers, but these are highly exceptional.

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FRESHWATER RESOURCES Chapter 18

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6. It is estimated that over three-quarters of allfreshwater on Earth is frozen in polar ice-caps andglaciers and is inaccessible as a practical matter.Approximately 97% of the remaining waterconsists of groundwater, while surface wateraccounts for a surprisingly small percentage of thetotal of freshwater on earth. Therefore, a highpercentage (about one-third) of the globalpopulation depends upon groundwater, much ofwhich is drawn from shallow aquifers, which aremore subject to pollution than deep aquifers.

2. Water Scarcity

7. Although water has been the same for billions ofyears, as it neither grows nor diminishes over time,concerns about its scarcity derive largely fromintensified human demand for a finite supply anddeterioration of its quality caused by humanactivities. Intensified human demand largely due torapid population growth. If about one-third of theglobal population lives today in countries undermoderate-to-high water stress, studies haveestimated that by the 2015, nearly half the world’spopulation will live in countries lacking sufficientwater.

8. Water quality is an important consideration for itsintended use. Therefore, water quality and quantityare interrelated: water resources may be plentifulbut unsuitable for human use because ofcontamination. This problem is becoming moreserious, particularly in urban areas where the needto provide adequate and safe supplies of water anddispose of the increasingly large quantities ofwastewater in a safe and environmentally soundway is becoming an increasingly pressing concern.

9. An additional factor that may have profound effectson water supplies is global climate change, whoseconsequences, as estimated by theIntergovernmental Panel on Climate Change(“IPCC”) created by the WMO and UNEP to assessscientific, technical and socio-economicinformation relevant for the understanding ofclimate change, its potential impacts and optionsfor adaptation and mitigation) include not onlyhigher temperatures but also rising sea levels,altered precipitation patterns, and an increase inextreme climatic events and storm surges, amongother effects. All of these factors will impact on theavailability and quality of freshwater resources andbe exacerbated by human demand for freshwater.

10. The world’s water is unevenly distributed. Somegeographic regions have more water than they canpossibly use while others do not have enough.Governments have sometimes responded to thisphenomenon by transferring water from places

where it is abundant to those where it is scarce.While water transfers may address needs of thepresent and short-term future, they may also haveunforeseen and harmful longer-term effects onecosystems and even human populations.

3. Water Pollution

11. Principal sources of freshwater pollution includeuntreated sewage, agricultural run-off anddischarge of chemical substances. These affect allforms of freshwater and marine water in coastalareas, degrade associated ecosystems and threatenthe health and livelihoods of people dependentupon them.

12. The lack of adequate sanitation is the primarycause of water contamination and water-relateddiseases, such as cholera, dengue fever, diarrhoeaand typhoid fever. Some 2.3 billion people areafflicted with these diseases each year. Children areparticularly vulnerable since their immune systemsare not fully developed. The poor are the mostlikely to have inadequate sanitation facilities and tosuffer consequent adverse effects on their healthand environment.

13. Substances deposited on land surfaces (forexample, fertilizers, pesticides and other chemicalsused in agriculture), may filter into groundwater,which could be affected by other sources ofpollution affecting streams that eventuallyreplenish the aquifer. Once contaminated,groundwater is very difficult to purify unless it isextracted and treated which process would beexperience as well.

14. The quality of groundwater in coastal areas mayalso be affected by over-pumping, or mining.Mining of groundwater occurs when withdrawalsexceed the average rate of replenishment. Becausecoastal aquifers are often geologically connectedwith the adjacent ocean, these withdrawals cancause sea water to be drawn into the aquifers,increasing the salinity of the freshwater and makingit unfit for many uses.

4. Water Uses

15. Humans use freshwater in a wide variety of ways.Nevertheless, it is possible to identify several broadcategories of uses for convenience: domestic uses;industrial uses; agricultural uses; recreational uses;navigational uses; waste-disposal uses; and in-stream uses ( such as fishing, conservation of fishand other aquatic life, recreation, safeguardingaesthetic values and preservation of aquaticecosystems). These categories may be further

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subdivided. For example, domestic uses includethe use of water for drinking, washing, foodpreparation, sanitation and subsistence farming,among other uses.

16. It is important to bear in mind the potential fordifferent uses of water to come into conflict witheach other. Thus, for example, the use of water fordrinking would conflict with any other use, forinstance waste-disposal use - that made the waterunfit for drinking.

17. Conflicts between uses of land and water must alsobe confronted. For example, deforestation canincrease runoff, causing erosion of soil which canlead to increased turbidity of streams andsedimentation of their beds; sedimentation can, inturn, cause flooding and decrease infiltration ofwater from streams into aquifers. Agriculture mayresult in the direct or indirect discharge ofpollutants into water sources and affect the extentto which those sources are available for other uses.More broadly the interest of the internationalcommunity in environmentally soundmanagement of water resources is to provide aframework of peaceful cooperation and avoidanceof conflicts that could jeopardize peace andsecurity among countries sharing the resource.Conflict resolution mechanisms are at all times atthe core of underlying cooperation.

18. The relationship between fresh, coastal and marinewater resources must also be borne in mind.Nearly one-third of the world’s population lives incoastal zones. Since most watercourse systemseventually reach the sea, coastal residents bear theeffects of freshwater management practices in therelevant basins. Thus, freshwater systems,wetlands, and coastal and marine waters should bemanaged holistically.

19. Estuaries, partly enclosed aquatic zones whereseawater mixes with freshwater from rivers,deserve special protection, as they providesanctuaries, breeding and feeding grounds formany important species and serve as nurseries forhalf of the living organisms in the world’s oceans.Also marshes and wetlands serve critical ecologicalfunctions, by regulating water regimes, and byproviding habitats for flora and fauna as well asimportant water purification services. They areoften relied upon by local populations for food andeven shelter.

II. The International Framework

1. Major Developments in the Field of Cooperation onFreshwater

20. The issues of water availability, use, management,and conservation, with all their implications, are atthe centre of concern at national and internationallevels. In the past decade, water has been at thecenter of international conferences and initiativesas well as the object of international cooperation,including through the development of legally-binding agreements.

21. The International Conference on Water and theEnvironment, a meeting of water specialists held inDublin in 1992, adopted the Dublin Statement onWater and Sustainable Development and a set offour Guiding Principles. The first of these principlesreads: “Fresh water is a finite and vulnerableresource, essential to sustain life, development andthe environment.” The other principles concernthe need for a participatory approach to waterdevelopment and management, the central role ofwomen in the provision, management andsafeguarding of water, and the need to recognizewater as an economic good.

22. At the United Nations Conference on Environmentand Development, held in Rio de Janeiro in 1992,Governments adopted a detailed plan of action,Agenda 21, whose chapter 18 outlines the actionneeded at the national level to safeguard freshwaterresources. Agenda 21 adopts the concept ofintegrated water resource management, based onthe idea that water is “...an integral part of theecosystem, a natural resource and a social andeconomic good...” and that “Freshwater is a unitaryresource” and the “complex interconnectedness offreshwater systems demands that freshwatermanagement be holistic (taking a catchmentmanagement approach) and based on a balancedconsideration of the needs of people and theenvironment.” It also contains usefulrecommendations on activities and means ofimplementation with regard to the impacts ofclimate change on water resources.

23. At the Millennium Summit, held in 2000, theGeneral Assembly adopted the MillenniumDeclaration (UNGA Resolution 55/2 of 8September 2000), by which states resolved toreduce by half the proportion of people withoutsustainable access to safe drinking water by 2015.World leaders also agreed to adopt in all

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environmental actions a new ethic of conservationand stewardship and, as a first step, to “stop theunsustainable exploitation of water resources bydeveloping water management strategies at theregional, national and local levels, which promoteboth equitable access and adequate supplies. (SeeParagraph 23 of the Millennium Declaration).These commitments have been translated into theMillennium Development Goal 7: Ensureenvironmental sustainability.

24. Water was at the centre of several internationalconferences, such as the Bonn InternationalConference on Freshwater (December 2001) andthe Second (March 2000) and Third (March 2003)World Water Forums.

25. Furthermore, one of the major priority areas at theWorld Summit on Sustainable Development(“WSSD”, Johannesburg 2002) was water. In theJohannesburg Plan of Implementation states notonly reaffirmed the Millennium Development Goalmentioned above, but additionally committed tohalving the proportion of people without access tobasic sanitation services within the same period.They also called for the development of integratedwater resources management and water efficiencyplans by 2005. The United Nations Commissionon Sustainable Development decided at itseleventh session (April 2003) to monitor progressand promote the further implementation of thewater agenda in the first cycle of its new multi-yearprogramme of work.

26. At the eighth special session of the GoverningCouncil / Global Ministerial Environment Forum ofthe United Nations Environment Programme heldin Jeju, Republic of Korea in March 2004, Ministersand other heads of delegations engaged in adialogue on the priority environmental dimensionsof the water related themes and associated targetsstemming from the Millennium Declaration andthe World Summit on Sustainable Development,and in particular on integrated water resourcemanagement, water and sanitation and water,health and poverty. The summary of thediscussions held is known as the Jeju initiative.

2. Freshwater Regulation at the International Level

27. Water is one of the most widely shared resources ofthe planet. Rivers often constitute the borderbetween states or flow across different countriesand lakes often lie on the territory of different states.Therefore water can be a factor for competition aswell as a reason of cooperation among states.Disputes for the control of water resources have a

long history. Also major water developmentprojects (e.g. the construction of a dam) havecaused violence and civil strife.

28. But shared waters can also be a source ofcooperation: throughout history, states havemanifested their interest in cooperating for themanagement of water resources and haverecognized the need to establish rules andprinciples for a peaceful cooperation.

29. The body of rules and principles that have beendeveloped to respond to similar situations isimpressive, due to the extensive state practice inthis field, both in terms of agreements and otherforms of rules of conduct. Historically, rules andprinciples of international law relating tointernational watercourses first developed in thefield of navigation. One of the first Europeanagreements relating to shared water resources, theFinal Act of the Congress of Vienna (1815),stipulated that there was to be freedom ofnavigation on all navigable rivers. However, otheruses of shared water resources, such as irrigation,the generation of hydroelectricity and wastedisposal, have become increasingly important.The practice of states sharing freshwater resourceshas led to the development of general rules andprinciples concerning the non-navigational uses ofinternational watercourses. This body of law findsits most recent and authoritative expression in the1997 United Nations Convention on the Law of theNon-Navigational Uses of InternationalWatercourses (“International WatercoursesConvention”).

30. The International Watercourses Convention isbased on preparatory work done by the UnitedNations International Law Commission (“ILC”),whose objective is the progressive development ofinternational law and its codification. The ILC’swork on international watercourses was based on awide variety of sources, including treaties and otherforms of state practice, and the work ofinternational organizations. One of theseorganizations, the International Law Association(“ILA”), adopted an unofficial but influential draft in1966 entitled the Helsinki Rules on the Uses of theWaters of International Rivers, which helped toclarify the law in the field.

31. While the International Watercourses Conventionis not yet in force, a number of the rules it containsreflect customary international law, which isbinding on all states. Of these rules, the three mostfundamental include:• Obligation to utilize an international

watercourse in an equitable and reasonablemanner;

• Duty to prevent significant harm to otherriparian states; and

• Obligation to provide prior notification ofplanned measures that might affect other statessharing a watercourse.

32. The fundamental nature of the principle ofequitable utilization was underscored by theInternational Court of Justice (“ICJ”) in its 1997judgment in the Gabcikovo-Nagymaros Case. Inthat decision, the ICJ referred to what it called astate’s “basic right to an equitable and reasonablesharing of the resources of an internationalwatercourse”.

33. Two other obligations, which have begun toreceive attention only relatively recently, may beadded to the three just mentioned: • The emerging substantive obligation to protect

international watercourses and their ecosystemsagainst degradation; and

• The procedural duty of riparian states tocooperate with each other in their relationsconcerning shared freshwater resources, a dutythat encompasses a variety of forms ofcooperation ranging from sharing of data andinformation to cooperation in the jointmanagement of shared water resources.

34. Considering the authoritative character of theInternational Watercourses Convention as acodification of basic principles of internationalwatercourse law, states sharing freshwaterresources have referred it as a source of standardsgoverning their relations and as a model for ad hocagreements regulating specific water bodies. Inview of the Convention’s influence and because itconveniently summarizes the generally applicableprinciples, the following section examines thecontent of this instrument in more detail.

a) The 1997 United Nations Convention on the Law of the Non-Navigational Uses of

International Watercourses

35. The Convention on the Law of the Non-Navigational Uses of International Watercourses(“International Watercourses Convention”)originated from the work of the International LawCommission, mandated by the General Assemblyin 1970 to “take up the study of the law ofinternational watercourses with a view to itsprogressive development and codification.” TheILC adopted a complete set of draft articles in 1994,which was submitted to a Working Group for itsfinalization in the form of a multilateral agreement.As a result of this process, the InternationalWatercourses Convention was adopted by theGeneral Assembly on 21 May 1997, as an annex to

Resolution 51/229. The Convention is not yet inforce; it will enter into force when it has beenratified by thirty-five states (article 36). As ofNovember 2005, sixteen states have signed andfourteen are parties to the Convention.

36. The International Watercourses Conventiondefines the term “watercourse” (article 2) as “asystem of surface waters and ground watersconstituting by virtue of their physical relationshipa unitary whole and normally flowing into acommon terminus” and an “internationalwatercourse” as a watercourse “parts of which aresituated in different States.” This definition takesinto consideration the reality of the hydrologicalcycle and suggests the need for states to take intoaccount the physical unity of interconnectedsurface water and groundwater when managingshared freshwater resources. However it does notapply, strictly speaking, to groundwater that is notconnected in some way with surface water, so-called “confined” groundwater. Nevertheless, theILC annexed a Resolution on ConfinedTransboundary Groundwater to the set of draftarticles it adopted in 1994, recommending thatstates be “guided by the principles contained in thedraft articles” in regulating confined transboundarygroundwater. Subsequently the ILC took up thestudy of the law applicable and to confinedtransboundary groundwater. Its work is ongoing atthe time of this writing.

37. Part II of the International WatercoursesConvention contains a number of generalprinciples. The first of these principles is theprinciple of equitable utilization and participation(article 5), which provides:

Convention on the Law of the Non-Navigational Usesof International Watercourses

(Article 5)

“1. Watercourse States shall in their respectiveterritories utilize an international watercourse in anequitable and reasonable manner. In particular, aninternational watercourse shall be used anddeveloped by watercourse States with a view toattaining optimal and sustainable utilization thereofand benefits therefrom, taking into account theinterests of the watercourse States concerned,consistent with adequate protection of thewatercourse.

2. Watercourse States shall participate in the use,development and protection of an internationalwatercourse in an equitable and reasonable manner.Such participation includes both the right to utilize thewatercourse and the duty to cooperate in theprotection and development thereof, as provided inthe present Convention.”

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38. The principle of equitable utilization, as set forthabove, is chiefly concerned with apportionment, orallocation, of water between states sharing aninternational watercourse. It therefore relatesprimarily to water use, and thus to water quantity,rather than to water quality. However, as is clearfrom that text that equitable utilization incorporatesthe concepts of sustainable use and adequateprotection of the watercourse. The ensuingparagraph expresses the duty of states toparticipate equitably in the use, development andprotection of an international watercourse.

39. The International Watercourses Convention setsforth (article 6) a non-exhaustive list of factors to betaken into account by a state to ensure that itsutilization of an international watercourse isequitable and reasonable. These factors include: • Geographic, hydrographic, hydrological,

climatic, ecological and other factors of anatural character;

• Social and economic needs of the watercoursestates concerned;

• Population dependent on the watercourse ineach watercourse state;

• Effects of the use or uses of the watercourses inone watercourse state on other watercoursestates;

• Existing and potential uses of the watercourse;• Conservation, protection, development and

economy of use of the water resources of thewatercourse and the costs of measures taken tothat effect; and

• Availability of alternatives, of comparable value,to a particular planned or existing use.

The weight to be given to each factor “is to bedetermined by its importance in comparison withthat of other relevant factors”. In determining whatis a reasonable and equitable use “all relevantfactors are to be considered together and aconclusion reached on the basis of the whole.”

40. Another fundamental principle governing states’conduct in relation to international watercourses isthe obligation not to cause significant harm, setforth in article 7 of the Convention. According toparagraph 1 of that provision, states sharing awatercourse must “in utilizing an internationalwatercourse in their territories, take all appropriatemeasures to prevent the causing of significant harmto other watercourse States.” Paragraph 2 providesthat

Convention on the Law of the Non-Navigational Usesof International Watercourses

Article 7(2)“Where significant harm nevertheless is caused toanother watercourse State, the States whose use causessuch harm shall, in the absence of agreement to suchuse, take all appropriate measures…to eliminate ormitigate such harm and, where appropriate, to discussthe question of compensation.”

41. As mentioned above, the cornerstone of relationsbetween states sharing water resources iscooperation with regard to specific watercourses.This is captured in article 8, according to whichstates sharing a watercourse must “cooperate onthe basis of sovereign equality, territorial integrity,mutual benefit and good faith in order to attainoptimal utilization and adequate protection of aninternational watercourse”, and “may consider theestablishment of joint mechanisms orcommissions...to facilitate cooperation on relevantmeasures and procedures in the light of experiencegained through cooperation in existing jointmechanisms and commissions in various regions.”

42. Another form of cooperation is provided for inarticle 9, according to which states sharing awatercourse should regularly “exchange readilyavailable data and information on the condition ofthe watercourse” and related forecasts, in particularthose relating to the hydrological, meteorological,hydrogeological and ecological nature of thewatercourse, including its water quality. If therequired information is not readily available, therequested state should “employ its best efforts tocomply with the request,” although it maycondition compliance upon payment of thereasonable costs of collecting and processing thedata or information.

43. The conventions established (article 10) that noneof the different categories of uses of thewatercourses (e.g., navigation, irrigation,hydroelectric power production, industrial usesand so on) has priority over other kinds of uses inthe absence of an agreement or custom to thecontrary and it provides that, whenever differentuses of an international watercourse conflict witheach other, such conflict “shall be resolved withreference to [the principles of equitable andreasonable utilization and participation andobligation not to cause significant harm], withspecial regard being given to the requirements ofvital human needs.” According to a “statement ofunderstanding” adopted by the states thatnegotiated the UN Convention, “ in determining

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‘vital human needs,’ special attention is to be paidto providing sufficient water to sustain human life,including both drinking water and water requiredfor production of food in order to preventstarvation.”

44. According to the International WatercoursesConvention, a riparian state must provide timelynotification to other watercourse States of plannedmeasures which may have a significant adverseeffect upon them. These measures may include, forinstance, new irrigation schemes, dams, plantsdischarging their waste into the stream, etc. to theother riparian states. This will allow the otherriparian states to synchronize their existing useswith the new use or to determine whether the newuse will cause them harm or will be inequitable. Inthe latter case, the states concerned will have anopportunity to reach an appropriate resolutionbefore the plans are implemented and it becomesmore difficult to do so. Articles 11-19 of theConvention establish detailed notificationprocedures for such cases.

45. The International Watercourses Conventioncontains a general obligation and several specificones relating to the protection and preservation ofinternational watercourses. The general obligation,set forth in article 20, provides as follows:“Watercourse States shall, individually and, whereappropriate, jointly, protect and preserve theecosystems of international watercourses”.

46. The specific obligations related to pollution, alienspecies, and the marine environment include thatStates must “prevent, reduce and control thepollution of an international watercourse that maycause significant harm to other watercourse Statesor to their environment, including harm to humanhealth or safety, to the use of the waters for anybeneficial purpose or to the living resources of thewatercourse...” (article 21). This may be seen as aspecific application of the general obligation toprevent harm reflected in article 7. Furthermore,states are to “take all measures necessary to preventthe introduction of species, alien or new, intointernational watercourses” (article 22) and to takeall measures with respect to an internationalwatercourse that are necessary to protect andpreserve the marine environment, includingestuaries...” (article 23).

47. The International Watercourses Convention alsocontains provisions on the prevention andmitigation of harmful conditions and emergencysituations (articles 27 and 28 respectively), dealingwith the prevention of such harmful conditions asfloods, ice hazards, water-borne diseases, erosion,salt-water intrusion, drought and desertification,and with emergency situations that may be brought

on by such phenomena as floods, landslides andindustrial accidents.

3. Freshwater Regulation at the Regional andSubregional Levels

a) The 1992 UNECE Convention on the Protectionand Use of Transboundary Watercourses and

International Lakes48. The rules governing shared watercourses have also

been established in regional contexts, and haveresulted in several conventions, protocols andagreements, which represent the reference pointfor states which share watercourses and intend tocooperate in their conservation, management anduse.

49. An important example of regulation oftransboundary water resources at the regional levelis the 1992 Convention on the Protection and Useof Transboundary Watercourses and InternationalLakes (“Helsinki Convention”), which wasconcluded under the auspices of the EconomicCommission of Europe (“UNECE”) at Helsinki. TheConvention entered into force on 6 October 1996,with 26 signatories and 35 parties as of November2005.

50. The Helsinki Convention deals with theprevention, control and reduction of transboundaryimpacts relating to international watercourses andlakes, with a strong emphasis on pollutionprevention. It establishes a framework forcooperation between the member countries of theUNECE on the prevention and control of pollutionof specific transboundary watercourses by ensuringrational use of water resources with a view tosustainable development. Transboundary watersare defined as any surface or ground waters thatmark, cross or are located on the boundariesbetween two or more states.

51. Under the Convention, the Parties shall take allappropriate measures:• To prevent, control and reduce pollution of

waters causing or likely to cause transboundaryimpact;

• To ensure that transboundary waters are usedwith the aim of ecologically sound and rationalwater management, conservation of waterresources and environmental protection;

• To ensure that transboundary waters are used ina reasonable and equitable way, taking intoparticular account their transboundarycharacter, in the case of activities which causeor are likely to cause transboundary impact;

• To ensure conservation and, where necessary,restoration of ecosystems.

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52. Actions designed to deal with water pollution mustaddress pollution at source, and measures adoptedon this basis must not result directly or indirectly ina transfer of pollution to other parts of theenvironment.

53. The Helsinki Convention establishes that partiesmust be guided, in their actions, by the followingfundamental principles:• The precautionary principle, according to

which action to avoid the release of hazardoussubstances must not be postponed, despite thelack of a proven causal link between thesubstances and the transboundary impact;

• The “polluter pays” principle, according towhich the costs of pollution prevention, controland reduction measures must be borne by thepolluter; and

• Water resources must be managed so that theneeds of the present generation are met withoutcompromising the ability of future generationsto meet their own needs.

54. The Convention also establishes obligations in thefield of monitoring, research and development,consultations, warning and alarm systems, mutualassistance, institutional arrangements, and theexchange and protection of information, as well aspublic access to information.

55. Two Protocols were adopted under the HelsinkiConvention: the Protocol on Water and Health andthe Protocol on Civil Liability and Compensationfor Damage caused by the Transboundary Effects ofIndustrial Accidents on Transboundary Waters. Themain aim of the Protocol on Water and Health,adopted in London on 17 June 1999, is to protecthuman health and well being by better watermanagement, including the protection of waterecosystems, and by preventing, controlling andreducing water-related diseases. It is the firstinternational agreement of its kind adoptedspecifically to attain an adequate supply of safedrinking water and adequate sanitation foreveryone and effectively protect water used as asource of drinking water. To meet these goals, theparties are required to establish national and localtargets for the quality of drinking water and thequality of discharges, as well as for theperformance of water supply and wastewatertreatment. They are also required to reduceoutbreaks and the incidence of water-relateddiseases.

56. The Protocol on Civil Liability and Compensationfor Damage caused by the Transboundary Effects ofIndustrial Accidents on Transboundary Waters wasadopted and signed by 22 countries in Kiev,Ukraine, on 21 May 2003, under both the Helsinki

Convention and the ECE Convention on theTransboundary Effects of Industrial Accidents. TheProtocol is open for ratification by parties to one orboth Conventions, but any other Member state ofthe United Nations may accede to the Protocolupon approval by the Meeting of the Parties. TheProtocol on Civil Liability will enter into force once16 states have ratified it.

57. The Protocol on Civil Liability allows individualsaffected by the transboundary impact of industrialaccidents on international watercourses to bring alegal claim for adequate and promptcompensation. Companies can be held liable foraccidents at industrial installations as well asduring transport via pipelines. The liability coveredby the Protocol includes physical damage, damageto property, loss of income, the cost ofreinstatement and response measures. TheProtocol contains provisions ensuring non-discriminatory treatment of pollution victims, byensuring that victims of the transboundary effectscannot be treated less favourably than victims fromthe country where the accident has occurred.

b) Protocol on Shared Watercourse Systems in theSouthern African Development Community

58. The Southern African Development Community(“SADC”) is a regional economic community thathas the goal of promoting the integration of theregional economy and poverty alleviation, foodsecurity and industrial development. It wasestablished in 1992 and comprises fourteencountries: Angola, Botswana, the DemocraticRepublic of Congo, Lesotho, Malawi, Mauritius,Mozambique, Namibia, Seychelles, South Africa,Swaziland, Tanzania, Zambia and Zimbabwe. It isbased on a treaty that is supplemented by sectoralprotocols.

59. The first SADC Protocol on Shared Water CourseSystems (“SADC Protocol”), developed with theassistance of UNEP, was signed in 1995, andratified in September 1998. Following adoption ofthe United Nations Convention on the Law of theNon-Navigational Uses of InternationalWatercourses in 1997, a revised Protocol wasdeveloped, in line with the provisions of the UNConvention. The Revised Protocol was signed on7 August 2000, and entered into force on 22September 2003. At the time of writing, thefollowing countries had ratified the Protocol:Botswana, Lesotho, Mauritius, Mozambique,Namibia, South Africa, Swaziland, Malawi andTanzania.

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60. Overall objective of the Revised Protocol is:

Protocol on Shared Watercourses Systems in theSouthern African Development Community

(Article 2)

“[…] to foster closer cooperation for judicious,sustainable and co-ordinated management,protection and utilisation of shared watercourses andadvance the SADC agenda of regional integrationand poverty alleviation.”

61. In order to achieve this objective the Protocol seeksto:• promote and facilitate the establishment of

shared watercourse agreements and SharedWatercourse Institutions for the management ofshared watercourses;

• advance the sustainable, equitable andreasonable utilisation of the sharedwatercourses;

• promote a co-ordinated and integratedenvironmentally sound development andmanagement of shared watercourses;

• promote the harmonisation and monitoring oflegislation and policies for planning,development, conservation, protection ofshared watercourses, and allocation of theresources thereof; and

• promote research and technology development,information exchange, capacity building, andthe application of appropriate technologies inshared watercourses management.

62. The Protocol introduces the principle of “unityand coherence of each shared watercourse” whichimplies the need to harmonize uses of the water inthe interests of sustainability and regionalintegration. It requires member states to undertaketo respect and apply the existing rules of general orcustomary international law relating to theutilization and management of the resources ofshared watercourse systems and, in particular, torespect and abide by the principles of communityinterests in the equitable utilization of thosesystems and related resources.”

63. The Protocol also requires member states toestablish appropriate institutions necessary for theeffective implementation of the provisions of theprotocol, which include, among others, River BasinCommissions between Basin States and RiverAuthorities or Boards in respect of each drainagebasin, with the following objects:• Develop a monitoring policy for shared

watercourse systems;• Promote the equitable utilization of shared

watercourse systems;

• Formulate strategies for the development ofshared water course systems; and,

• Monitor the execution of integrated waterresource development plans in sharedwatercourse systems.

c) Agreements concerning Specific Watercourses

64. The international regimes described previously inthis Chapter establish general rules to be followedby states sharing freshwater resources. States willtherefore normally be guided by those rules in themanagement of such shared resources, and ontheir basis they will develop mechanisms forcooperation, often in the form of legally bindingagreements regulating the specific water bodies,containing the rights and duties of the respectivestates and relevant institutional arrangements.

65. Riparian states are becoming increasingly aware ofthe need to cooperate with other riparian states forthe management of shared water resources at thebasin level, based on the recognition that thehydrological linkage between land, freshwaterriver basins and coastal waters does not allow forthe management of these resources in isolation.From this perspective, for certain water systems notonly states whose territory directly adjoins thewater body but also all those whose waterresources contribute to or are affected by such awater body should be involved in any cooperativearrangement, whether legally binding or not.

66. In the case of the Nile basin, for instance, tencountries (Kenya, Tanzania, Uganda, Sudan, Egypt,Burundi, Rwanda, Ethiopia and the DemocraticRepublic of Congo) are involved in the Nile BasinInitiative, which was established in 1998 as adialogue to create a regional partnership tofacilitate the common pursuit of sustainabledevelopment and management of Nile waters andin the context of which a number of significantsteps have been taken towards closer and morestable cooperation.

67. Based on the recognition of this widespread formof cooperation and considering the high number ofbasin organisations existing in the world, anInternational Network of Basin Organizations wasestablished in 1996, with the following objectives:• Establishing a network of organizations

interested in global river basin management,and facilitate exchanges of experiences andexpertise among them;

• Promoting the principles and means of soundwater management in sustainable developmentcooperation programmes;

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• Facilitating the implementation of tools forinstitutional and financial management, forprogramming and for the organization of databanks;

• Promoting information and trainingprogrammes for the different actors involved inwater management including local electedofficials, users' representatives and theexecutives and staff of member organizations;

• Encouraging education of the population, theyoung in particular; and

• Evaluating ongoing actions and disseminatetheir results.

68. Although there exist many examples of basin-widecooperation, of the more than 260 internationalwater basins existing today, more than 150 still lackany type of cooperative management framework.Furthermore, the majority of those basins enjoyingsome form of cooperation do not havecomprehensive agreements including all theriparian states in the basin. And among the existingagreements, the majority lack the tools necessary topromote long-term holistic basin-wide resourcemanagement. Therefore, much work still needs tobe done before adequate legal regimes aredeveloped throughout the world.

69. Although the general rules on cooperation andmanagement of shared water resources areprovided in the International WatercoursesConvention as well as, when applicable, inrelevant regional and subregional instruments,each river basin has its own characteristics, and itis therefore difficult to provide a brief overview ofthe existing agreements regulating specificwatercourses. Anyone interested in a specificarrangement has to check that instrument directly.


70. Not all river basins are international, and not allaspects of international river basins are regulated atthe international level. Indeed, nearly every state inthe world has set in place a legal regime regulatingthe use of water resources in their territory. Manyexisting legislations have not been updated to takeinto consideration environmental protection andsustainable development considerations that havebeen integrated in national policies and legislationrelatively recently where water policies have beendeveloped followed by new consolidating WaterActs and regulations. Hence, many countries areundertaking a process of integration of suchconsiderations in their respective water laws, ordeveloping additional legislations dealing with theenvironmental aspects of water management.Many countries are also working to ensure that theinstitutions responsible for water management and

the environment collaborate so as to ensure thatenvironmental considerations are taken intoaccount when decisions are made that concernsthe use and management of national waters. Ratherthan reviewing specific recent Acts (such as Kenya,2002), major trends and lessons learnt are outlinedbelow. Diversity in conditions and circumstancesin different regions and countries necessitate suchtreatment, thus leaving it to an interested party tocritically examine the situation in their owncountry and other countries they may be interestedin.

1. Major Trends in National Legislation

71. Governments have taken several differentapproaches to the protection and conservation offreshwater resources. The two most prominentapproaches are water quality standards andeffluent limitations. The first approach prescribes aspecific quality standard for a particularwatercourse, effectively proscribing pollution thatwould cause water quality to fall below thatstandard. The second approach sets the quantity ofpollutants that may be legally discharged from aspecific source. While the two approaches arefundamentally different, they may be combined, assome states have done. Thus, it is possible, forexample, to rely principally upon effluentlimitations but to calibrate them according to whatis needed to meet overall water quality standards.

72. While law, policy and the literature concerning theprotection of freshwater have traditionally focusedon the control of pollution of water in rivers, lakesor aquifers, many experts have become convincedthat it is essential to include the entire freshwaterecosystem in protection and preservationprogrammes. Various uses of land may affect waterquality. The United Nations General Assembly hasrecognized the urgency of developing andimplementing water resource protectionapproaches based on the principle of integratedwatershed management, that recognize theinterrelationship between water and land andprovide for the preservation of aquatic ecosystems.Similarly, Agenda 21 identifies the maintenance ofthe integrity of aquatic ecosystems, and theirprotection from degradation on a drainage basinbasis, as the primary objective of freshwatermanagement. In summary, the protection offreshwater from pollution and the preservation ofaquatic ecosystems are not ends in themselves.They are not objectives appropriate only for richcountries. They can actually sustain and increasethe quantity of water available for a variety of uses,from domestic to agricultural and industrial.Safeguarding water supplies is a key objective ofwater resources management in today’s world.

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73. There are several important trends and issues innational water policies and legislation. The mostobvious and significant trend is the incorporationof sustainable development into legislationconcerning freshwater resources. Sustainabledevelopment may appear explicitly in relevantstatutes or may be incorporated implicitly throughan emphasis on the need to strike a proper balancebetween economic development andenvironmental protection. Other aspects ofsustainable development, including a participatoryapproach to water management, transparency inpublic decision-making, and the need to ensurethat minorities, women and children are notsubject to discrimination, also feature in this trend.

74. An increasingly important aspect of the trendtoward incorporation of sustainable developmentinto national water legislation is the conservation offreshwater resources. The rapidly declining supplyof freshwater on a per capita basis, coupled withincreasing pollution and other forms ofdegradation, as well as the impact of global climatechange, are leading governments to emphasize theneed to conserve precious water resources andprotect them against contamination.

75. Another important trend is integrated waterresources management. Countries are increasinglydeciding to manage basins holistically. This entailsconducting an inventory of available waterresources and of the ecosystems within which theyare situated and the uses that are made of thewatercourses and the surrounding land. Surfaceand groundwater are then used and managedconjunctively and water systems themselves aremanaged as an integral part of their drainage basinsrather than as a separate resource. This avoidsproblems and inefficiencies created by separateand often conflicting regulatory regimes fordifferent uses of water, and for uses of land andwater.

76. A crucial aspect of environmental protection andnatural resource management is impactassessment. The notion of Environmental ImpactAssessment is widely recognized as anindispensable element of legislation in these fieldsat regional and national levels. See chapters 3 and21 herein. This is an important part of thepreventive approach to environmental protection.Impact assessments are often broadened toconsider effects other than those on theenvironment, per se, such as those on groups thatmay be affected by the planned project or activity.The World Commission on Dams final reportadvocates for a new decision-making frameworkbased on a rights and risks approach.

77. Finally, many governments are moving in thedirection of various forms of water pricing andprivatization of water service, seeking for greaterefficiency and as a mechanism for generating thefinancing needed to solve public health problemscaused by inadequate water supply and sanitationsystems.

2. Lessons Learned

78. A wealth of lessons has been learned over the pastseveral decades concerning the management offreshwater resources and legislative approaches toregulating the management, use and protection ofthis vital resource. Some of these lessons derivefrom past experience, which has revealed the kindsof approaches that work well and those that havenot performed up to expectations. Other lessonsare based upon a better understanding of both thefunctioning of natural systems, of which waterforms a critical part, and of how these systemsserve to support human life and contribute toeconomic development. These latter lessons arethus based not so much on experience with actualwater legislation, as on knowledge that did notexist when a number of water laws were drafted.

79. Manage freshwater for sustainable development:The World Commission on Environment andDevelopment has defined sustainabledevelopment as “development that meets theneeds of the present without compromising theability of future generations to meet their ownneeds.” Sustainable development includes notonly equity between generations (inter-generational equity) but also equity amongmembers of Earth’s, and individual countries,’present populations (intra-generational equity).More generally, sustainable development entailstaking care in managing freshwater resources toensure that efforts to raise living standards do notcompromise the sustainability of those resourcesand associated ecosystems over time. Economicdevelopment that degrades the resource base onwhich it directly or indirectly depends will beshort-term development only. Degradation offreshwater will threaten the livelihoods of many, ifnot all, and especially the poor.

80. Manage freshwater in a holistic manner: anecosystem approach. In the words of Agenda 21,“Freshwater is a unitary resource. Long-termdevelopment of global freshwater requires holisticmanagement of resources and a recognition of theinterconnectedness of the elements related tofreshwater and freshwater quality.” Managementof water resources is holistic when it is done on acatchment or drainage basin basis. This includes

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both land and water resources, since land use canhave significant impacts on freshwater and relatedecosystems. A holistic approach also implies thatwater resources management will be integrated.Integrated Water Resources Management takes intoaccount not only the ecosystem of which waterforms an integral part but also the many differenthuman activities, both existing and proposed, thatuse and affect freshwater resources. It also has atechnical component (i.e., the optimal operation ofa watershed or a region’s entire system of waterdiversion, storage, conveyance, treatment anddischarge works). Holistic water management is acornerstone of sustainable development becausewithout it, gaps, overlaps and conflicts amongdifferent sectoral management and regulatoryefforts are bound to occur, impairing theireffectiveness. A holistic approach also means thatthe different aspects of water management (i.e., itsqualitative and quantitative aspects) should bemanaged and regulated in an integrated andconsistent manner because they are strictlyinterdependent. This approach, also known as theecosystem approach, is gaining consensus at theinternational level and is increasingly followed inmany national contexts.

81. Ideally, treat all matters concerning freshwater in asingle, integrated water law. The lessons that havealready been discussed have shown thatsustainable development and holistic watermanagement require an integrated approach to thestewardship of freshwater resources. Followingsuch an approach in a coherent manner may bedifficult if the relevant laws are contained inscattered statutes. Therefore, as far as practicable,all aspects of water use and protection should bedealt with in a single piece of legislation. There isa tendency in some recently enacted waterlegislation to follow this approach. The greater theintegration of law, the greater the facilitation ofholistic management, since all aspects of waterregulation may be harmonized in one document.It also helps the drafter to avoid gaps, overlaps,inconsistencies and conflicts in the statutoryscheme.

82. Several countries have gone beyond the integrationof water resources statutes into a single law byenacting laws that address the sustainabledevelopment of multiple resources (e.g., waterresources, forestry resources, land use, biological

communities), in a single law. The same benefitsthat come from integration of all the lawsgoverning a particular resource into a single lawmay be multiplied by the integration of all the lawsgoverning multiple natural resources into a singlelaw.

83. Conserve water through rational urbandevelopment policies: There are well-knownexamples of large population centres that arelocated in arid areas, far from sources of freshwater.These cities have, typically, experienced fastgrowth and inadequate local water supplies, andhave therefore been forced to transport water overlong distances. This usually results in losses ofwater through evaporation and seepage, and oftenworks to the serious detriment of ecosystems andeven populations at the water’s source. While thereare well-recognized limits on the authority ofgovernments to control where people live, this sortof situation should be anticipated and avoidedwherever possible.

84. Build in ways to collaborate with stakeholders: Aparticipatory approach to freshwater resourcesmanagement should be ensured, one that includesall stakeholders in relevant decision-makingprocesses that provides opportunities formeaningful collaboration between water plannersand managers, and interested public and privatesector stakeholders. By harnessing the interest, theknowledge, the financial and staff resources, andthe political support of stakeholders, waterplanning and management authorities can leveragetheir own limited ministerial resources. Amongother benefits, such an approach allows those withknowledge of specific local needs and conditionsto inform planning and management processes,helping to forestall potential future difficulties. Thisapproach also fosters a sense of legitimacy of thoseprocesses and hence of ownership of the resultsthey produce. Ultimately, it can help ensure a morerobust solution to planning and managementchallenges in a given area.

85. Inclusion of environmental impact assessment inproject approval processes: Many countries todayhave legislation requiring the assessment ofenvironmental and other impacts of proposedprojects. Impact assessment is an integral part ofthe preventive approach to environmentalprotection and thus, sustainable development.

Resources

Internet Materials

FAO LAND AND WATER DEVELOPMENT DIVISION, WATER RESOURCES, DEVELOPMENT AND MANAGEMENT SERVICES available athttp://www.fao.org/landandwater/aglw/index.stm

INTERNATIONAL NETWORK OF BASIN ORGANIZATIONS available at www.riob.org

INTERNATIONAL YEAR OF FRESHWATER 2003 available at www.wateryear2003.org/en/

NILE BASIN INITIATIVE available at www.nilebasin.org

PATRICIA WOUTERS, THE LEGAL RESPONSE TO INTERNATIONAL WATER SCARCITY AND WATER CONFLICTS: THE UNITED NATIONS

WATERCOURSES CONVENTION AND BEYOND available at www.thewaterpage.com

THE INTERNATIONAL LAW COMMISSION (“ILC”) available at http://www.un.org/law/ilc/

THE UNITED NATIONS TREATY DATABASE available at http://untreaty.un.org/

THE WATER PAGE WEBSITE available at www.thewaterpage.org

THE WORLD BANK, WATER RESOURCES MANAGEMENT available athttp://lnweb18.worldbank.org/ESSD/ardext.nsf/18ByDocName/WaterResourcesManagement

UNITED NATIONS DEVELOPMENT PROGRAMME, UNDP AND WATER available at http://www.undp.org/water/

UNITED NATIONS ECONOMIC COMMISSION FOR EUROPE, ACTIVITIES ON WATER available at http://www.unece.org/env/water/

UNITED NATIONS EDUCATIONAL SCIENTIFIC AND CULTURAL ORGANIZATION, THE WATER PORTAL available athttp://www.unesco.org/water/

UNITED NATIONS ENVIRONMENT PROGRAMME, ACTIVITIES IN FRESHWATER available athttp://www.unep.org/themes/freshwater/

UNITED NATIONS ENVIRONMENT PROGRAMME, ENVIRONMENTAL LAW PROGRAMME available at www.unep.org/dpdl/law

WORLD HEALTH ORGANIZATION, WATER HOMEPAGE available at http://www.who.int/health_topics/water/en/

86. Groundwater and surface water should not betreated separately: While there are differencesbetween surface and groundwater that make someprovisions applicable only to one water body andnot the other, water codes should treat surface andgroundwater as parts of a unified planning andpermit system. This is especially important foraquifers that are hydrologically connected with asurface watercourse. In such circumstances,groundwater extraction and surface waterdiversion can have mutually reinforcing effects.

Stephen C. McCaffrey, Distinguished Professor andScholar, University of the Pacific, McGeorgeSchool of Law

Maria Cristina Zucca, Associate Legal Officer,UNEP

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Text Materials

Alexander Kiss, Dinah Shelton, INTERNATIONAL ENVIRONMENTAL LAW, (third edition, Transnational Publishers Inc.,2004).

Attila Tanzi, THE UNITED NATIONS CONVENTION ON THE LAW OF INTERNATIONAL WATERCOURSES: A FRAMEWORK FOR

SHARING, (Kluwer Law International, 2001).

ATLAS OF INTERNATIONAL FRESHWATER AGREEMENTS, (UNEP, 2002).

Augusto Dante Caponera, THE LAW OF INTERNATIONAL WATER RESOURCES: SOME GENERAL CONVENTIONS, DECLARATIONS

AND RESOLUTIONS ADOPTED BY GOVERNMENTS, INTERNATIONAL LEGAL INSTITUTIONS, AND INTERNATIONAL ORGANIZATIONS, ON

THE MANAGEMENT OF INTERNATIONAL WATER RESOURCES, (Food and Agriculture Organization of the United Nations,1980).

Bryan Randolph & Ruth Suseela Meinzen-Dick, NEGOTIATING WATER RIGHTS, (ITDG Pub., 2000).

Edward H.P. Brans, THE SCARCITY OF WATER: EMERGING LEGAL AND POLICY RESPONSES, (Kluwer Law International, 1997).

Gerhard Loibl, AGREEMENTS FOR MANAGEMENT OF SHARED GROUNDWATER RESOURCES, IN GROUNDWATER LAW AND

ADMINISTRATION FOR SUSTAINABLE DEVELOPMENT, (edited by Sergio Marchiso, Fatma Bassiouni and Maria CristinaZucca).

GLOBAL ENVIRONMENTAL OUTLOOK 3, (UNEP, 2002).

GUIDEBOOK FOR POLICY AND LEGISLATIVE DEVELOPMENT ON CONSERVATION AND SUSTAINABLE USE OF FRESHWATER RESOURCES,(UNEP, 2005).

Giuseppe Cataldi, LEGAL ASPECTS OF GROUNDWATER: SOURCES AND EVOLUTION OF INTERNATIONAL LAW, IN GROUNDWATER

LAW AND ADMINISTRATION FOR SUSTAINABLE DEVELOPMENT, (edited by Sergio Marchiso, Fatma Bassiouni and MariaCristina Zucca).

International Bureau of the Permanent Court of Arbitration, RESOLUTION OF INTERNATIONAL WATER DISPUTES, (Aspen,2003).

Patricia Birnie and Alan Boyle, INTERNATIONAL LAW AND THE ENVIRONMENT, (second edition).

Patricia Wouters, INTERNATIONAL WATER LAW: SELECTED WRITINGS OF PROFESSOR CHARLES B. BOURNE, (Kluwer LawInternational, 1997).

Stephen C. McCaffrey, THE LAW OF INTERNATIONAL WATERCOURSES – NON NAVIGATIONAL USES – (Oxford, 2001).

THE RELATIONSHIP BETWEEN THE 1992 UN/ECE CONVENTION ON THE PROTECTION AND USE OF TRANSBOUNDARY

WATERCOURSES AND INTERNATIONAL LAKES AND THE 1997 UN CONVENTION ON THE LAW OF THE NON-NAVIGATIONAL USES

ON INTERNATIONAL WATERCOURSES - REPORT OF THE UN/ECE TASK FORCE ON LEGAL AND ADMINISTRATIVE ASPECTS, preparedby Attila Tanzi.

VITAL WATER GRAPHICS – AN OVERVIEW OF THE WORLD’S FRESH AND MARINE WATERS, (UNEP).

UNEP ENVIRONMENTAL LAW TRAINING MANUAL, (UNEP, 1997).

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DESERTIFICATIONChapter 19

19. DESERTIFICATION

I. Introduction

1. In all countries of the world, land is a criticalresource and the basis for survival. Its degradation,therefore, threatens not only economic but also thephysical well-being. Soils in drylands areparticularly vulnerable to degradation becausethey are deficient in moisture, humus and nutrients.New soils in these habitats are formed over longperiods of time, from a few thousand to millions ofyears. A single centimetre of soil may take fromtwenty to a thousand years to form. Yet, thiscentimetre can be, and is often destroyed or lostwithin seconds when the land is mistreatedthrough chemical pollution, over-irrigation, oreroded by water or wind.

2. This chapter discusses desertification, a negativetransformation that results primarily from man'sover-dependence, overuse and/or mismanagementof inherently fragile lands, especially dry lands.Land degradation, which result from the poor landuse practices is of global occurrence, leaves nocontinent unaffected. UNEP has estimated thatglobally, about fifty-one million square kilometresis threatened by desertification, which supportsone fifth of the world population. There are over110 countries, including more than 80 developingcountries affected by desertification. In Africaalone, some 36 countries are seriously affected bydesertification. Globally, there are over 250 millionpeople who are directly affected by desertification.

3. This chapter reviews and discusses the problem ofdesertification: what it is, its causes, manifestations,effects and scope. It proceeds to provide anoverview of international law that has beendeveloped to address desertification and theattendant ecological and socio-economicproblems, primarily by examining the scope of the1994 United Nations Convention to CombatDesertification in Countries experiencing SeriousDrought and/or Desertification, particularly inAfrica (“Convention”) and the applicability of non-legally binding instruments for prevention andcontrol. In establishing rules and regulations toaddress a particular environmental problem,international instruments, including theConvention, require parties to enact andimplement laws at national level and examples ofnational laws to implement the Convention.

II. International Context

1. The Problem

4. Desertification is defined as the reduction or loss ofbiological or economic productivity of landresulting from land use or from processes such aswater or wind erosion. The United NationsGeneral Assembly coined the term desertificationwhen it decided to convene a conference on thesubject in the wake of several years of harshdrought and famine in Africa, particularly in theSahel region. Desertification does not refer to theexpansion of existing deserts. The Conventiondefines desertification as, “land degradation in arid,semi-arid and dry sub-humid areas resulting fromvarious factors, including climatic variations andhuman activities.” The Convention is alsoconcerned with dryland areas, which aresusceptible to desertification.

5. Dryland areas are conventionally defined in termsof water stress so that the ratio of mean annualprecipitation (“P”) to the mean annual potentialevapotranspiration (PET) is less than 1.0. The P/PETfor arid, semi-arid and dry sub-humid drylands fallswithin the range of 0.05 to 0.65. (See also article1(g) of the Convention). The hyperarid regions (truedeserts) where P/PET is less than 0.05, as well asareas that lie within humid ecosystems with P/PETof more than 0.65, are excluded from theConvention areas of concern although they mayalso be affected by land degradation.

6. The arid, semi-arid and dry sub-humid areas cover6,150 million hectares, or about 47% of total landarea in the world. Drylands are ecologically fragileareas; they are characterized by low rainfall that isalso seasonal, high rates of evapotranspiration thatexceed the rate of precipitation, highly variablerainfall and high potential for water logging andsalinization, especially of irrigated lands.

7. Drylands are particularly vulnerable todesertification because they recover slowly fromdisturbance. With a limited supply of water, newsoils form very slowly; salts once accumulated tendto remain where they are; and soils that are dry,poorly held together, and sparsely covered byvegetation are susceptible to erosion. Infrequentrains are particularly erosive, especially wherevegetation cover is sparse. Despite the harshenvironmental conditions prevailing in thedrylands, they still provide much of the world’sgrain and livestock and constitute critical habitatsthat support much of the game animals includinglarge mammals and migratory birds.

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DESERTIFICATION Chapter 19

2. Causes and Consequences

8. Desertification is the result of complex interactionbetween physical, chemical, biological, socio-economic and political factors of local, nationaland global nature. The main causes ofdesertification include: deforestation, clearance ofmarginal lands for cultivation, poor management ofarable land including over use of fertilizers andpesticides, poor irrigation practices, uncontrolleddumping of wastes, deposition of pollutants fromthe air, encroachment of desert sands ontocroplands and poor land-use planning. Suchhuman activities degrade soil fertility and otheruseful components, loosen soil structure andreduce vegetation cover, thereby exposing land toerosion by rain and wind. Landslides also occureasily.

9. Similarly, maintaining large numbers of livestockleads to overgrazing and to soil compaction due toconstant trampling of the ground by animals. Theimpact loosens the soil structure, affects the healthof plant communities, and exposes soil to erosionby wind and water. These ultimately render theland useless.

10. Climate change could also affect agriculture bycausing long-term changes in agro-ecosystemsthrough increased frequency and severity ofextreme weather events, such as heat waves,droughts, flooding and cyclones, all of which couldexacerbate soil erosion and affect patterns of plantdiseases and pest infestation.

11. Another factor is chemical degradation of soils,which causes loss of nutrients and/or loss oforganic matter, salinization, pollution andacidification. The physical processes involvedinclude compaction, sealing and crusting,waterlogging, and subsidence of organic soils. Theother agents of soil degradation include rising sea-level due to either subsidence or climate warming,flooding of valleys for hydroelectric purposes,tourism development of long beaches and in themountains, and expansion of urban and industrialareas.

12. In addition, international trade patterns can lead toshort-term exploitation of land resources for exportpurposes, leaving negligible profit at thecommunity level for land rehabilitation. Similarly,the development of an economy based on cashcrops results in the distortion of local markets andpromotes overexploitation of land.

3. Scope and Magnitude of the Problem

13. The three examples (Chile, China and Africa)below demonstrate that the processes of landdegradation leading to the loss or reduction offertility and productivity of land are not limited toone country or continent. They have continued,and continue to take place, in varying degrees, allover the world, making desertification a globalproblem in terms of occurrence. Besidesoccurrence, the problem of desertification is globalin many other respects. For example, there areclose linkages between desertification and poverty,which has implications for global humanitarianassistance.

14. In Africa, an estimated 500 million hectares of landhave been affected by soil degradation since 1950,including 65% of the regions agricultural land. InLatin America, land degradation affects 300 millionhectares of land as a result of soil erosion, loss ofnutrients, deforestation, overgrazing and poormanagement of agricultural land. In Europe,approximately 12% of the land (115 millionhectares) is affected by water erosion. In NorthAmerica, about ninety-five million hectares areaffected by land degradation mainly due toerosion. In Asia, out of a total land area of 4.3billion hectares, the region contains some 1.7billion hectares of drylands.

15. Desertification problems raise a number ofenvironmental issues requiring effective laws at theinternational and national levels to provide basisfor joint and individual actions to address them.These issues include:

• Recognizing that some lands are ecologicallyfragile and require proper management toavoid turning them into deserts;

• Controlling of human activities on ecologicallyfragile lands to prevent desertification;

• Creating regulatory control of deforestation andsoil erosion, among others, to reduce andprevent land degradation;

• Controlling population growth to prevent andreduce negative population impacts on fragilelands;

• Rehabilitating desertified lands and landsexperiencing impacts of drought that mighteventually lead to desertification;

• Acting to address socio-economic impacts ofdesertification and drought in affected areas;

• Integrating the development of lands inenvironmentally sensitive areas to sustainabledevelopment of the areas; and

• Encouraging of diversification of cropping

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systems as well as the adoption of appropriateagricultural technologies, among others, to haltand reverse land degradation.

III. National/Regional Examples

1. Chile

16. Part of Chile, which lies between the Pacific Oceanto the West, Argentina to the South and Atacamadesert to the North, is arid. It receives rainfall forshort periods in the winter and experiences longdry periods of eight to nine months. Its topographyconsists of many rugged ranges. These featuresmake the land fragile. As a result of miningactivities in the region, large areas were clearedand agricultural activities and livestock raisingwere intensified by the local people, especially inthe short wet periods to meet demands of theincreasing populations, without proper soilmanagement measures.

17. Over time, human activities led to massive loss ofvegetation cover and organic matter and exposedthe light-textured soils to the heat of the sun duringthe dry season and to the direct action of heavyrains in the short wet seasons. Heavy soil erosionset in throughout the entire area, especially wherethere were human settlements, resulting in thedecimation of vegetation. In addition, heavy lossesof top soil occurred. These changes led toreduction in productivity of the land and toreduced human development activities, makingthe area to be declared by the Chilean government,"a zone of extreme poverty". Because subsistenceand development activities could no longer takeplace on the land, there has been continuousemigration of people from the area, a phenomenonthat has created a distortion in the populationdistribution by age and sex, with accompanyingeffects on family structures.

2. China

18. Much of the land in China to the north of thecountry where the Gurbantunggut, Taklimakan,Komdag, Badin Jaran and other deserts in thecountry are found is dry. Most of the lands receiveless than 200 millimetres of annual rainfall withevaporation reaching as high as 4,000 millimetres.Prior to 1956, the country had gone through acentury of political turmoil, during whichdesertification advanced unhindered across thenorthern dry lands as wind-driven sand dunesswept across the northern part of the country,covering agricultural lands on the river banks andcausing people to retreat southwards.

19. The impacts of the shifting dunes were exacerbatedby intensive deforestation and plundering ofagricultural and other activities of the colonizingpowers that occupied China at the time. Theseactivities removed vegetation cover, caused heavysoil erosion and exposed more lands to movingsand dunes, thus, rendering more landunproductive. Upon regaining its status theChinese government took several measures tocombat the process of desertification withappreciable success.

3. Africa

20. In the areas south of the Sahara desert coveringBurkina Faso, Mali, Niger, Chad, Gambia andother countries, rainfall is very scanty,evapotranspiration far exceeds precipitation duringmost months of the year and only one rain-fed cropcan be grown in a normal year without irrigation.The climate is generally harsh- a short rainy season,often characterized by violent and unpredictableshowers followed by a long dry season. Therefore,the area is ecologically fragile.

21. For many years, people living in these areaspracticed shifting cultivation- cutting down trees,slashing and burning portions of land forcultivation for a certain length of time and thenabandoning them to regenerate while they movedto newer areas. The increasing population led tothe extension of agricultural lands closer to thedesert margins without allowing enough time forvegetation regeneration. Areas along rivers in thearea were also intensively and extensively irrigatedwithout proper checks on water logging andsalinization. Over time, these activities exposedmuch of the soil to the sun, heat, heavy rains andsoil erosion during the wet seasons, and tosweeping desert sand dunes during the long dryperiods.

22. As more land became useless and productivityreduced, famine and poverty set in and manymigrated from their homelands to urban centres.The situation worsened due to the long periods ofdrought between 1968 and 1973, and between1982 and 1985, which led to the drying up ofmajor rivers in the area. The entire belt was turnedinto a desert adjoining the Sahara desert, whichresulted in loss of livestock due to lost pastures,severe famine, deaths to many people in thecountries, massive migration, and the desperateneed for food aid for millions of people in theseareas. According the Report of the United NationsConference on Desertification (Nairobi, 1977),between 100,000-250,000 people died and 3.5million heads of cattle perished as a result of the

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Sudano-Sahelian drought of 1968-1973. Nodisaster of a similar magnitude had occurredelsewhere in the world.

IV. The International Legal Regime

23. As a result of the problems explained above,especially the situation in Africa, the internationalcommunity took steps to develop legally and non-legally binding instruments establishing rules andregulations that provide the basis for action tocombat desertification and mitigate the impacts ofdrought. There are a number of conventionsdealing with matters related to land degradation,desertification and/or drought, such as the UnitedNations Framework Convention on ClimateChange, which is discussed in more detail inChapter 10 above. However, the only bindinginternational agreement focusing specifically onthe problem of desertification, land degradationand drought is the United Nations Convention tocombat Desertification in Countries experiencingSerious Drought and/or Desertification, particularlyin Africa, adopted in Paris, France, on 17 June1994, and entered into force on 26 December1996. It consists of a preamble, six parts and fiveRegional Implementation Annexes for Africa, Asia,Latin America and the Caribbean, NorthernMediterranean and Central and Eastern Europerespectively. It has currently (as of November2005) 191 parties, making it a global treaty.

24. The objective of the Convention, provided inarticle 2, is "to combat desertification and mitigatethe effects of drought in countries experiencingserious drought and/or desertification, particularlyin Africa, through effective action at all levels,supported by international cooperation andpartnership arrangements..." The article furthercalls on all parties to take appropriate measures toprevent and mitigate the problems in those areasthat are considered to be environmentally sensitiveand prone to drought and desertification and torestore areas that have, or are experiencingnegative impacts that might eventually lead todesertification. Parties are also required to addressunderlying causes of desertification, such as highrates of population growth and lack of necessaryinformation on the part of local communities. Inaddition, parties are required to address the socialand economic effects of desertification, such asfamine and poverty. The Convention requires thatall steps and actions be integrated as part ofsustainable development of affected areas.

25. The Convention creates three types of obligationson parties to be fulfilled as they are guided by theestablished principles (1) general and specific

obligations of all parties, (2) obligations of affectedparties, and (3) obligations of developed countriesthat are parties to the Convention.

26. Article 4(1) and (2) requires that any plans andother strategies to address the problems shall becoherent, integrated, long-term and coordinated.Strategies to address the causes as well as thesocio-economic aspects of drought anddesertification would, for example, include soilerosion control measures, famine reliefprogrammes, and poverty eradication measures.Parties are also obliged to give priority to affectedAfrican countries, without neglecting affectedparties in other developing regions.

27. Further, article 4(2)(d)-(f) obligates parties topromote cooperation amongst them at all levels:national, sub-regional, regional and international.Cooperation allows them to create appropriateinstitutional mechanisms and to use existingbilateral and multilateral financial mechanisms andarrangements to facilitate their efforts to protect andconserve the environment in ways that can preventor minimize desertification and drought. Thiswould require, for example, that countries establishjoint funds to finance programmes and projectsundertaken to combat desertification.

28. By the time the Convention entered into force,some countries had already taken some measuresto combat desertification and the effects of drought.For example, African States had already establishedthe Cairo Programme of Action during theirMinisterial Conference on Environment in 1985,through which pilot projects were beingundertaken in some countries with support of theClub du Sahel, UNSO, CILSS and other partners.In recognition of this fact, article 4(1) of theConvention places an obligation on all parties tomake use of such existing and future arrangementsof a similar nature between two or more countriesto jointly or individually carry out agreed plans,actions and strategies for combating desertificationand the effects of drought, including rehabilitationof degraded lands.

29. In article 8, the Convention recognizes that otherinternational agreements with similar objectiveexist. Such other agreements have objectives thatrelate to the integrated development of land,control of soil erosion, deforestation, reclamationof degraded land and prevention of degradation ofbiological productivity of land. They include theConvention on Biological Diversity and the UnitedNations Framework Convention on ClimateChange. Article 8(1) of the DesertificationConvention therefore directs that where partieshave made commitments to conduct activities

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under such other international agreements, theactivities shall be coordinated with those under theConvention in order to derive maximum benefitsand to avoid duplication of effort.

30. There can be little doubt that implementation of thevarious agreed measures would be costly. Inrecognition of this fact, parties agreed that,depending on their capability, they would makefinancial resources available for establishment oftraining centres; and for scientific research andother actions that the convention requires.However, because of the limited financialresources of developing countries, especially thosein Africa, developed countries that are parties to theDesertification Convention have an obligationunder articles 20 and 21 to financially support theirdeveloping counterparts. The Convention furtherrequires developed country parties to mobilizefunds from the Global Environment Facility(“GEF”), and from other sources, and to channelthe resources to developing country parties in orderto meet this requirement. For example, thegovernment of Canada may individually providefunds and technological assistance to thegovernment of Burkina Faso to developappropriate soil erosion control techniques. Thegovernment of Canada may also, jointly with thegovernment of the Netherlands, provide similarsupport. Developed country parties can alsocollaborate with the Conference of the Parties(“COP”) under the Convention to create otherfinancial mechanisms and sources for funds frommultilateral financial institutions such as the WorldBank and the International Monetary Fund. Toallow parties to work with institutions created bythe Convention to implement its provisions, eachparty is required to appoint a representative toserve as the focal point to liaise with theConvention Secretariat and the COP.

31. The Convention’s obligations for preventing and/orminimizing the effects of desertification anddrought make it necessary for parties to have ampleaccurate and relevant information on variousmatters. Availability of accurate and sufficientinformation and its proper utilization requiresresearch on various aspects of the desertificationproblem and adoption of appropriate technologies.Capacity to gather information, conduct researchand adopt appropriate technologies varies greatlybetween developed countries, developingcountries, and least developed countries.Therefore, articles 17(1) and 18 require parties,according to their respective capabilities, topromote technical and scientific cooperation in thefields of combating desertification and mitigatingthe effects of drought through appropriate nationaland sub-regional institutions.

32. In addition to obligations of all parties, article 5(c)requires parties affected by desertification anddrought to take steps and actions within theircountries to address the problems of desertificationand drought and their underlying causes, includingecological and socio-economic factors. Forexample, to minimize the intensive cultivation ofmarginal lands that leads to soil erosion anddesertification, parties are responsible for takingmeasures to reduce the rate of population growth.Further, article 5(a) and (b) obligates them to givepriority to addressing the problems. This means,for example, that in government budgets,combating desertification and drought should begiven funding priority.

33. Articles 9 and 10 of the Convention introducesobligations with respect to National ActionProgrammes (“NAPs”), which are key instrumentsfor implementing the Convention. Affectedcountries are required to develop NAPs that willcombat the problem of desertification in theirparticular country. The NAPs should suit eachcountry’s domestic circumstances. The informationto be contained in the NAPs is stipulated in article10 and includes: factors identified by each party ascontributing to desertification and drought;measures necessary to combat them; specificationof roles to be played by governments, localcommunities and other users of natural resourcesin combating desertification and drought; resourcesavailable to combat desertification and droughtand necessary resources that are still lacking. Theprogramme areas for combating desertification anddrought that may be included in NAPs arestipulated in article 10(2), (3) and (4) and include:improvement and/or establishment of the earlywarning systems and food security; development ofsustainable irrigation programmes; establishmentof institutional and legal frameworks; promotion ofcapacity-building, promotion of environmentaleducation; and strengthening capabilities forassessment and observation of hydrological andmeteorological services. Once NAPs aredeveloped, article 9(1) requires parties to makethem public and implement programmes stipulatedin them.

34. To harmonize, complement and increase theefficiency of NAPs, affected countries that areparties to the Convention are also required underarticle 11 to jointly prepare and implement sub-regional and regional action programmes (“SRAPs”and “RAPs”). In formulating the SRAPs and RAPs,parties are called upon to ensure that theprogrammes are trans-boundary in nature, and thatthey do not duplicate efforts of nationalprogrammes but rather complement them andincrease their efficiency. The five regional

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implementation Annexes to the Conventioncontain specific guidelines on the content, stepsand actions that need to be taken depending on theparticular circumstances of each region.

35. Under article 17 and 18, the Convention requiresparties to collect and analyze relevant informationand data through studies and research for practicalapplication. Parties are also required to facilitateand strengthen a global network of institutions forcollecting, analyizing and exchanging information;to link national, sub-regional and regional data andinformation collection centres to the globalinstitutions; and to promote and support researchactivities on relevant areas depending on theircapacities. In addition, developed countries thatare parties to there to are required to develop andtransfer relevant technologies, information, know-how and best practices on desertificationprevention and control to developing parties asnecessary.

36. Article 19 obligates parties to build the capacity ofnational institutions, especially of developingcountries, as well as the capacity ofintergovernmental organizations through training,financial support, establishment of extensionservices and by disseminating information onenvironmentally sound methods that can facilitatemeasures to combat desertification and mitigatethe effects of drought.

37. To provide the basis and legitimacy for necessarysteps and actions, articles 5(e), 10(4) and 16(g)require parties to strengthen and enforce existingnational laws on subjects related to prevention andcontrol of desertification and drought, and to createand enforce relevant laws where laws are lacking.Relevant laws may be created, for example, in theform of acts of parliament, local authorityregulations and executive orders and decreesproviding for programmes and actions forcombating desertification and the effects ofdrought.

38. Further, parties are required by articles 5(d) and10(e)-(f), among other provisions, to fully involvelocal citizens, NGOs and Community-BasedOrganizations (“CBOs”) in formulating the plan ofaction for combating desertification and mitigatingthe effects of drought. The NGOs and the CBOshave major roles to play in participatory processes,particularly in the organization of localcommunities for effective participation incombating desertification. The Convention,therefore, advocates a bottom-up approach andstresses the crucial roles of NGOs and CBOs in itsimplementation.

39. To allow effective implementation of agreed steps,actions and programmes, the Conventionestablishes a number of key institutions, includinga Conference of the Parties, to be the politicaldecision-making body. This supreme bodycomprises of representatives of all parties to theConvention. Under articles 22, 30 and 31, the COPis the organ responsible for reviewing reportssubmitted by parties detailing how they arecarrying out their commitments as well asfacilitating the exchange of information and othermatters mandated by the Convention.

1. Committee on Science and Technology

40. The steps, actions and programmes that aremandated by the Convention require substantialscientific and technological studies, research andinformation, as well as development, adoption andtransfer of appropriate technologies to developingcountries. To these ends, a Committee on Scienceand Technology (“CST”) was established underarticle 24 as a subsidiary body to the COP. TheCommittee is composed of governmentalrepresentatives who have expertise andcompetence in fields relevant to desertification anddrought and is the key organ with respect to thesematters.

41. In accordance with articles 18 and 19 of theConvention, functions of the CST include givingadvice and providing the COP with information onscientific research, and on specific issuesconcerning the state of the art in technology that isrelevant to combating desertification andmitigating the effects of drought.

42. The COP may also appoint ad hoc panels toprovide, through the CST, relevant information,data and advice on specific issues. The CST alsoprovides advice to the COP on the structure,membership and maintenance of the roster ofindependent experts as well as suggesting possibleresearch priorities for particular regions and sub-regions.

43. The other functions of CST relate to data andinformation collection, analysis and exchange, aswell as evaluating the application of science andtechnology to research projects aimed at theimplementation of the Convention. Some of thekey issues that the CST has been concerned with inthe context of its implementation of the Conventioninclude establishment and testing of benchmarksand indicators, integration of traditional knowledgeand technologies with modern science, andestablishment of the Early Warning Systems fordrought and crop forecasting through remote

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sensing, atmospheric weather monitoring andwater conservation monitoring, among others.

2. Resolution of Disputes

44. Disputes are likely to arise on matters concerningthe interpretation or applicability of a globalconvention such as the Desertification Convention.Issues concerning technology transfer, funding andmany others that the Convention authorizes arelikely to generate disputes and claims amongparties that would require resolution. As a first step,article 28(1) of the Convention requires that a partythat has a dispute or claim against another partymust inform that other party that there exists adispute between them. Subsequently, theConvention provides that disputes are to be settledin one of three ways.

45. First and foremost, disputes are to be settledthrough negotiation, or other peaceful means ofchoice to the parties involved. If one or moreparties to a dispute do not wish to resolve theirclaims or disputes through negotiation, they aremandated to pursue other peaceful means, such asconciliation.

46. Second, under article 28(2)(a), disputes can besettled through arbitration. This provision isapplicable to a party that is a government, or aregional economic integration organization, suchas the European Community, if, at the time ofbecoming a party to the Convention, or at anyother time thereafter, it declares in writing andsubmits the written declaration to the ConventionSecretariat, stating that it recognizes arbitration as acompulsory means of resolving disputes in relationto any party that also accepts arbitration.

47. Third, disputes may be resolved by theInternational Court of Justice (“ICJ”) uponsubmission to it by the disputing parties. Thisoption is open to state parties if they havesubmitted written declarations to the Secretariat,stating that dispute settlement between the stateissuing a declaration and any other state that alsoaccepts compulsory resolution by the Court shallbe submitted to the Court.

48. If parties fail to resolve disputes betweenthemselves within a period of twelve months of thenotification of one party by another that a disputeexists between them, the Convention mandatesthat the dispute shall be resolved throughconciliation at the request of any of the partiesinvolved. This provision applies to governments, aswell as regional economic integrationorganizations that are parties. Disputes shall also

be referred to conciliation at the request of a party,if parties to the dispute are governments and one ormore of them have not, by declaration, acceptedresolution by arbitration or by submission to theICJ.

3. Developments since Adoption

49. Since the Convetion was adopted and entered intoforce, a number of activities have been undertakenby parties and by the Convention’s organs toimplement its provisions. For example, manycountries have developed, implemented andsubmitted reports on their NAPs to the ConventionSecretariat, in addition to creating andstrengthening a variety of domestic laws toimplement the Convention. As of May 2005, morethan 75 NAPs had been prepared. In Africa, all thesub-regions have developed the SRAPs in thecontext of UNCCD implementation.

50. In addition, some (sub-)regions have preparedresource mobilization strategies to support theimplementation of SRAPs. Among other activities,the fourth COP adopted Annex V, the RegionalImplementation Annex for Central and EasternEurope, which became the latest addition to thetext of the Convention. The Annex providesguidance to parties in the regions on thedevelopment of NAPs and on other mattersconcerning implementation of the Convention.

51. A total of seven sessions of the COP have been heldsince the adoption of the Convention: in Rome(1997), Dakar (1998), Recife (1999), Bonn (2000),Geneva (2001), Havana (2003), and Nairobi(2005). With effect from 2001, COP sessions wereto be held on a biannual basis, interchanging withsessions of the Committee for the Review of theImplementation of the Convention.

52. Other notable developments of the Conventionsince its adoption include:

• The establishment of the Committee for theReview of the Implementation of theConvention (“CRIC”);

• COP-6 accepted the GEF as the financialmechanism of the Convention and in 2005 aMOU between the GEF and the Conventionwas concluded as enhanced collaboration; and

• Convening the first meeting of the Group ofExperts in Hamburg, Germany, in November2002.

• In 2005, the establishment of Ad Hoc WorkingGroup to improve the procedures forcommunication and information, as well asreporting.

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V. National Implementation

53. The Desertification Convention creates obligationson parties to take legal and regulatory measures toaccomplish its objectives, namely the preventionand/or reduction of land degradation, therehabilitation of degraded land, the reclamation ofdesertified land and the mitigation of the effects ofdrought. Parties are required to take legal andregulatory measures to meet these ends as part ofsustainable development of ecologically sensitivehabitats, namely arid, semi-arid and dry sub-humidareas. In this respect, the Convention particularlyobligates parties to:

• Strengthen relevant existing legislation, toestablish long-term policies and actionprogrammes, to provide an enablingenvironment to combat desertification andmitigate the effects of drought under article5(e);

• Create laws, where appropriate, to establishand facilitate long-term policies and actions tocombat desertification and mitigate the effectsof drought under article 5(e);

• Create legal and institutional frameworks tofacilitate the implementation of NationalAction Programmes for combatingdesertification and the effects of drought underarticle 10(4);

• Develop national legislation on the basis ofwhich information may be exchanged on localtraditional knowledge on combatingdesertification and mitigating the effects ofdrought under article 16(g);

• Promote, finance, transfer, acquire, adapt anddevelop environmentally sound andeconomically viable technologies that arerelevant for combating desertification andmitigating the effects of drought throughappropriate legislation under article 18(1);

• Create legal frameworks to build the capacityof people, educate them and raise theirawareness on measures to combatdesertification and mitigate the effects ofdrought as required by article 19(1)(j); and

• Incorporate into the National ActionProgrammes, institutional, legal and regulatoryframeworks that would, among other things,ensure proper natural resource managementand provide security of land tenure for localpeople under article 8(3)(c) (iii) of the RegionalImplementation Annex for Africa.

54. Legislation on steps, actions and activities toachieve the obligations of the Convention may, forexample, contain provisions for soil erosion controland prohibition of deforestation. Three examples(China, Malawi and Cameroon) demonstrate

various legal measures that have been taken toimplement the Convention and how legalmeasures can be used to address desertification,drought and related problems. The examples alsohighlight essential components of implementingnational legislation, including purposes orobjectives of the legislation, definitions, especiallyof unfamiliar words used, provisions for keymeasures stipulated in the Convention, provisionsfor implementing bodies and organs, and financialand enforcement mechanisms.

1. China

55. China has been seriously impacted bydesertification. An estimated 27% of the country’sland mass is desertified with an average of 2,460square kilometres of land being lost to deserts eachyear. Nearly 400 million people live in these areas,and the economic loss to China has been estimatedat around US $6.5 billion per year. China signedthe Convention on 14 October 1996, and ratified iton 18 February 1997, becoming the sixty-fourthparty thereto.

56. In its implementation of the Convention'sprovisions on creating and strengtheningappropriate legislation on desertification anddrought, China passed a Law of the People'sRepublic of China on Desert Prevention andTransformation (“Desert Prevention Law”) inAugust 2001, which took effect on 1 January 2002.

57. In addition to providing the guiding principles, itrequires a number of specific prevention andcontrol measures, including support by the state ofscientific research and technological developmenton desert prevention and transformation asstipulated in article 7.

58. Further, article 33 provides for the application ofeconomic instruments such as fund subsidies,financial discounts and tax exemptions toencourage people to take measures to preventdesertification and transform desertified anddegraded lands. Article 38 and other provisions ofthe Desert Prevention Law also provide forpenalties for activities that lead to desertificationand those that tend to defeat land restorationmeasures.

59. Articles 4, 5 and other provisions of the DesertPrevention Law provide for its implementation andenforcement by a number of Chinese institutionsand organs, including the State Council withoverall leadership, local governments at countyand other levels and the administrativedepartments in charge of forestry, agriculture,irrigation works, land, environment protection, and

meteorology. Among other sources, funds forimplementation of desertification control andprevention measures in affected areas are to bederived from financial budgets and allocations forthe areas as stipulated in article 32.

60. Sample provisions of China’s national legislationdealing with desertification are as follows:

61. Pursuant to the provisions of China's law ondesertification, China, in October 2002, forged avery important partnership with the Council of theGEF in which the Council endorsed in Beijing a"Country Programming Framework" (“CPF”)covering a ten-year period beginning in 2003. TheFramework between the GEF and China willsupport a sequenced set of priority activities thatstrengthen the enabling environment and buildinstitutional capacity for integrated approaches tocombat land degradation, desertification and tomitigate the effects of drought.

62. The programme adopts an integrated ecosystemmanagement model for widespread replication.The total estimated cost of the CPF over a ten-yearperiod is US $1.5 billion. The ChineseGovernment will contribute US $700 million andmobilise an additional US $615 million from otherdonors to finance baseline activities. Work on theproject commenced in 2003.

2. Malawi

63. Malawi occupies the southern part of the EastAfrican Rift Valley. Malawi has an area ofapproximately 119,140 square kilometres, 20% ofwhich is covered by water. Its topography andclimatic conditions are greatly varied. Out of a totalpopulation of over 9,838,486, 29% of Malawi’scitizens live in dry lands, mainly in the Rift Valleyfloor districts. Despite disappointing results, themajority of its population has over the yearscultivated maize. Wood fuel constitutes 90% oftheir domestic energy source, especially in the drylands. This means that the rate of degradation ofvegetation and subsequently soils has been veryhigh. These factors describe Malawi's susceptibilityto desertification and drought-related problems thathave been discussed in this chapter.

64. In order to facilitate its efforts to combatdesertification, Malawi became a party to theDesertification Convention in June 1996, and hassince taken a number of legislative and otherimplementing measures. In this respect, a NationalEnvironmental Management Act was enacted in1996, to provide a comprehensive framework forthe management of its environment and naturalresources. In addition, the Forestry Act of Malawienacted in 1997, and took effect the same year aspart of the country's implementation of theConvention. The preamble to the Forestry Actspecifically states that the purpose of the Act is,among other things, to provide for the protectionand rehabilitation of environmentally fragile areas.

65. Malawi's Forestry Act, Sections 4, 5, 15 and 16,establishes a number of offices, institutions andmechanisms for implementation of its provisions.These include the office of the Director of Forestrycharged with the responsibility of planning for theactivities intended to meet to set objectives, and aForestry Management Board. Section 55 of theForestry Act establishes a Forest Development andManagement Fund as a financial mechanism tosupport the various implementation andenforcement activities provided for.

66. Sample provisions of the Forestry Act of Malawi areas follows:

Preamble: “An Act to provide for…protectionand rehabilitation of environmentally fragileareas…”

Purposes of the Act (section 3): “(a) to identifyand manage areas of permanent forest asprotection or production forest in order tomaintain environmental stability; to prevent

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China, Desert Prevention Laws articles 1-3

1. This Law was formulated in order to prevent landdesertification, to transform desertified land, toprotect the safety of environment and to promotethe sustainable development of economy andsociety.

2. Desertified land referred to in this Lawmeans the land that has already been desertifiedand the land that is obviouslygoing to be desertified. The specific scopeshall be clarified by the planning onnational desert prevention andtransformation approved by the StateCouncil.

3. Desert prevention and transformation shall followthe following principles: (1) planning desertprevention and transformation uniformly,adjusting it according to the circumstances,carrying it out step by step, and insisting on thecombination of regional and key prevention andtransformation.

resource degradation and to increase socialand economic benefits; (b) to augment, protectand manage trees and forest on customaryland in order to meet basic fuelwood andforest produce needs of local communitiesand for the conservation of soil and water; (c)to promote community involvement inconservation of trees and forests in forestreserves and protected forest areas inaccordance with the provisions of this Act; (d)to empower village natural resourcemanagement committees to source financialand technical assistance from the privatesector, Non-Governmental Organizations andother organisations; (f) to promote optimalland use practices through agroforestry insmallholder farming systems; (g) to upgradethe capacity of forestry institutions in theimplementation of their resource managementresponsibilities and in development of humanresources in forestry; (i)to protect fragile areassuch as hill tops, river banks, water catchmentand to conserve and enhance biodiversity; and(l) to promote bilateral, regional andinternational cooperation in forestaugmentation and conservation.”

3. Cameroon

67. Cameroon is one of the Central African countriesthat has been adversely impacted by the effects ofdesertification and drought. Cameroon signed theDesertification Convention on 14 October 1996,and ratified it on 29 May 1997. The approachadopted by Cameroon in meeting its obligationsunder the Convention and other internationalenvironmental agreements is slightly different fromthat of China and Malawi.

68. In 1996, the government of Cameroon establisheda framework environmental law, Law Number96/12 of August 1996 Relating to EnvironmentalManagement (“Environmental Management Law”),which lays down the general legal framework forenvironmental management in the country and setsout basic provisions for protection of variouscomponents of the environment, such as theatmosphere, coast and marine waters, soils andsub-soils and management of wastes. Theprovisions are to be supplemented by detailedregulations on the various components of theenvironment in the form of enabling decrees.

69. Section IV of the Environmental Management Lawdeals with protection of soils and the sub-soil andresources therein against any form of degradation.Within the Law's provisions for protection of soil,

there are included specific requirements forprotection and fight against desertification. Therelevant provision, Section 36 (2) states that, “Anenabling decree of this law, prepared incollaboration with the Administrative unitsconcerned, shall lay down: the specific conditionsfor the protection and fight against desertification,erosion, loss of arable land and pollution of the soiland its resources by chemicals, pesticides andfertilizers.”

70. Further, Section 38 subjects agricultural, industrial,urban and other activities that are likely to degradethe soil to an authorization system which shallprohibit any activities likely to lead to soildegradation. Where activities are authorized butresult in soil degradation, the EnvironmentalManagement Law also provides for rehabilitation atthe cost of permit holders responsible for thedamage in Section 37(2).

71. In addition, Section 9 of the EnvironmentalManagement Law contains detailed provisions forguiding environmental law principles, includingthe precautionary principle and the principle ofpublic participation, which entitles every citizen ofCameroon to information on activities that candamage the environment. The Law also providesfor a number of environmental protectionmeasures, including environmental impactassessment. Part VI deals with issues of liability andsanctions for non-compliance with statutoryprovisions.

72. Section 10(2) and other provisions of theEnvironmental Management Law provide for theinstitutional framework for its implementation andenforcement by an Inter-Ministerial Committee onthe Environment, a National ConsultativeCommittee on the Environment and SustainableDevelopment, decentralized territorial authoritiesand administrative units, as well as grassrootscommunities and environmental associationswhose functions are to be detailed by an enablingdecree of the Law. Section 11 establishes aNational Environmental and SustainableDevelopment Fund as a financial mechanism forimplementation and enforcement of the Law.

Prof. Simeon Kedogo Imbamba, EnvironmentalConsultant, Nairobi


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Resources

Internet Resources

CANADA COMBATS DESERTIFICATION available at http://www.acdi-cida.gc.ca/desertification-e.htm

COMBATING DESERTIFICATION IN NAMIBIA available at http://www.namibia-desertification.org/

ENVIRONMENTAL PROTECTION LAWS IN CHINA available at http://www.zhb.gov.cn/english/law.php3?offset

FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS available athttp://www.fao.org/desertification/default.asp?lang=en

ISRAEL MINISTRY OF FOREIGN AFFAIRS, COMBATING DESERTIFICATION AND DESERT REHABILITATION available at http://www.israel-mfa.gov.il/mfa/go.asp?MFAH024v0

LAW OF THE PEOPLE'S REPUBLIC OF CHINA ON DESERTIFICATION AND TRANSFORMATION, ENVIRONMENTAL PROTECTION LAWS OF

CHINA available at http://www.zhb.gov.cn/english/law.php3?offset

MARY TIFFEN & MICHAEL MORTIMER, DRYLANDS RESEARCH, "DESERTIFICATION"- INTERNATIONAL CONVENTIONS AND PRIVATE

SOLUTIONS IN SUB-SAHARAN AFRICA IN SUSTAINABLE DEVELOPMENT: PROMOTING PROGRESS OR PERPETUATING POVERTY?, (PROFILE

BOOKS, 2002) available at http://www.sdnetwork.net/pdfs/tiffen_mortimer_chapter14.pdf

MEDITERRANEAN DESERTIFICATION AND LAND USE available at http://www.medalus.demon.co.uk/

NATURAL RESOURCE ASPECTS OF SUSTAINABLE DEVELOPMENT IN MALAWI available athttp://www.un.org/esa/agenda21/natlinfo/countr/malawi/natur.htm

THE FIRST NATIONAL MALAWI REPORT ON THE PREPARATION AND IMPLEMENTATION OF THE UNITED NATIONS CONVENTION TO

COMBAT DESERTIFICATION PROGRAMME available at http://www.unccd.int/cop/reports/africa/national/1999/malawi-eng.pdf

UNITED NATIONS CONVENTION TO COMBAT DESERTIFICATION available at http://www.unccd.int/main.php

UNITED NATIONS DEVELOPMENT PROGRAMME DRYLANDS DEVELOPMENT CENTRE available at http://www.undp.org/drylands/

USGS DESERTIFICATION PAGE available at http://pubs.usgs.gov/gip/deserts/desertification/

Text Materials

C.J. Barrow, LAND DEGRADATION, (Cambridge University Press, 1991).

DEPARTMENT OF DESERT RESEARCH, LANZHOU INSTITUTE OF GLACIOLOGY, CRYOPEDOLOGY AND DESERT RESEARCH, THE

TRANSFORMATION OF DESERTS IN CHINA: A SUMMARY VIEW OF THE PEOPLE'S EXPERIENCE IN CONTROLLING SAND IN UNITED

NATIONS ENVIRONMENT PROGRAMME, (UNEP Reports and Proceedings Series 3, Combating Desertification in China,James C. Walls, Ed., 1982).

DOWN TO EARTH: A SIMPLIFIED GUIDE TO THE CONVENTION TO COMBAT DESERTIFICATION, WHY IT IS NECESSARY AND WHAT IS

IMPORTANT AND DIFFERENT ABOUT IT, (Centre for Our Common Future in Collaboration with INCD, 1995).

Elisabeth Corell, THE NEGOTIABLE DESERT: EXPERT KNOWLEDGE IN THE NEGOTIATIONS OF THE CONVENTION TO COMBAT

DESERTIFICATION, (1999).

M. P. Petrov, DESERTS OF THE WORLD, (Translated from Russian by IPST Staff, 1976).

MANAGING FRAGILE ECOSYSTEMS: COMBATING DESERTIFICATION AND DROUGHT, THE EARTH SUMMIT: THE UNITED NATIONS

Chapter 19 DESERTIFICATION

268

CONFERENCE ON ENVIRONMENT AND DEVELOPMENT (“UNCED”), Stanley P. Johnson & Gunther Handl (Eds.) (1993).

Mostafa Kamal Tolba, DESERTIFICATION IN AFRICAN LAND USE POLICY, (October 1998).

Mostafa K. Tolba, SAVING OUR PLANET, (Chapman & Hall, 1992).

PAGIOLA STEPHEN, THE WORLD BANK, THE GLOBAL ENVIRONMENTAL BENEFITS OF LAND DEGRADATION CONTROL ON

AGRICULTURAL LAND, (1999).

Perez F. Trejo, European Commission EPOCH Programme, ENVIRONMENT AND QUALITY OF LIFE: DESERTIFICATION AND

LAND DEGRADATION IN THE MEDITERRANEAN, (October 1992).

PROTECTING THE ENVIRONMENT FROM LAND DEGRADATION: UNEP’S ACTION IN THE FRAMEWORK OF GLOBAL ENVIRONMENT

FACILITY, (1998).

THE FORESTRY ACT OF MALAWI, UNEP/UNDP JOINT PROJECT ON ENVIRONMENTAL LAW AND INSTRUCTIONS IN AFRICA:COMPENDIUM OF ENVIRONMENTAL LAWS OF AFRICAN COUNTRIES, SECTORAL ENVIRONMENTAL LAWS AND REGULATIONS, (VolumeVI) (1998).

UNESCO/UNEP/UNDP, J.A.Mabbutt & C. Floret, (Eds.), CASE STUDIES ON DESERTIFICATION 52, (1980).

United Nations Environment Programme (Stiles, Daniel, Ed.), SOCIAL ASPECTS OF SUSTAINABLE DRYLAND MANAGEMENT,(John Wiley & Sons, 1995).

UNITED NATIONS ENVIRONMENT PROGRAMME, SUCCESS STORIES IN THE STRUGGLE AGAINST DESERTIFICATION: A HOLISTIC AND

INTEGRATED APPROACH TO ENVIRONMENTAL CONSERVATION AND SUSTAINABLE LIVELIHOODS, (December 2002).

UNITED NATIONS ENVIRONMENT PROGRAMME, UNITED NATIONS CONVENTION TO COMBAT DESERTIFICATION IN THOSE

COUNTRIES EXPERIENCING SERIOUS DROUGHT AND/OR DESERTIFICATION, PARTICULARLY IN AFRICA (1995).


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MOUNTAIN, FOREST, AND POLAR ECOSYSTEMSChapter 20

20. MOUNTAIN, FOREST, AND POLARECOSYSTEMS

I. Introduction

1. Ecosystems require preservation and protectionfrom human interference that might harm andadversely affect their vital functions. This chapterfocuses on three examples that illustrate the uniquedemands that ecosystems place on efforts atprotection and preservation: mountain ecosystems,forest ecosystems and polar region ecosystems.Each of these types of ecosystems iscomprehensively examined in a self-containedpart, virtually as a sub-chapter. Each type ofecosystem displays significant differences in thecomposition of the communities that comprisethem, the differences in the vital functions theyperform, and the importance of these functions tonature and to human beings. In each case, manyor even all of the plant or animal species ororganisms are unique to the relevant environment.These differences notwithstanding, all theseecosystems have in common the geographic andclimatic features that support communities ofplants, animals, and other mutually dependentorganisms. They all perform certain vital functionsthat are dependent upon the community remaininglargely intact.

2. A growing understanding of the unique featuresand protective demands of ecosystems hasprompted the making of ecosystem-oriented lawsat international and national levels. Notably,ecological systems, processes, and regions often donot overlap with political boundaries andprotective efforts have the potential to clash withindividual states’ concerns regarding sovereigntyover their territories or natural resources. Inresponse to these challenges, certain internationalenvironmental law principles and concepts,including the concept of sustainable developmentand the precautionary principle, have developed.Many of the principles and concepts applicable tothe protection and management of ecosystems arediscussed in detail in chapter 3 of this Manual.

3. Alongside the development of internationalenvironmental law principles and concepts,various treaty-based legal regimes for theprotection of ecosystems have emerged. Whilesome treaty regimes incorporating ecosystem-oriented management principles and concepts

have a broad approach to environmental issuesconcerning, for example, protection of the marineenvironment and biodiversity protection, only asmall number of regimes actually aim to governentire ecosystems. The scope of the existing legalregimes depends partly on the urgency of theecological concerns at hand, the perceivedimportance of the threatened ecosystem and theextent to which ecosystem protection andmanagement implicate state sovereignty.

II. Mountain Ecosystems

1. Ecosystem Characteristics and Vulnerabilities

4. Webster’s New Collegiate Dictionary describes amountain as a landmass that projectsconspicuously above its surroundings and is higherthan a hill. Mountains are found on everycontinent and cover 26% of the Earth’s surface.Because of their physical and ecologicalcharacteristics, mountains perform crucialecological functions and provide many benefits tohumans. For example, many mountains originatefrom volcanic activities, which, during formation,lead to an outpouring of lava on the outer surfaceof the mountains. Over time, the lava and rockparticles develop into rich volcanic soils thatsupport the growth of many plants and trees thatdevelop into forests that are home to diversespecies of animals, plants and other organisms.

5. Mountains have also become the water towers ofhumanity. Because air ascends mountains, cools,condenses and falls as rain, mountain areas usuallyreceive more rainfall than low-lying areas. This isone of the reasons many rivers, including trans-boundary ones, originate from mountains andmountain ranges. Many of these rivers playimportant roles in supporting regional economies.For example, the Indus River, which originatesfrom the Himalayan Mountains, supports riceirrigation for more than 130 million people inPakistan alone and flows through India andBangladesh, supporting the world's largestirrigation network. In Central America, the entireeconomic development of the Atacama Desertarea depends on small streams that originate fromthe Andes Mountains. In Europe, the Alps supplywater to major European rivers including theRhine, Rhone, Danube and the Po. In EasternAfrica, the Mara River, which is the only permanentwater source in Northern Tanzania and supportsmillions of diverse species of wildlife in theSerengeti, originates from the Rift Valley mountainranges in Kenya. All the major rivers in the world,

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MOUNTAIN, FOREST, AND POLAR ECOSYSTEMS Chapter 20

from the Rio Grande to the Nile, have theirheadwaters in mountains. As a consequence, morethan half of the world’s population rely onmountain water to grow food, produce electricity,sustain industries and, most importantly, to drink.

6. In addition, because of their topography andaesthetic beauty, mountains are increasinglypopular destinations for tourism, the world'sbiggest industry. In the Alps, there has been asteadily growing two-season tourism since the1950s. Mountains can also be reservoirs of anumber of precious minerals. In the United States’Rocky Mountains, for example, there aresubstantial traces of silver, cadmium, zinc, andother minerals that are in high demand. Mountainsare also home to much of the world’s population,especially in mountainous countries such asKyrgyzstan, Kazakhstan, Tajikistan, and theCarpathian region of Europe, which contains morethan sixteen million people.

7. The pressures on mountain ecosystems aremanifold. They are very fragile because of theirsteep slopes, high altitude and other attributes. Inmany regions, human activities are threatening todestroy them and to seriously undermine theirability to perform ecological functions and providebenefits to humans.

8. Human factors such as population pressure,combined with natural hazards such as climatechange, have pushed poor agricultural practicesever higher up the mountains, especially incountries that are largely mountainous. In manyregions, many health problems in mountainwildlife and in people living downstream haveresulted. Mountain forests have been cut down andthe areas cultivated, prompting cycles ofdeforestation, soil erosion, downstream flooding,water flow changes and pollution of rivers withagricultural chemicals. Availability of minerals onsome mountains has also led to heavy miningactivities, resulting in the pollution of theheadwaters of many rivers, including those thatflow through more than one national boundary.The resulting negative impacts on ecosystems havecreated disputes between countries where miningactivities take place and downstream countries thatexperience adverse consequences. In addition,mountains have been made toxic waste dumpinggrounds in many places. For example, dangerousnuclear wastes have been dumped high up in themountains of Kyrgyzstan. The wastes threaten tospill into rivers that flow into the fertile valleysbelow, much of which are in neighbouringUzbekistan and are home to almost 20% of CentralAsia’s entire population.

9. Tourism is another human activity that isthreatening to destroy mountain ecosystems. Evenmountains in remote corners of the world arebecoming popular destinations for tourists, withmany negative results. Often, large mountainforests are cleared to create room for mountainhotels and other tourist resorts. Not only does thisaffect biological diversity, but also, once built,waste discharges emanate from the hotels to thesources of many rivers that originate from themountains. In addition, tourist activities onmountains and glaciers have weakened thestability of the mountain ecosystems, resulting inavalanches, snow slides, landslides and ice slides.

10. Wars and civil strife in mountainous regions havealso had severe consequences on wildlife andhuman populations living there. The UnitedNations Food and Agriculture Organization reportsthat many of the world’s wars are being fought inmountainous regions. Recent examples includeAfghanistan, Kurdistan and Kashmir, to name but afew from a long list. In these wars, explosivesdestroy mountain landscapes and vegetation thathave been habitats for many unique species ofwildlife, including endangered species.

2. International Environmental Regime relating toMountain Ecosystems

a) Convention on the Protection of the Alps

11. The Alps are the most significant mountain areas inWestern Europe, running at heights between 2,000and 3,000 metres high and stretching across theborders of a number of countries includingSwitzerland, France, Germany, Italy, Austria,Liechtenstein and Slovenia. The Convention onthe Protection of the Alps (“1991 AlpineConvention”) makes the Alps the world’s firstmountain region to be legally protected at theinternational level.

12. The Alpine Convention was adopted on 7November 1991, by Austria, France, Germany,Italy, Liechtenstein, Switzerland, Slovenia and theEuropean Economic Community. The AlpineConvention came into force on 6 March 1995. Asof November 2005, it has nine parties, including allof the initial signatories, plus Slovenia andMonaco.

13. The parties agreed to establish a comprehensivepolicy for the protection and sustainabledevelopment of the Alps in their entirety. The rangeof issues addressed by the 1991 Alpine Conventioninclude: protection of the region’s landscape andits diverse species of animals, plants and other

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organisms, regulation of agriculture in themountain region, mountain tourism, proper landuse planning for the mountain areas, prevention ofpollution of the mountain ecosystems andavoidance of competition over use of themountains along national lines.

14. The 1991 Alpine Convention is a frameworkagreement, which sets out the basic principles andprocedures according to which the regime is to befleshed out, and establishes the institutions throughwhich the parties are to cooperate. Specificobligations are contained in nine issue-specificprotocols that have been adopted since 1994, tocomplement the 1991 Alpine Convention.

15. The 1991 Alpine Convention’s substantiveprovisions set out a general obligation to pursue acomprehensive policy for the protection andpreservation of the Alps. To this end, the partiesagree in article 2(1) to apply the principle ofprevention, the “polluter pays” principle and theprinciple of cooperation at national andinternational levels, after carefully considering theinterests of all the Alpine states, regions and theEuropean Community. For example, parties shouldtake measures to ensure that manufacturingfacilities and other entities that cause pollution ofthe Alpine environment take responsibility forcleanup and for any pollution damage.

16. Additionally, article 2(2) requires parties to takeappropriate measures in eleven areas of concernthat reflect an ecosystem-oriented approach:population and culture, planning for sustainabledevelopment of the region, prevention of airpollution impacting the region, soil conservation,management of Alpine water resources,conservation of nature and the countryside,regulation of farming in the mountain areas,preservation of mountain forests, regulation oftourism and recreation, control of transport throughthe region, consideration of energy-related matters,and waste management. For example, with respectto conservation of nature, article 2(2)(f) of the 1991Alpine Convention obliges parties to takeappropriate measures to protect, conserve, and,where necessary, rehabilitate the naturalenvironment and the countryside. The goal is toallow ecosystems to function, to preserve animaland plants species and their habitats, to maintainnature’s capacity for regeneration and sustainedproductivity and to preserve the variety, uniquenessand beauty of nature and the countryside on apermanent basis.

17. Also, under articles 3 and 4, the 1991 AlpineConvention requires parties to cooperate incarrying out research activities, scientificassessments, and the exchange of legal andtechnical information that would enable them tomeet their obligations.

18. At an institutional level, the 1991 AlpineConvention creates the Alpine Conference, whichmeets once every two years. This plenary body ismade up of representatives of the parties. It servesas a forum for the discussion of the commonconcerns of and cooperation between the parties.It is also responsible for examining theimplementation of the convention and for makingdecisions regarding further development of theAlpine Convention. The regular work of the AlpineConvention is carried out by the StandingCommittee, assisted by “Groups of Experts”, asprovided for in articles 5 through 8.

19. As already noted, the 1991 Alpine Conventionrequires parties to take appropriate measures toaddress a variety of concerns. However, theConvention does not contain detailed obligationsin this respect. The necessary detail for theimplementation of the 1991 Alpine Conventionwas to be achieved through the adoption ofindividual sub-agreements, or “protocols,” asprovided under article 2(3). Between 1994 and2000, parties adopted nine protocols on mountainagriculture, nature protection and landscapeconservation, land use planning and sustainabledevelopment, mountain forests, tourism, soilconservation, energy, transport, and disputesettlement. The Protocol on Land Use Planning andSustainable Development, for example, requiresparties to develop and implement regional plansfor sustainable development. In the context ofregional economic development, such plans are tobe aimed at, among other things, conservation andmanagement of important environmental andcultural areas, and reducing the risk of naturalcalamities. By December 2002, all of the nineprotocols had come into force and parties are in theprocess of developing three more.

b) Framework Convention on the Protection andSustainable Development of the Carpathians

20. The Carpathian Mountains are a range ofmountains straddling the Czech Republic,Hungary, Moldavia, Poland, Romania, Slovakiaand Ukraine. The Framework Convention on theProtection and Sustainable Development of theCarpathians (“2003 Carpathian Convention”) wasadopted on 22 May 2003. It entered into force on4 January 2006.

21. In its Preamble, the 2003 Carpathian Conventionexpressly recognizes the Alpine Convention as itsmodel. Its primary objective is the protection andsustainable development of the CarpathianMountains region with a view to improving thequality of life of the people living there, tostrengthening local economies of the region and itscommunities, and to conserving the naturalresources thereon and the cultural values of themountain people.

22. To meet these objectives, the 2003 CarpathianConvention sets out a number of guiding principlesin article 2, including the precaution andprevention principles, the polluter pays principle,the principle of public participation andstakeholder involvement, transboundarycooperation, ecosystem approach, programaticapproach and integrated planning andmanagement of the land and water resources. The2003 Carpathian Convention obliges parties toapply these principles in taking steps, actions, andmeasures on a number of matters specified inarticles 4 through 13. These include conservationand sustainable use of biological and landscapediversity, landscape planning, sustainable waterresource development, integrated rive basindevelopment, and sustainable agriculture, forestry,tourism, transport, infrastructure, industry andenergy. For example, on industry and energy,parties are required by article 10 “...to promotecleaner production technologies, in order toadequately prevent, respond to and remedyindustrial accidents and their consequences, aswell as to preserve human health and mountainecosystems”.

23. For its implementation, article 14 of the 2003Carpathian Convention establishes a Conference ofthe Parties to be responsible for a number ofmatters, including amendments to the 2003Carpathian Convention and adoption of protocolsthereto. In articles 15 and 16, the Convention alsoestablishes a Secretariat to be responsible forcompilation and submission of reports to partiesand other matters, and subsidiary bodies to providetechnical assistance. Parties shall settle disputesarising from the interpretation or implementation ofthe Carpathian Convention by negotiation and byother means that are in accordance withinternational law as provided by article 20.

c) Non-Legally Binding Instruments

24. Agenda 21 is one of the instruments that, althoughnon-legally binding, has produced practical resultswith respect to protection of mountain ecosystems.It sets a plan of action and measures thatrepresentatives of 180 governments agreed to take

on various areas of environmental conservation.With respect to protection of mountain ecosystems,its Chapter 13 is the most relevant.

25. In Chapter 13 of Agenda 21, UNCED recognisedthat the world’s mountains have significant naturalresources, provide essential ecological goods andservices to humans, and therefore, should bepreserved, restored and sustainably managed.Fresh mountain water conservation, conservationof biological diversity in mountain areas,conservation of mountain forests, and preventionof negative impacts of climate change onmountains and sustainable tourism are some of themountain issues that were identified as requiringconservation actions. The representatives ofgovernments agreed to raise awareness ofmountain people on these issues and to supporttheir efforts to prevent, reduce and reverse the trendof degradation of mountain ecosystems. They alsoagreed to provide mountain people with alternativelivelihoods to avoid over-exploitation of mountainresources and to undertake other programmes toaddress mountain issues.

26. On the basis of Agenda 21, a number of actionshave been taken, including creation of agreementsthat specifically address mountain ecosystemissues in specific regions. For example, parties tothe Framework Convention on the Protection andSustainable Development of the Carpathiansexpressly stated in the Preamble to the Conventionthat they recognized the importance of and wereacting pursuant to mountain issues highlighted inChapter 13 of Agenda 21.

27. Agenda 21 has also stirred a number of non-governmental organization initiatives forprotection, preservation and sustainabledevelopment of mountain areas, including:

• Charter for the Protection of the Pyrenees of1995, whose objective, inter alia, is topreserve the mountain range’s ecologicalvalues;

• African Mountains and HighlandsDeclaration of 1997, which highlights majorproblems affecting Africa’s mountainecosystems and provides policyrecommendations to address them;

• Kathmandu Declaration of 1997, which callsfor, inter alia, effective protection of themountain environment and respect for theculture and dignity of mountain peoples; and

• Draft World Charter of June 2000, which setsout conditions that are crucial to meeting theneeds of mountain populations whilepreserving their environment.

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28. There are also many examples of non-legallybinding instruments that were developed throughgovernmental fora pursuant to Chapter 13 ofAgenda 21, with much input by Non-Governmental Organizations. These include theCusco Declaration on Sustainable Development ofMountain Ecosystems, which was drawn up byrepresentatives of eighteen countries from variouscontinents gathered in Cusco, Peru, in 2001. Intheir deliberations, parties identified sustainablemountain development as one of the mountainissues requiring careful consideration, andrecognized that social and economic measures arenecessary in addressing the issues.

29. Since the adoption of the Alpine Convention in1991 and the inclusion of Chapter 13 on mountainecosystems in Agenda 21, binding and non-binding instruments focusing on the protection andsustainable development of mountain areas haveproliferated. This trend is indicative of a growingrecognition that the delicate balance betweenecological and developmental needs requirescomprehensive, ecosystem-wide approaches.Although ratification and implementation remainworks in progress, the Alpine Convention is themost advanced legal regime for mountainprotection so far. It is a landmark agreement andprovides a solid basis for transboundarycollaboration. Recent developments regardingother mountain areas suggest that this frameworkconvention may be a suitable model for thegradual evolution of legal regimes, and for thetailoring of regimes to the specific concerns of aparticular mountain region. Work is underway todevelop comparable agreements for the AltaiMountain range involving Kazakhstan, Mongolia,and Russia, and the Caucasus Mountain rangeinvolving Armenia, Azerbaijan, Georgia andRussia.

3. National and Local Initiatives relating to MountainEcosystems

30. Legislative protection of mountain ecosystems is anarea that is still developing and only a fewcountries have passed laws, rules, standards andpolicies that specifically deal with mountain issues.While relevant legislation exists in variouscountries, this section of this chapter is limited tolaws related to the Alpine Convention in order toillustrate how that particular agreement is beingimplemented.

31. Although France, Italy, Austria and other parties tothe 1991 Alpine Convention have laws or policiesthat address issues related to mountain ecosystems,

Switzerland is particularly illustrative, since most ofits territory is mountains. For Switzerland, nationalimplementation of the 1991 Alpine Conventionand the protocols did not require any additionallegislative measures because it already had inexistence a number of laws at different levels ofgovernment addressing mountain agriculture,social and sustainable development of mountainareas, mountain tourism, infrastructure and otherissues covered by the 1991 Alpine Convention.When Switzerland became a party to the 1991Alpine Convention, it gave its commitment toimprove its existing mountain legislation wherenecessary. Switzerland does not have a single,unitary piece of legislation that covers its mountainecosystems. Instead, it has a number of lawscovering various issues concerning protection andsustainable development of mountain areas, whichtend to link the protection of mountain ecosystemswith the right of the people to adequate economicdevelopment. Some of these laws include:

• The Federal Law on Assistance regardingInvestments in Mountain Areas. This is themain sectoral legislation, also called SwissMountain Law of 1974. It was revisedsubstantially in 1998, to provide for some ofthe measures required by the AlpineConvention, especially pollution control,protection of the mountain landscape andsustainable development of the mountainareas. On the sustainable development aspectof the law, for example, article 1 provides forincentives for the development of mountains.Among other things, the law provides forsubsidies from the government fordevelopment projects in the mountaincommunities to facilitate environmentalprotection, including establishment of refusedisposal facilities. The law also providessubsidies to support trades that would providealternative livelihoods to the people andprevent over-utilization of the fragilemountain lands.

• The Federal Mountain Region HousingImprovement Act 844 of 1970. This lawcontains a number of provisions that relate tomountain protection. For example, article 4requires any work undertaken for homeimprovement in mountain regions to be donein accordance with the requirements ofphysical planning, protection of nature andlandscape, and environmental conservation.The provisions strengthen the purpose of theinfrastructure loans under the Swiss MountainLaw to promote the sustainable developmentof mountain regions.

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• The Federal Agriculture Act and the 1998Ordinance on Direct Payment to Agriculture.In furtherance of the Alpine Protocol onMountain Farming, these laws containprovisions for financial aid to mountaincommunities for sustainable promotion ofagriculture in the mountain areas.

32. The various Swiss mountain laws are implementedby bodies responsible for enforcing and applyingthe various laws, such as the Swiss Agency for theEnvironment, Forests and Landscape. As a federalstate, Switzerland’s responsibility for naturalresource management and protection of theenvironment is shared between different levels ofgovernment: the Confederation, the cantons and,to a small extent, municipal authorities.

III. Forest Ecosystems


33. Forest ecosystems perform important ecologicaland economic functions. Internationally, there areseveral different definitions of a forest. Somedefinitions depend on the actual vegetation on theground. For example, the European Union hasdefined forestland as having at least 20% canopyclosure and a minimum area of 0.5 hectares. ForMediterranean regions, the 10% canopy cover isthe adopted definition. Similarly, the UnitedNations Food and Agriculture Organization, whichundertakes considerable work on forest protection,defines forests as land with 10% tree cover. Otherdefinitions depend on legal designation of areas asforests, or legal classification of land use as forest,agricultural or urban.

34. Regardless of the definition, it is important to bearin mind that forests are more than simply “areaswith trees.” Trees are but one component of a forestecosystem, which comprises various species ofplants, animals, mammals, and other organismsthat interact amongst themselves and with theirphysical environment.

35. Forests perform vital ecological services andprovide ecological goods that provide manybenefits to humans. Scientific research and directobservation in many areas of the world show thatforests make water available because undisturbedforests tend to maintain high rates of infiltration thatensure ground water recharge. Therefore, removalof forests, especially in tropical areas, results in areduction of dry season flows of rivers, notablythose originating in forest catchment areas.Scientific studies and research also show that incertain circumstances, for example where forests

cover extensive areas, like in the Amazon basin,forest increase precipitation and their removal mayresult in less rainfall. Removing forests alsodegrades water quality because forest vegetationcan no longer reduce and eliminate water-bornepollutants that would be carried in surface run off,or immobilize or transform pollutants throughchemical and biological processes.

36. Forests also prevent soil erosion, especially onsteep slopes. This function is particularly importantbecause many forests are found in mountainousareas that receive heavy rainfall that could easilycause soil erosion if not protected by vegetation. Ifthe presence of forest vegetation helps preventerosion, it follows that removal of forests promoteserosion, with attendant high run off, downstreamsedimentation and siltation, degradation of waterquality, and increased flooding, especially of low-lying areas.

37. The World Commission on Forests and SustainableDevelopment has articulated the importance offorest ecosystems as follows:

The whole forest issue is about people, sometimesillustrated in a direct and brutal way. When some10,000 people drowned in mud and water in CentralAmerica in November 1998 the blame was onHurricane “Mitch,” the worst of its kind in a long time.This was only half of the truth about the tragic event.The other half is about land mismanagement in theregion. Big cash crop farms, often multinational, havegradually taken over the fertile plains and driven poorfamilies to cultivate and collect firewood frommarginal lands and forested mountain hillsides. Asexpected, these lands have become eroded, causingunprotected soil to wash away by forceful rains,forming mudslides which killed everything in theirpath.

38. Moreover, forests help to maintain climaticbalances, and to avert or slow climate change bystoring carbon in their living matter and soils andby absorbing atmospheric carbon dioxide.Conversely, forests are a source of destructivegreenhouse gases when burned and destroyed.Burning and destruction of forests lead to emissionof carbon and carbon dioxide into the atmospherewhere the gases contribute significantly to globalwarming by trapping heat from incoming solarenergy in the atmosphere. The relationshipbetween forest cover and climate change is one ofthe global dimensions of forest ecosystemprotection.

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39. In addition, forests are home to millions ofindigenous people in many countries in the worldand are habitat to numerous diverse species ofanimals, plants and other organisms. Forestscontain at least two thirds of the Earth’s terrestrialspecies and 70% of the world’s plant and animalspecies. The biotic diversity of forests serves as afoundation for selection and breeding of plants andanimals. The genetic bank is also drawn upon tostrengthen the yield and resistance of food cropsand for materials of medicinal and industrial value.Forest dwellers are dependent on forests for theireconomic, social, cultural and spiritual well-being.

40. These vital functions of forests and the delicateecological balance that forests maintain are beinggreatly upset and undermined by a variety ofhuman activities. Increasing human populationshave resulted in accelerated deforestation in manycountries as forest lands are cultivated or cleared togrow food crops or raise cattle, or cut simply forfuel. For example, an estimated two billion peoplein developing countries still rely on wood as theirsource of fuel. The quest for development has alsoresulted in massive logging for timber for domesticconsumption and export and turning forest landsinto cash crop farms. There is also the problem ofillegal logging in national and other publiclyowned forests, which not only destroys forestecosystems, but also distorts timber markets, acts asa disincentive to sustainable forest management,and robs forest owners and governments ofmassive revenues due to them from forestryactivities.

41. Lack of, or negative, governmental forestry policieshave had a share in the reduction of forest cover. Inmany countries, regular and uncontrolled forestclearing are authorized by governmentalauthorities, usually without any consideration ofadverse impacts or consultation with affectedcommunities.

42. Ironically, although it is usually assumed that thegreatest value can be extracted from a forest bymaximizing timber and pulp products or byconverting it to agriculture, the ecologicalfunctions of forests that are generally regarded asfree or simply not noticed are highly valuable. Forexample, when alternative management strategiesfor the mangrove forests of Bintui Bay in Indonesiawere compared, taking into account the value offish, locally used products, and erosion control, itwas found that it would be most profitable to keepthe forests to yield US $4800 per hectare, insteadof cutting them down for timber, which would onlyyield US $3600 dollars per hectare.

2. International Environmental Regime relating toForest Ecosystems

43. To date, there is no comprehensive legally bindinginternational agreement dealing specifically withforests and the environmental, social, andeconomic aspects of the management andpreservation of forest ecosystems.

44. Some critics of an all-encompassing forestconvention approach point to the great diversity ofthe world’s forests and the challenge of arriving atan agreement that would be a meaningfulcontribution to global forest protection.

45. However, the fragmented nature of forest-relatedprovisions under existing international agreementsis one of the key reasons proponents of a legallybinding forest agreement argue for acomprehensive, ecosystem-oriented approach tothe protection and sustainable development offorests.

a) The Ramsar Convention on Wetlands ofInternational Importance, especially as

Waterfowls Habitat

46. The Ramsar Convention on Wetlands ofInternational Importance especially as WaterfowlHabitat (“1971 Ramsar Convention”) was adoptedon 2 February 1971, and entered into force on 21December 1975. As of November 2005, the 1971Ramsar Convention has 147 parties.

47. The 1971 Ramsar Convention applies to forestecosystems to the extent that they fall within theConvention’s definition of “wetland” under article1. Article 2 of the Convention requires each partyto designate suitable wetlands within its territory forinclusion in a “List of Wetlands of InternationalImportance” which is maintained by a bureauestablished under article 8 of the Convention.Selection of wetlands of international importance isbased on set criteria including their internationalsignificance in terms of ecology, botany, zoology,limnology or hydrology. For example, Brazil,which became a party to the Ramsar Conventionon 24 September 1993, has included Varzea Forestin the Mamiraua area as a wetland of internationalimportance under article 2 of the Convention.

48. Once designated as wetlands of internationalimportance, forests are to be conserved in themanner stipulated by articles 3, 4, 5 and otherprovisions of the 1971 Ramsar Convention. Amongother conservation actions, article 4 obligatesparties to establish designated forests as naturereserves to be protected and preserved.

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b) The Convention concerning the Protectionof the World Cultural and Natural Heritage

49. The Convention concerning the Protection of theWorld Cultural and Natural Heritage (“1972 WorldHeritage Convention”) was adopted in November1972, entered into force on 17 December 1975,and has 180 parties as of November 2005).

50. The 1972 World Heritage Convention requiresparties to protect natural and cultural heritage of“outstanding universal value.” Under articles 1and 2, natural and cultural heritage include naturalsites and areas which are of outstanding universalvalue from the point of view of science,conservation and natural beauty, regardless ofwhether such areas have been delineated by aparty as forest reserves, nature reserves, or someother conservation area. Article 3 requires eachparty to delineate such areas within their territoriesas “World Heritage Sites” to be included in a“World Heritage List”. To date, the World HeritageList includes 812 properties, of which forty-eightare tropical forests covering more that 32.3 millionhectares. Once an area is designated as a WorldHeritage Site, article 4 of the 1972 World HeritageConvention requires each party to protect,conserve, and transmit the forests to futuregenerations. To meet these requirements, article5(d), inter alia, of the agreement requires parties totake appropriate legal, scientific, technical,administrative, and financial measures.

c) The Convention on International Trade inEndangered Species of Wild Flora and Fauna

51. The Convention on International Trade inEndangered Species of Wild Flora and Fauna(“1973 CITES”) was adopted in 1973, and protectsa number of timber species and plants throughregulation. 1973 CITES is discussed in more detailin Chapter 14 of this Manual.

d) The Rio Conference Instruments

52. At the 1992 Rio Conference, forest issues movedcloser to the centre of international attention. Eachof the three conventions discussed at Rio addressesimportant aspects of global forest conservation: (i)the 1992 United Nations Framework Conventionon Climate Change and its Kyoto Protocol (thelatter one adopted in 1997), (ii) the 1992Convention on Biological Diversity, and (iii) the1994 United Nations Convention to combatDesertification in Countries experiencing SeriousDrought and/or Desertification, particularly inAfrica, whose issues were raised in Rio but was

concluded after the Rio Conference. TheseConventions are addressed more fully in chapters10, 15, and 19. The Forest Principles are coveredin section f) below.

53. The first multi-party convention is the UnitedNations Framework Convention on ClimateChange (“UNFCCC”), which entered into force inMarch 1994, and its Kyoto Protocol, which enteredinto force on 16 February 2005 and has as ofNovember 2005, 189 parties. An overarchingobjective of UNFCCC is the reduction ofgreenhouse gas concentrations in the atmosphere.Within a specified time frame, the levels ofgreenhouse gases will be reduced so they do notdangerously interfere with the international climatesystem, while enabling economic development ofnations to proceed in a sustainable manner.

54. To the extent that forests constitute sinks forgreenhouse gas emission, their preservation andenhancement is touched upon by the globalclimate change regime in UNFCCC. Article 4.1(d)calls upon parties to promote sustainablemanagement and cooperate in the conservationand enhancement of greenhouse gas sinks andreservoirs, including forests. This focus on forestsas carbon sinks and reservoirs, as opposed toecosystems, is pursued in the 1997 Kyoto Protocolto UNFCCC. The 1997 Kyoto Protocol sets outbinding targets for reducing emission ofgreenhouse gases and a range of methods formeeting these targets. One of these methods,provided for by article 2.1(a) (ii) is the protectionand conservation of forests. This option is furtheroutlined in article 3 of the 1997 Kyoto Protocol,which enshrines parties’ emission reduction andlimitation commitments. Article 3.3 highlights thatparties performances will be measured against thenet changes in greenhouse gas emissions, be theyfrom actual changes in emissions or changes inabsorption by “carbon sinks” resulting, inter alia,from afforestation, reforestation or deforestation.Under the 1997 Kyoto Protocol, measures such asafforestation and reforestation, which increaseliving plant matter that absorb carbon dioxide andother green house gases, can be used by developedcountries to offset their green house gas emissions.On the other hand, changes in land use activitiessuch as deforestation that deplete carbon sinks willbe subtracted from the amount of permittedemissions. However, methodologies for achievingand measuring changes in a country’s carbon sinkscontinue to be a sensitive topic.

55. In contrast to UNFCCC, the second multi-partyconvention, the Convention on Biological

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Diversity focuses on a significant aspect ofecosystem protection: the conservation ofbiological diversity. The Biodiversity Conventionhas three goals: (i) conservation of biologicaldiversity, (ii) sustainable use of components ofbiological diversity, and (iii) the fair and equitablesharing of benefits arising from the use of geneticresources. For example, article 8 of the BiodiversityConvention requires parties to take appropriatemeasures for in situ conservation of biologicaldiversity, which applies to natural settings of forestecosystems. Since its adoption, the scope of theBiodiversity Convention has expanded tospecifically include forest ecosystems.

56. In 1995, the COP to the Biodiversity Conventionadopted a statement in which they stressed thatforests have a crucial role to play in maintainingglobal biological diversity. This led to thedevelopment of a work programme for forestbiological diversity in 1996, which focuses on thedevelopment of technologies and researchnecessary for the conservation and sustainable useof all types of forests. Further, in 1998, the COPdecided to consider forest protection andconservation as one of the priority themes for itsfuture activities. It established a technical expertgroup on forest biological diversity with mandateto review available information on status, trends,and threats to forest biological diversity and tosuggest action to address them. The group has thepotential to become an important forum fordeveloping more specific forest conservation andprotection rules under the BiodiversityConvention.

57. In addition, a Subsidiary Body on Scientific,Technical, and Technological Advice supports thework of the COP to the Biodiversity Convention.This panel works on a variety of issues concerningconservation of biological diversity, includingimpacts of forest fires on forests and harvesting ofnon-timber forest resources. The GlobalEnvironment Facility also strengthens measurestaken under the Biodiversity Convention byproviding funding for the agreement’s forestbiological diversity conservation projects. In 2002,the COP adopted Decision VI/22 that set out aprogramme of work for forest biological diversity.

58. The third convention adopted in the aftermath ofRio, the United Nations Convention to combatDesertification in those Countries experiencingSerious Drought and/or Desertification, particularlyin Africa (“Desertification Convention”), alsoaddresses forest issues. In pursuit of its objectivesto combat desertification, to mitigate effects ofdrought, and to contribute to sustainable

development, the regime must considerdeforestation, as it is one of the significant factorscontributing to desertification. Specifically, article10 of the Desertification Convention requiresparties to prepare and implement national actionprogrammes identifying factors contributing todesertification and indicating practical measuresthat they intend to take to combat desertificationand mitigate the effects of drought. Many of thenational action programmes that have beenprepared and adopted include measures to preventand mitigate the effects of deforestation.

e) The International Tropical Timber Agreement

59. The International Tropical Timber Agreement(“1994 ITTA”) was originally adopted in 1983,renegotiated in 1994 and entered into force onJanuary 1, 1997. As of November 2005, it has 60parties, including countries that produce and thosethat consume timber.

60. In the International Timber Agreement, partiesrecognize the need for effective conservation anddevelopment of tropical timber forests with a viewto ensuring their optimum utilization whilemaintaining the ecological balance of the regionsconcerned and of the biosphere. 1994 ITTAprovides an effective framework, which enables:

• Cooperation and consultation betweentropical timber producing and consumingmembers with regard to all relevant aspects ofthe tropical timber economy;

• Promotion of research and development witha view to improving forest management andwood utilization; and

• Encouragement of members to support anddevelop industrial tropical timberreforestation and forest managementactivities.

61. To meet those objectives, articles 1 and 3 of 1994ITTA establish an International TimberOrganization to adopt necessary rules andregulations, to utilize the services and expertise ofexisting intergovernmental, governmental, or non-governmental organizations, and to exercise suchpowers and perform such functions as necessary.The ITTA is currently being renegotiated.

62. Since its creation, the International TimberOrganization has developed sustainable forestmanagement indicators for parties to theAgreement, served as a forum for consultation ontropical forest matters; undertaken a number offorest conservation activities, and assisted members

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to meet their year-2000 objective. The objectivewas that, by 2000, all tropical timber productstraded internationally by member states wouldoriginate from sustainably managed forests.

f) The Rio Forest Principles

63. Because forest issues proved to be so sensitive thatnegotiations at the Rio Conference fell short of alegally-binding instrument on forests, negotiatorsinstead reached consensus on a number of forestissues that they committed themselves to addressand on actions that they would take to conserveand sustainably manage forests. These were set outas the Non-Legally Binding Authoritative Statementof Principles for a Global Consensus on theManagement, Conservation and SustainableDevelopment of all types of Forests (“1992 RioForest Principles”). The 1992 Rio Forest Principlesreflect the negotiators’ efforts to balance a widerange of competing concerns. Much of thebalancing fell within the broad theme of“environment development” tensions, along withthe accommodation of the needs and aspirations offorest-dwelling populations.

64. The 1992 Rio Forest Principles affirmed states’sovereignty to exploit their own natural resourcespursuant to their own environmental policies. Theprinciples also capture states’ responsibilities toensure that activities within their jurisdiction orcontrol do not cause damage to the environment ofother states or areas beyond their nationaljurisdictions. With respect to forests, this means, forexample, that governments must ensure thatdeforestation does not cause erosion or flooding inother states. However, as environmental concernsregarding the decline of forest ecosystems often arecumulative or global in nature, it will tend to bedifficult to attribute adverse effects to individualstates. For that reason, the 1992 Rio ForestPrinciples place certain, limited constraints onparties’ forest management and exploitationactivities.

65. Further, the 1992 Rio Forest Principles call uponstates to sustainably manage their forests, forestresources and forest lands to meet the needs ofpeople that are directly dependent on timber andnon-timber products, as well as forest ecosystemneeds. Governments committed to provide citizenswith accurate and reliable information aboutforests and forest ecosystems and to promoteparticipation by local communities, non-governmental organizations, forest dwellers,industries, and other interested persons in decision-making on matters concerning forests and onefforts to conserve, preserve and sustainably

manage forests. For example, before governmentsmake decisions to construct roads and damsthrough forests or to convert forest lands tofarmlands and settlement areas, they shall holdpublic hearings and dialogue with and collectviews from all interested parties. In addition, statescommitted to take specific steps and actions tomaintain the ecological balances of forests.Among other actions, they agreed to undertakeafforestation and reforestation and create nationalregimes to ensure sustainable management,development and conservation of forests.

66. Chapter 11 of Agenda 21 flanks the Rio ForestPrinciples by providing a comprehensive actionplan for regional and global efforts to find asustainable balance between the ecological andeconomic functions of forests. The Commission onSustainable Development (“CSD") was establishedto facilitate the implementation of thesecommitments made at the Rio Conference. TheCSD then established the Open-Ended Ad HocIntergovernmental Panel on Forests (“IPF”), whichis comprised of CSD member-governmentrepresentatives.

67. In June 1997, the IPF submitted its final report tothe CSD, which adopted it, and forwarded a set ofrecommendations to the UN General AssemblySpecial Session (“UNGASS” or “Rio Plus Five”).The UNGASS decided to continue theintergovernmental policy dialogue on forest issuesthrough the establishment of an ad hoc open-ended Intergovernmental Forum on Forests (“IFF”),which operates under the aegis of the CSD. In2000, the IFF was replaced by the United NationsForum on Forests (“UNFF”), whose workprogramme encompasses a broad range of issuesrelating to sustainable development andconservation of forests, including ongoingexploration of suitable international arrangementsand mechanisms. Thus, though the question of alegally binding forest agreement remains alive, ithas not come any closer to a resolution. In the fivesessions the UNFF has held (most recently June2005), it was not possible for states to achieveagreement if negotiations on a legally-bindinginstrument on forests should start.

68. Leaving aside the issue of a legally binding forestagreement, it is important to note that the RioConference did serve to catalyze international,regional, and national action for sustainablemanagement of forests and set the stage forcontinued work on appropriate solutions to threatsto forests. It at once led to a global acceptance ofthe pivotal role that sustainable management offorests plays and underscored that the concept of

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sustainable development of forests lacked cleardefinition. As a result, a number of internationalprocesses and other actions have been initiated inwhich countries and other interested parties havedefined criteria and corresponding indicators toevaluate, monitor, and certify the sustainability offorest management activities. Of these internationalprocesses, the Montreal Process and the Pan-European Process on Protection of Forests providegood examples.

69. In September 1993, the Conference on Securityand Cooperation in Europe sponsored aninternational seminar in Montreal on sustainabledevelopment of forests (“Montreal Process”).During the Montreal Process, the attendinggovernments, including Australia, Canada, Chile,Japan and Mexico, developed seven internationalcriteria and indicators for the sustainablemanagement of forests. These criteria are essentialcomponents of the conservation and sustainablemanagement of forests in temperate regions andinclude, inter alia, conservation of biologicaldiversity, maintenance of forest contribution to theglobal carbon cycle, and maintenance of thehealth of forest ecosystems, and vitality andmaintenance of productive capacity of forestecosystems.

70. The Montreal Process requires that any party’smanagement of its forest resources must includeefforts to conserve the biological diversity of theforest ecosystem. The Montreal Process establisheda list of sixty-seven “indicators,” including theextent to which a party’s national legal frameworksupports the conservation and sustainablemanagement of forests. Public participation inpolicy- and decision-making is an important“indicator.”

71. In 1995, the Montreal Process was followed theSantiago Declaration, a statement of politicalcommitment to sustainable forestry. Through theSantiago Declaration, parties agreed to be guidedby internationally developed criteria and indicatorsin their national efforts to sustainably manageforests. Since endorsing the Santiago Declaration,countries participating in the Montreal Processhave taken steps to apply the agreed criteria andindicators. A Working Group was created to clarifyany issues that might arise in the process ofimplementation and to facilitate national efforts.One of the group’s activities is to undertake aninitial survey to determine availability of data forindicators in each country and the capacity ofcountries to report on indicators. Interim surveyresults suggest that most countries have data forand can report on 50% or more of the sixty-sevenindicators of the Montreal Process.

72. The Montreal Process also developed a set of Pan-European Criteria and Indicators for SustainableForest Management (“Pan-European Process”),which is a European policy framework forsustainable forestry for use at the national level.The Pan-European Process has significantlyenhanced European countries’ management oftheir forests. The Pan European Process consists ofsix criteria, twenty-seven quantitative indicators,and 101 descriptive indicators. Components of thecriteria requiring care include general conditions offorest biodiversity, rare and vulnerable ecosystems,and threatened forest species. For example,Criterion 4 requires the maintenance,conservation, and appropriate enhancement ofbiological diversity in forest ecosystems. The Pan-European Process also allows for forestcertification, through which on-the-ground forestryoperations by governments and other forest ownerscan be assessed against the predetermined set ofstandards.

73. These examples of non-legally binding instrumentson sustainable forestry demonstrate that there is agrowing international web of activities on forestconservation and management. These are to bewelcomed as they help build consensus on how toaddress the international aspects of forest issues.These instruments represent efforts to slowdeforestation, to provide for sustainable forestmanagement, to preserve remaining forests, toincrease forest cover, to specify tenure and land userights and liabilities, and to allow activeinvolvement of people at local and national levelsin decision-making processes. However, they alsoillustrate the need for some oversight, to avoidoverlapping and/or contradictory initiatives.

3. National Initiatives relating to Forest Ecosystems

74. This discussion highlights efforts by the UnitedStates and Japan to implement internationalregimes because, given the non-binding nature aninternational forest instrument to date, it is hard totrack domestic “implementing” efforts.

a) United States

75. The United States has endorsed Agenda 21 and, indoing so, committed itself also to implementing the1992 Rio Forest Principles. The United States wasexpected to create, maintain and enforce nationallaws that captured principles of sustainableforestry, including laws that:

• Incorporate principles and methods forensuring sustainable forestry management;

• Enhance protection and sustainable

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management of all forests; • Combat deforestation; • Provide citizens with accurate and reliable

information about forests and forestecosystems; and,

• Promote participation of all stakeholders insustainable forest management.

76. The United States had implemented forestry lawslong before it committed itself to the 1992 RioForest Principles. Despite its early legislativeinitiatives, the United States has long-struggledwith balancing competing concerns between theeconomic exploitation of its forest resources andthe environmental conservation of theirecosystems. In 1905, for example, the U.S. ForestService was created to manage 156 designatedforests. The wide discretionary powers granted tothe U.S. Forest Service and ambiguity in thestatutory provisions created conflicts betweenincreased timber production to meet increasinghousing demands and conservationists’ desire toprotect forest resources. This prompted theenactment of the Multiple-Use Sustainable YieldAct of 1960 (“Multiple-Use Act”), which calledupon the U.S. Forest Service to apply a multiple-use approach to the management of forests. Thismultiple-use approach was defined as utilization inthe combination that will best meet the needs ofthe American people.

77. Despite positive efforts taken under the Multiple-Use Act, the U.S. Forest Service did not de-emphasize the importance of timber production.This created further conflicts over unsustainabletimber practices within the United States’ nationalforests. As a result, the U.S. Congress createdadditional forestry laws, including the Forest andRangeland Renewable Resources Planning Act of1974 and the National Forest Management Act of1994.

78. Although these laws contained substantive andprocedural provisions that covered a range offorestry issues, the United States’ forestmanagement activities focused more on harvestingforest products than on programmes sustaininghealthy forest ecosystems. Therefore, by the timethe Earth Summit was held at Rio, the United Stateshad yet to fully incorporate an ecosystem approachto the management of its forests.

79. Subsequently, the U.S. Forest Service participatedin a conference attended by ecologists, foresters,economists, and sociologists in its effort to developthe idea of an ecosystem approach to forestmanagement. The U.S. Forest Service and other

participants documented their commitments in“Defining Sustainable Forestry.” In the document,the U.S. Forest Service announced that theprinciples adopted at the conference, including thecommitment to environmentally-sensitiveproduction of wood and other natural resources,were consistent in spirit with the principles fromthe United Nations Conference on Environmentand Development. This is an acknowledgementby the U.S. Forest Service of its partial fulfillment ofthe commitments the United States made on forestsat Rio.

80. To further the ecosystem management approach toforestry, the U.S. Forest Service published proposedrules to amend its forest planning regulations inApril 1995. The proposed rules streamlined theforest planning system and revised certain sectionsto incorporate principles of ecosystemmanagement. Such principles include thesignificance of landscapes and the preservation ofbiological diversity to recover and conserveendangered and threatened species. The ruleswere adopted by the U.S. Congress on 1November 2000.

b) Japan

81. As part of its implementation of the Rio ForestPrinciples and other forest initiatives, Japanformulated the Basic Plan for Administration andManagement of National Forests in 1998 (“BasicPlan”). Among other things, the Basic Plan isintended to ensure that the public benefits fromforests and introduces three new types ofclassification for national forests, based on thepurpose of their management: (i) Forests for Waterand Land Conservation, (ii) Forests for Humans andNature, and (iii) Forests for Recycling Use ofResources. The first two categories of forests are forpublic benefit. The last category is for ecologicalpurposes, including functions as wildlife habitat.Japan’s forestry management efforts have resultedin the expansion of its Forests for Water and LandConservation and Forests for Humans and Natureto include 80% of the country’s national forestsunder its protection. Such an approach satisfies theRio Forest Principles, as well as the requirements ofthe Biodiversity Convention. Japan’s improvedmanagement system for forests has alsosubstantially expanded the acreage of land underforest cover in the country.

82. As part of its Basic Plan, Japan conducted acomprehensive review of its forest and forestrypolicy, which resulted in a revision of its ForestryBasic Law in 2001. The revision resulted in the

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enactment of the Basic Law on Forest and Forestryin June 2001, which incorporates the Rio ForestPrinciples and principles of sustainable forestrymanagement as emphasised in Agenda 21.

83. The Basic Plan complements other Japaneselegislation that provide for forest pest control andother various forestry issues, including the ForestPests and Disease Control, Law No. 53 of 1950, theLaw concerning Management of National Forest,No. 246 of 1951, the Forest Consolidation Law No.84 of 1954, and the Emergency Measures Law forSoil and Water Conservation Law No. 21 of 1960.

84. Article 2 of the Basic Plan recognizes themultifunctional roles of forests, includingconservation of water resources and prevention ofglobal warming. Article 3(1) and (2) provides forencouragement of a better public understanding offorests and forestry and for public involvement inforest management decisions and expands theroles of municipalities. Article 11 provides for thegovernment's responsibility to establish andimplement a Basic Plan for forest management. Itstipulates that targets for the fulfillment ofmultifunctional roles of forests and for the supplyand use of forest products shall be established.These targets will guide forest management andconservation, the operation of forestry and woodindustries, and forest products consumption. TheBasic Plan shall also identify issues that forestowners and other relevant parties should address.

85. For implementation, Articles 28 and 29 of theBasic Plan establish a Forestry Policy Councilwithin the Ministry of Agriculture, Forestry andFisheries to undertake the various measuresrelating to forests and forestry. Further, pursuant toarticle 18, Japan has undertaken a number ofinternational initiatives for sustainable forestrymanagement through official developmentassistance to developing countries to combatdeforestation and forest degradation, promotesustainable forest management in beneficiarycountries, prevent forest fires, and promote socialforestry, among other things. As of April 2002, thegovernment of Japan was implementing twenty-two such activities.

IV. Polar Ecosystems


86. The Arctic and Antarctic are collectively referred toas the world’s Polar Regions. The Arcticencompasses a total area of approximately 14,056

million square kilometres and is located betweenthe North Pole and latitude 60 degrees north. Itincludes the Arctic Ocean, northern Alaska,Greenland, the Barents Sea, the Beaufort Sea,Hudson Bay and the tributaries of some rivers andwater bodies originating in adjacent areas.Portions of the region fall within the territorialjurisdictions of eight countries: Canada, Norway,Sweden, Finland, Denmark, Russia, Iceland andthe United States.

87. The Antarctic is located around the globe’s SouthPole, south of latitude 60 degrees south. Itcomprises an ice-covered land mass surrounded bya body of water known as the Southern Ocean. Itis the world’s fifth largest continent and covers anarea of roughly fourteen million square kilometres.The body of water surrounding Antarctica forms anatural boundary between the region and the restof the world.

88. The Arctic and Antarctic share climatic andecological characteristics that are peculiar to thePolar Regions. The most distinctive features of thePolar Regions are extremely low temperaturesaveraging minus-30 degrees Celsius in the winterin the Arctic, and even colder in Antarctica. Largeportions of both Polar Regions are also coveredwith permanent, thick ice and snow, even in thesummer. In Antarctica, vast permanent ice coveraverages 200 metres thick; unlike the Arctic, snowand ice have continued to accumulate in theAntarctic over the years, making it stand at a highelevation. In the Arctic, only about 10% of theArctic Ocean is ice-free, even in the summermonths. The Polar Regions also experience largeseasonal variation in the amount of sunlight andsolar radiation that they receive. In the long winter,they receive very little sunlight and are mostly dark,but in the summer, they receive twenty-four hoursof continuous sunlight. The climatic conditions inthe Polar Regions are compounded by winds thatcan blow at up to 100 kilometres per hour.

89. The Regions' extreme climatic conditions performimportant ecological functions. For example, theextensive ice and snow cover of the oceans andland in the Polar Regions helps cool the Earth byreflecting energy from the sun back into space.Also, the cold, dense, salt water that is created asice forms tends to sink to lower reaches of theocean; thereby helping to drive ocean currents,which distribute heat around the Earth, andregulates the exchange of heat, moisture, andsalinity in the oceans. Thus the Polar Regions helpto maintain the weather systems and climate allover the world.

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90. The Polar Regions also comprise a variety ofunique landscapes of great aesthetic beauty,making them important tourist destinations thatdeserve to be preserved. For example, the Arcticboasts of “cordillera”, areas that feature some of theworld’s most spectacular glaciers, boreal forests,meadows, ice shattered rugged mountains. TheArctic is also replete with “tundra,” low-lying,treeless plains that are covered with ice and snowall winter, with a permanently frozen sub-soilknown as “permafrost”. Likewise, Antarctica’sspectacular scenery consists of huge ice cliffs anddramatic mountain ranges, cut by immenseglaciers that spill out into a coastal maze of islands,inlets, and waterways, and icebergs of all shapesand sizes, some as big as islands, others exquisitelysculpted.

91. The Regions’ extensive ice and snow cover alsoprovides important wildlife habitat that haveadapted to living in the cold conditions. The Arcticis home to several species of bears, including therare Kodiak, the world’s second largest bear; seals,including endangered fur seals, whales, includingthe endangered Beluga Whale and the bow-headwhale, the Laysan Albatross, which is the largestflying bird in the world, and many other kinds ofbirds, and large herds of caribou. The Antarctic isalso rich in fauna, including penguins, fur seals,petrels, albatrosses, various types of fish, and othermarine mammals. The Polar Regions are alsoimportant wildlife breeding grounds, especially inthe summer. In addition, certain marine areas,especially in the Arctic, remain ice-free year roundor for much of the year, and are richly-endowedwith cod, salmon, trout, and several other types offish.

92. There are also precious minerals in the PolarRegions. In the Arctic, oil has been found in theBarents Sea and there are other minerals in thecontinental shelves and other areas, making miningan important economic activity in the region. Formany years, the Antarctic has also been seen as apossible treasure trove of mineral wealth becauseof its geological ties to the vast mineral resources ofSouth Africa and the rich oil fields of Australia'ssouthern coast.

93. Because of the relatively pristine conditions of theArctic, the wilderness status of Antarctica,inaccessibility, and other characteristics, the PolarRegions are also important places to conductscientific research and experiments. This researchcan provide benefits on a range of important issues,such as the understanding of weather patterns,possible impacts of global climate change,continental drift, and biological adaptability. Thebest known example is research on impacts of

manufactured compounds, especiallychrorofluorocarbons, on the ozone concentrationsin the Earth’s atmosphere. Research conducted inAntarctica has revealed that these substances,which were first thought to be safe and werecommonly used in spray cans and air conditioners,lead to loss of ozone gas, which protects livingthings from damage by high levels of ultravioletradiation from the sun. Research has shown thatloss of atmospheric ozone over Antarctica hasallowed more ultraviolet radiation to reach theEarth’s surface in increasingly large areas in theSouthern hemisphere. These findings were crucialin promoting international agreement on thephase-out of ozone depleting substances that hasbeen discussed in more detail in Chapter 11 of thisManual. There are currently eighteen countriesoperating research stations in Antarctica, makingthe preservation of Antarctica for scientific researchone of the issues to be addressed by law.

94. Both Polar Regions’ ecosystems are fragile andhave been faced with a number of environmentalthreats originating mainly from outside the regions.One of the problems is that of climate change. Itresults from the release of carbon dioxide,methane, and other green house gases into theatmosphere from deforestation, industrial,agricultural, and other economic activities takingplace in Europe and other parts of the world. Thereis ample scientific data showing that as a result ofaccelerated rates of warming in Polar Regions dueto increased release of harmful substances in theatmosphere, the regions have warmed alarminglyin a short period of time in recent years. As thePolar Regions warm, they can drive and amplifyglobal temperatures, causing areas of the worldthat are currently cold to be warm. Warming hasalso caused a dramatic reduction in thickness ofthe ice sheets as they melt increasingly, threateningto destroy coastlines surrounding the Arctic andaccelerating rates of erosion, flooding, and damageto buildings and infrastructure. It is also likely toadversely affect polar bears and other speciesadapted to living in polar conditions.

95. In addition to the dangerous hole in the ozonelayer over Antarctica, the Arctic has, since the1950s, experienced an air pollution phenomenonknown as arctic haze. This is a reddish-brown hazecomposed of very small particles containing a widevariety of man-made and natural compoundsincluding sulphate compounds, persistent organicpollutants, heavy metals, soot, and hydrocarbons.Winter winds carry the deadly contaminants fromthe industrialized regions of Europe, Asia, andAmerica to the Arctic. Here, the haze reducesvisibility in the winter, and, coupled with increasedblackness of snow on the ground, threatens to

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change incoming and out-going radiation levelsand to modify the climate in the region andsurrounding countries.

96. Petroleum and chemical shipments from onecountry or continent to another through the watersin the Polar Regions add to the risks of pollutiondamage from spills and leakage. Reports indicatethat between 1971 and 1997, there were 2,742accidental spills of petroleum products in theregion. The disastrous shipwreck of theArgentinean vessel Bahia Paraiso in Antarcticwaters in January 1989 illustrates the seriousness ofthe threats posed by sea transportation ofhazardous substances. The accident was,unfortunately, followed by the even graver ExxonValdez oil spill in Alaska, which dramatizedconcerns about hazardous industrial and transportactivities in Polar Regions. The susceptibility ofPolar Regions to contamination by oil and otherhazardous substances is exacerbated by the factthat, at present, technology for cleaning up spilledpetroleum is not adequate to remove oil from ice-covered waters.

97. In addition to the Regions’ shared characteristics,they have distinct characteristics that create distinctchallenges. For instance, while the Arctic straddlesthe territories of several countries, Antarctica isisolated, and both the continent and thesurrounding high seas are not subject to theterritorial jurisdiction of any state that mightexercise national protection over its ecosystem. Asa result, uncontrolled extraction of its fish, seals,whales, and other resources has led to over-exploitation of resources over which no individualstate can lay claim. As early as 1892, ships fromNorway and other countries were already heavilyextracting whales in Antarctica. By 1934, largeJapanese whaling ships and ships from othercountries had also become a more or lesspermanent feature in the region. These werejoined by whaling and sealing ships from theUnited States of America in 1948, and extraction ofliving resources continued in the region unabated,threatening to deplete the resources.

98. Since no single state could exert control over theuse of Antarctica, its environment was alsosubjected to military activities by a number ofcountries that conducted not only military training,but also made it a site for testing nuclear and otherweapons and for uncontrolled dumping of all kindsof wastes, threatening to destroy its ecosystems.Whereas Antarctica is non-militarized, theactivities of submarines, notably during the ColdWar, made the Arctic a highly strategic region.Military forces of Russia, and other countries that

operated nuclear sub-marines bases, left behind,dumped, or sank radioactive nuclear wastematerials in their bases in the Arctic. Radioactivematerials have also been generated by fallout fromweapons testing that took place, especiallybetween 1945 and 1980, and from nuclearaccidents, such as the 1986 Chernobyl accident. Inaddition, there have been discharges of nuclearwastes from nuclear storage facilities and nuclearpower plants in Siberia, and from other parts of theregion that have polluted the Barents Sea and otherenvironments in the region.

99. A further significant difference between the twopoles rests in the fact that Antarctica has nopermanent population except for research scientistswhose number average 200 per year, and summertourists. By contrast, portions of the Arctic areinhabited by indigenous populations, including theEskimo of Alaska and the Saami of northernScandinavia, with a total population ofapproximately 3.8 million. The indigenous peopleundertake various economic activities includingagriculture, fisheries, mining, and manufacturing.They have also opened up the region toaccelerated rates of oil and gas exploration andexploitation in the Barents Sea and other areas, andto accelerated rates of mining of zinc, cadmium,and other minerals. These activities havecontributed to the discharge of harmful substancessuch as wastes, polychlorinated biphenyls andmercury into the Arctic environment. Recentsurveys indicate that more than two million litres ofwaste oil and fuel, and approximately 260 tonnesof other hazardous wastes, are produced annuallyby some communities and that their poor disposalthreatens to damage the ecosystems of the region.Therefore, the presence of these populations raisesthe need in the Arctic, unlike in the Antarctica, tobalance the economic needs of the population,including mineral exploitation, with ecologicalneeds. More generally, the presence of indigenouspopulations also raises issues related to indigenousrights, rather than simply state rights.

100. Because of the global nature of the problemsoriginating from outside the Polar Regions, theenvironmental issues they raise are likely bestaddressed by global agreements that focus on theroot causes of the problems. The relevant regimes,including the Vienna Convention for the Protectionof the Ozone Layer and Protocol, the UnitedNations Convention on Climate Change and itsKyoto Protocol, the Stockholm Convention onPersistent Organic Pollutants, and the BaselConvention on Hazardous Wastes are covered inchapters 11, 12, and 13 of this Manual.

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2. International Environmental Regime relating toAntarctica

a) The Antarctic Treaty

101. The availability of free-for-all minerals, fish, andother resources in Antarctica and the potential touse the region for all kinds of purposes free ofcharge also led to a scramble by many nations toown portions of it. By the end of the second WorldWar, there were conflicting claims of territorialsovereignty over portions of Antarctica by anumber of these states, including Argentina,Australia, Chile, France, New Zealand, Norway,the United Kingdom, the Soviet Union, andpotentially, the United States.

102. In order to resolve disputes arising out of thevarious claims, to protect the various interests, andto prevent war between the wrangling nations, theUnited States spearheaded consultative efforts toeliminate territorial dispute over Antarctica and topreserve pending claims, non-military status of theregion, and scientific research opportunities.Collaborative efforts between the states, with inputfrom world scientists, culminated in the adoptingin1959 of the Antarctic Treaty in Washington by thetwelve states that had been actively undertakingresearch activities in Antarctica, includingArgentina, Australia, Belgium, Chile, France, Japan,New Zealand, Norway, South Africa, UnitedKingdom, United States, and the former SovietUnion.

103. Since adoption, it has 28 consultative parties and17 acceding states, making a total of 45, as ofNovember 2005. The 1959 Antarctic Treaty appliesto the area south of latitude 60 degrees south,including ice shelves. In the Preamble, the partiesrecognize that “it is in the interest of all mankindthat Antarctica shall continue forever to be usedexclusively for peaceful purposes and shall notbecome the scene or object of internationaldiscord.” The Antarctic Treaty thus created newground by aiming to cooperatively govern thestatus and conservation of an entire continent.Some commentators would suggest that the treatylaid the foundation for the status of Antarctica as“common heritage of humankind,” aninternational environmental law concept discussedin more detail in Chapter 3 of this Manual.

104. The main thrusts of the treaty as provided in articlesI, II, and IV are to ensure that Antarctica is used forpeaceful purposes only; to ensure the freedom ofscientific investigation and internationalcooperation in scientific research on the continent;and to freeze any claims of territorial sovereignty

over Antarctica. To meet these key objectives,parties agreed in article I to prohibit militaryactivities, such as the establishment of militarybases or weapons testing in Antarctica. Article III(1) looks to promote international scientificcooperation, including the exchange of researchplans and personnel, and requires that results ofresearch be made freely available. In article IV (1)and (2), the 1959 Antarctic Treaty provides that noactivities will enhance or diminish previouslyasserted rights or claims to territorial sovereignty inAntarctica, and that no new or enlarged claims canbe made.

105. The only express reference to environmentalprotection in the 1959 Antarctic Treaty itself isarticle IX(1)(f), which provides that parties maymake recommendations on measures regarding“preservation and conservation of living resourcesin Antarctica.” However, other parts of the treatyare also relevant to environmental protection.Aside from the above mentioned preservation ofAntarctica for the purposes of research, the mostrelevant provisions are those prohibiting nuclearexplosions and the disposal of radioactive waste inAntarctica under article V. These provisions madeAntarctica the first nuclear weapons-free zone inthe world. Although nuclear power was notprohibited, detonation of nuclear bombs, testing ofnuclear weapons and storage of wastes fromnuclear facilities in Antarctica were bannedentirely. On the whole, the provisions aim topromote the idea of peaceful use of Antarctica andto reduce the danger of contamination of theAntarctic environment.

106. Article VII provides for the inspection, at any timeand without prior notice, of other parties’ ships,stations, installations, and equipment in Antarcticato ensure the observance of, and compliance with,the 1959 Antarctic Treaty. In article VIII (1), theAntarctic Treaty clarifies that, irrespective of theparties’ positions regarding jurisdiction over allother persons in Antarctica, observers and scientificpersonnel are subject to the jurisdiction of the partyto which they are nationals in respect of all acts oromissions occurring while they are in Antarctica.Under article X, parties undertake to exertappropriate efforts to the end that no one engagesin any activity in Antarctica that is contrary to theAntarctic Treaty’s principles and purposes.

107. Articles VIII (2) and XI, in turn, provide for thesettlement of disputes. They require that alldisputes and claims arising between partiesconcerning use or rights and claims over Antarcticaand any other disputes arising as a result ofinterpretation or implementation of the agreement

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be resolved through peaceful means. If parties failto reach agreement through peaceful means, theyare free to refer matters to the International Court ofJustice.

108. Article IX provides for the parties to meetperiodically to discuss recommended measures tofurther the objectives of the Treaty. The parties canalso consider further arrangements on specificissues and adopt necessary amendments to thetreaty, which under article XII, enter into force foreach party as it ratifies or accedes to it. Onlyconsultative parties can participate in the meetingsthat adopt recommendations or amendments. Thisgroup of parties comprises the original twelvesignatories to the treaty, and fifteen additionalparties that have acquired this status by joining thetreaty and conducting scientific research inAntarctica as provided under article IX(2). Theremaining seventeen parties merely have observerstatus at the meetings of the consultative parties.

109. Since the 1959 Antarctic Treaty entered into forceon 23 June 1961, parties have held regularconsultative meetings. In addition to helpingreduce the tensions surrounding territorial claimsand strategic interests in Antarctica, theseconsultations have resulted in the gradualdevelopment of what has become known as theAntarctic treaty system. It comprises the originaltreaty, two treaties on the conservation of AntarcticSeals and Antarctic Marine Living Resources,respectively, and a ground-breaking protocol onenvironmental protection.

b) Convention for the Conservation of Antarctic Seals

110. The first additional agreement to be adopted wasthe Convention for the Conservation of AntarcticSeals (“1972 Seals Convention”). The SealsConvention was adopted on 1 June 1972, andentered into force on 11 March 1978. As ofNovember 2005, the Seals Convention has 16parties.

111. The Seals Convention is concerned with variousspecies of seals in the marine environment ofAntarctica, specifically in the Southern Ocean.Antarctic seals are vulnerable to over-exploitationfor commercial purposes, especially becauseAntarctica is not subject to the jurisdiction of anygovernment that could exercise control overharvesting of marine living resources. Parties wereconcerned that due to over-exploitation, thepopulation of Antarctic seals was threatened withdepletion.

112. To address this concern, the 1972 Seals Conventionestablishes a number of rules regarding harvestingand implementation of various species of seals thatapply to nationals of parties and to vessels flyingthe flags of parties. ArticleI includes a prohibitionon the killing or capture of various species of seals,including southern fur seals, unless the killing orcapture is done in accordance with therequirements stipulated by the convention. Articles2(2) and 4 require each party to create lawsestablishing a permitting system for their nationalsand vessels flying their flags that are engaged inseal harvesting in Antarctica. In the permits, partieswould, for example, set catch limits and /or openand closed seasons or areas to ensure thatharvesting of the various species of seals does notcause their populations to fall below sustainablelevels. In setting any limits, parties are required byarticle 3(2) of the 1972 Seals Convention to basedecisions on the best scientific and technicalevidence available. Article 5 requires them to shareinformation on any such measures with otherparties through the Scientific Committee onAntarctic Research, an independent body thathelps to address various environmental issues onAntarctica.

113. An Annex to the 1972 Seals Convention containsspecific rules on catch limits, places total bans onthe catch of four species of seals, establishes openand closed seasons for harvesting other speciesseals, and outlines other rules that parties haveestablished. These rules are to be observed byparties in creating and implementing measures thatthe Seals Convention requires to assure sustainableharvesting of seals and to prevent depletion of theirspecies. However, since there has been nocommercial sealing in the Antarctic area coveredby the treaty since 1964, activity under the SealsConvention has been limited to collectinginformation on annual kills or captures for scientificpurposes.

c) Convention on the Conservation of AntarcticMarine Living Resources

114. The Convention on the Conservation of AntarcticMarine Living Resources (“1980 CCAMLR”) wasthe second agreement negotiated to complementthe Antarctic Treaty. Notwithstanding the diversityof species of living plants, mammals, fish, andother organisms in Antarctica, there initially was noagreement among Antarctic Treaty partiesspecifically dealing with all living resources.Recognizing the gap, after consultation andnegotiation, parties adopted the CCAMLR on 20May 1980, and the agreement entered into forceon 7 April 1982. In contrast to the 1972 Seals

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Convention, article IV of 1980 CCAMLR providesthat the agreement is open also to non-parties tothe Antarctic Treaty. As of November 2005, it has30 parties.

115. 1980 CCAMLR has been heralded as one of the firstglobal conventions to reflect both the ecosystemand precautionary approaches to environmentalprotection. It was intended to create a frameworkfor cooperation among parties to balanceconservation and rational use of Antarctic marineliving resources. The preamble squarely places theprotection of marine living resources in the contextof the protection of the integrity of the Antarcticmarine ecosystem. According to article I(2), theterm “Antarctic marine living resources” includespopulations of fin fish, molluscs, crustaceans, birds,and other living organisms found South of theAntarctic Convergence. Article I(3), in turn, definesthe Antarctic marine ecosystem as “the complex ofrelationships of Antarctic marine living resourceswith each other and with their physicalenvironment.” In keeping with this ecosystemapproach, article I(1) extends the scope of theCCAMLR’s application to include Antarctic marineliving resources in an area that is larger than thatcovered by the 1959 Antarctic Treaty.

116. Article II of 1980 CCAMLR sets a number ofecosystem-oriented principles to guide parties inundertaking steps to conserve resources and togovern harvesting of the resources. The firstprinciple in article II (3)(a) is sustainable utilizationof the resources, which requires, among otherthings, that parties take steps to prevent decrease inthe size of any harvested population to levelsbelow that which ensures its stable increment.Parties may, for example, establish catch limits andopen and closed harvesting seasons to maintainpopulations of commercial and other species andto prevent over harvesting. Under article II (3)(b),parties must also work to maintain the ecologicalrelationships between harvested and dependentand related populations of Antarctic marine livingresources. Reflecting a precautionary approach,article II(3)(c) further highlights the need for“prevention of changes or minimization of the riskof changes in the marine ecosystem which are notpotentially reversible over two or three decades,taking into account the state of availableknowledge of the direct and indirect impact ofharvesting...” and related activities.

117. In article V, the 1980 CCAMLR parties that are notparties to the Antarctic Treaty agreed to abide bymeasures for conservation of living resources inAntarctica that have been agreed to under the

Antarctic Treaty. Among other things, the measuresunder article XXIV and other provisions of 1980CCAMLR include monitoring by parties of fishcatches, fishing vessels, and use of appropriatefishing gear to ensure that fish stocks are notdepleted; designation of closed and open fishingseasons; and use of scientific survey techniques tostudy the behaviour, breeding patterns, and othercharacteristics of marine living resources so as topreserve their populations.

118. Article VII creates the Commission for theConservation of Antarctic Marine Living Resources(“Commission”) to facilitate cooperativeconservation efforts and to perform variousconservation-related functions. According toarticles IX and X, these functions includefacilitating research into and comprehensivestudies of Antarctic marine living resources and ofthe Antarctic marine ecosystem, compiling data onthe status of and changes in population of Antarcticmarine living resources and on factors affecting thedistribution, abundance and productivity ofharvested species and dependent species, andsetting catch limits that are applicable to all parties.Managed fisheries exist, inter alia, for finfish, krilland squid. In keeping with CCAMLR’s ecosystem-oriented conservation approach, the Commissionis also to seek cooperation with respect to theconservation of associated species that straddle theConvention area and adjacent areas as provided byarticle XI. The Commission is supported by apermanent secretariat based in Hobart, Tasmania,Australia.

119. In addition to the Commission, articles XIV and XVestablish a Scientific Committee for theConservation of Antarctic Marine Living Resources(“Scientific Committee”). The Scientific Committeeis a consultative body whose responsibilitiesinclude the collection, study, and exchange ofinformation with respect to the marine livingresources in the area to which the Conventionapplies. It also assists the Commission by gatheringand assessing information, establishing criteria andmethods pertaining to conservation measures andharvesting limits, and by making otherrecommendations that the Commission may adopt.

120. Article XXI requires all parties to take appropriatemeasures to ensure compliance with 1980CCAMLR. The Convention reinforces its approachto compliance by providing, in article XXIV for asystem of observation and inspection designedboth to promote the Convention’s objectives and toensure observance of its provisions. CCAMLR’sfocus on compliance notwithstanding, its efforts at

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effective ecosystem protection are beingundermined by illegal, unreported, andunregulated fishing in the convention area. Inresponse to the challenge, a variety of steps havebeen taken within the framework of CCAMLRregime to address the problem of illegal fishing. In1999, parties adopted a Catch DocumentationScheme for toothfish. The Scheme helps to monitorinternational trade, identify the origins of imports,and assists in determining if imports from theConvention Area are consistent with theCCMALR’s conservation measures. It also providescatch data for assessing fish stocks.

d) Protocol on Environmental Protection to theAntarctic Treaty

121. The Protocol on Environmental Protection to theAntarctic Treaty (“1991 Madrid Protocol”) isintended to fill the remaining gaps in the AntarcticTreaty System, and to complement the 1959Antarctic Treaty with respect to environmentalprotection as provided in the Preamble and article4 thereof. Like the 1980 CCAMLR, the MadridProtocol adopts an ecosystem-oriented approach.The Madrid Protocol was adopted on 4 October1991, and entered into force on 14 January 1998.

122. Under articles 21 and 22 of the Protocol, the 1991Madrid Protocol is open to all parties to theAntarctic Treaty. To date, the Protocol has twenty-nine parties, including the twenty-sevenconsultative parties. Five Annexes to the 1991Madrid Protocol, which detail specificenvironmental protection measures andrequirements, are also in force: on environmentalimpact assessment (Annex I), on the conservationof Antarctic flora and fauna (Annex II), on wastedisposal and management (Annex III), onprevention of marine pollution (Annex IV), and onarea protection and management (Annex V).

123. In addition to concerns over a growing touristindustry and pollution emanating from researchfacilities, the impetus for the 1991 Madrid Protocolwas provided by the contentious issue of mineralresource mining in Antarctica. Attempts to resolveconflicting state interests in mining and explorationof the Antarctic mineral resources had led to thenegotiation of a Convention on the Regulation ofAntarctic Mineral Resource Activities in 1988. Thisagreement would have permitted mining inAntarctica. However, due to many parties’ strongresistance to any mineral exploitation in Antarctica,the Convention never came into force. Instead,article 7 of the Madrid Protocol bans mining andother mineral resource activities in Antarctica.Article 25(2) allows for the possibility of review of

the situation only after fifty years of its entry intoforce.

124. In the 1991 Madrid Protocol, Antarctica isdesignated as a nature reserve, and in article 2,“devoted to peace and science.” Article 3 sets outenvironmental principles that provide rules togovern all human activities in the Antarctic treatyarea. It requires that in the planning andimplementation of all activities, fundamentalconsideration be given to the intrinsic value of theAntarctic environment, including its wildernessand aesthetic values and its value as an area for theconduct of scientific research. Parties are alsorequired to conduct activities in a way that avoidsadverse effects on the Antarctic climate, weatherpatterns, or air and water quality; and to avoidsignificant changes in the atmospheric, terrestrial,aquatic, glacial, or marine environments. They arealso required to avoid causing detrimental changesin the distribution, abundance or productivity ofspecies or populations of species of fauna and floraincluding endangered or threatened species orpopulations of such species. Article 3 also requiresthat all activities be planned and conducted so asto give priority to scientific research and to preservethe value of Antarctica as a site for research,notably research related to the global environment.Under article 6, parties must cooperate in theplanning and conduct of activities in the treatyarea.

125. Article 8 brings a precautionary approach to theMadrid Protocol. It identifies, according tosignificance of potential impact, the activities thatare subject to prior environmental impactassessment pursuant to Annex I. This articleobligates parties to ensure application of theassessment processes set out in the Annex to allnew or significantly changed activities. Theseanticipatory requirements are backed up by articles13, 14, 15 and 16, which require parties to ensurecompliance with the 1991 Madrid Protocolthrough appropriate regulatory and enforcementmeasures at the domestic level, to arrangeinspections of activities and equipment inAntarctica, to provide for prompt and effectiveresponse action to environmental emergencies inthe treaty area, and to create an Annex on rules andprocedures relating to liability for environmentaldamage in the treaty area. Parties are in the processof negotiating this Annex.

126. Article 11 establishes a Committee forEnvironmental Protection composed of partyrepresentatives, and their experts and advisers. In1988, it met for the first time during the Twenty-Second Antarctic Treaty Consultative Meeting and

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serves as the advisory body for the implementationand observance of the Madrid Protocol and itsAnnexes as provided under article 12.

3. International Environmental Regime

relating to the Arctic

127. Unlike the Antarctic, for which a comprehensivetreaty regime developed over a number of decades,the Arctic is not governed by a binding legalregime. The region has no history ofcomprehensive multilateral cooperation, perhapsdue to the strategic and antagonistic efforts thatprevailed throughout the Cold War. Besides anumber of bilateral agreements between individualArctic states on individual issues such as fisheries,wildlife, and protection from pollution, the Arcticlegal regime consists primarily comprised of non-legally binding declarations, plans of action,strategies for environmental protection and similararrangements between states in the region.

a) Declaration on the Protection of the ArcticEnvironment

128. The Declaration on the Protection of the ArcticEnvironment (“Arctic Declaration”) was the firststep in developing a pan-Arctic approach toenvironmental protection. It was adopted in 1991,at a Ministerial Conference held in Finland by theeight countries with portions of their territorieslying in the Arctic: Canada, Denmark, Finland,Iceland, Norway, Russia, Sweden and the UnitedStates. The Arctic Declaration established theArctic Environmental Protection Strategy (“AEPS”),joint action plan that outlined cooperative stepsand actions to protect and preserve the Arcticenvironment. In its objectives, the AEPS reflectedthe need to balance protection of Arcticecosystems and sustainable use of naturalresources by local populations.

129. In the AEPS, the Arctic countries undertook tocooperate in conducting scientific research toidentify sources, pathways, sinks and effects ofpollution, and to share available data. Priority wasgiven to identification of the various aspects ofpollution by persistent organic pollutants, oil,heavy metals and radioactive materials for possibleaction to reduce their adverse impacts on theenvironment. The countries also agreed toconduct assessments of potential environmentalimpacts of development activities on the Arcticenvironment and to give due regard to traditionaland cultural needs, values, and practices of Arcticindigenous peoples in their cooperative efforts.

130. The AEPS was criticized for its piecemeal approachto environmental concerns and the absence ofconcrete commitments and timelines.Nonetheless, the AEPS has been important infocusing attention on the need for a coordinatedapproach to the protection of the Arcticenvironment, and in laying the foundations forsubsequent cooperative efforts. The AEPS alsolaunched a series of cooperative programmes thatcontinue to operate, including:

• Arctic Monitoring and AssessmentProgramme, which was intended to assess thelevels and impacts of key Arctic pollutants;

• Emergency Preparedness, Prevention, andResponse Programme, which was to providea framework to address the threat ofenvironmental emergencies;

• Conservation of Arctic Flora and Fauna,which was to facilitate the exchange ofinformation and coordination of research intospecies and habitats; and

• Protection of the Arctic Marine Environment,which was to take measures to preventmarine pollution.

b) The Arctic Council

131. In 1996, in the Ottawa Declaration, the Arcticcountries established an Arctic Council to be incharge of promoting and coordinating actions andsteps for environmental protection. The ArcticCouncil grew out of the cooperative context of theAEPS and maintains the four AEPS programmesthat were outlined above, but also placesenvironmental protection in a much wider context,notably the need for sustainable development inthe region. Most of its sessions and activities areopen to participation by and input from localpopulations, with a particular role being accordedto indigenous peoples in the Arctic and theirrepresentative groups. Military matters areexplicitly excluded from its purview.

c) The Barrow Declaration

132. In 1988, the Arctic Council adopted the BarrowDeclaration in 1998, in which the eight Arcticstates adopted an Arctic Council Action Plan toeliminate Pollution of the Arctic (“ACAP”). TheACAP set forth a number of activities specificallyintended to deal with pollution of the Arcticenvironment with hazardous substances. Itrecommended and endorsed specific measuresincluding biodiversity protection in the region,calling upon UNEP to initiate a global assessmentof mercury that could form the basis for appropriateinternational action in which the Arctic states

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would participate actively. It also encouragedArctic states to ratify the convention on persistentorganic pollutants, established a committee toevaluate and synthesize knowledge on climatechange and increased ultraviolet radiation, andsupported the work of the intergovernmental panelon climate change.

d) Regional Programme of Action for the Protection ofthe Arctic Marine Environment from Land-Based

Activities

133. On 18 September 1998, the Arctic Counciladopted the Regional Programme of Action for theProtection of the Arctic Marine Environment fromLand-Based Activities (“RPA”), a non-legallybinding environmental instrument. Keyconsiderations in the RAP include recognition that80% of marine pollution is land-based and thatcertain Arctic populations of plants and animals areamongst the most exposed populations in theworld to certain environmental contaminants. Inthe RPA, the Arctic Council recognized that,notwithstanding existing efforts at national andinternational levels, it would not be possible toeliminate pollutants in the eight countries all atonce. Therefore, the Arctic Council chose togradually phase-out pollutants from the Arctic,beginning with persistent organic pollutants andheavy metals. The Arctic Council seeks fundingfrom donors to carry out their proposed activities.

e) Sub-Regional Regimes

134. Non-legally binding agreements on theenvironment in the Arctic also exist at sub-regionallevel. Cooperation at the sub-regional level in theArctic began in the 1990s, building on andreinforcing earlier bilateral contacts. The BarentsEuro-Arctic Region was established under the 1993Kirkenes Declaration and operates at two levels -between the governments of Finland, Norway,Russia and Sweden, and between the eightnorthernmost counties and/or provinces in thesecountries. The Barents Regional Council createdunder the 1993 Kirkenes Declaration is comprisedof representatives from local governments andrepresentatives of the Saami, an indigenous groupof people in the region seeking to make joint effortsin addressing environmental issues in the region.

f) Legally Binding Instruments

135. There exists a body of legally binding agreements,which, although not focused on the Arcticecosystem as such, applies to aspects of Arcticenvironmental protection, including the following:

• 1973 Agreement on Conservation of PolarBears between Canada, Denmark, Norway,the former Soviet Union, and the UnitedStates to protect polar bears and the flora andfauna of the Arctic;

• Convention on Conservation of North PacificSeals adopted by Canada, Japan, the formerSoviet Union and the United States on 9February 1957; and

• Agreement on the Conservation of African-Eurasian Migratory Waterbirds (“AEWA”),which was negotiated within the frameworkof the Convention on the Conservation ofMigratory Species of Wild Animals andentered into force on 1 November 1999.

136. The existence of many non-legally bindingagreements seeking to address environmentalissues in the Arctic shows that concerned partieshave the will to take steps and actions to preventharm. However, a comprehensive legally bindinginstrument that would integrate sustainabledevelopment and environmental protection as akey policy requirement is necessary. The varioustopics covered in the non-legally bindingdeclarations, plans of actions, and strategies, aswell as other strategies by Arctic communitiesshould now be incorporated into a bindingagreement to promote sustainable development ofthe region. In this regard, the Antarctic Treatysystem that is well developed should provideexamples to the Arctic Council on steps forward.For the Antarctic, the disarmament of nations, themaintenance of peace over Antarctica, and itspreservation for peaceful purposes only, areremarkable achievements of the Antarctic Treatysystem, which shows the significant roleinternational law can play in addressingenvironmental problems. All parties to theagreements under the Antarctic Treaty systemshould be encouraged to make efforts toimplement them at national levels to continue topreserve the uniqueness of the Polar Region and itsecological significance.

4. National and Local Initiatives relating to the PolarRegions’ Ecosystems

137. At the moment, all is not well with mountain,forest, and polar regions ecosystems, even in someof the countries where implementing legislationexists. A lot more effort should be made at nationallevels to protect, conserve, and sustainably manageecosystems. This chapter demonstrates that there ispolitical will to implement internationalinstruments at national levels and this can serve asa useful enforcement mechanism. Examples ofnational legislations provided show that different

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approaches have been taken by nations in theirimplementation of international instruments.While some countries have created newimplementing laws, others have strengthenedexisting laws to provide for actions and measuresagreed at the international level. While somecountries’ implementing laws have comprehensiveprovisions providing for ecosystem conservation,protection, and sustainable development, othershave framework implementing laws makinggeneral provisions and allowing for creation ofimplementing regulations at national and lowerlevels. Effective domestic enforcement of the lawscan make all of the different approaches work toensure sufficient protection, conservation andsustainable management of ecosystems. Effortsshould also be made to encourage parties that donot yet have domestic implementing legislation totake measures to put it in place. The samplelegislation examined in this chapter provides usefulmodels for implementation.

138. Although a number of countries have takenlegislative actions for the protection andconservation of Polar Regions’ ecosystems, not allthese laws indicate clearly whether or not theywere intended to implement the internationalinstruments at domestic levels. In addition, giventhe non-legally binding nature of mostinternational arrangements regarding the Arctic,“implementing legislation” in the strict sense of theterm is difficult to identify. Therefore, the followingdiscussion focuses on examples of United Statesand Australian legislation that explicitly pertains tothe implementation of the Convention on theConservation of Antarctic Marine Living Resources(“Antarctic Marine Resource Convention”).

a) United States

139. The United States became a party to 1980CCAMLR on 7 April 1982. In November 1984, itpassed the Antarctic Marine Living ResourcesConvention Act, 16 U.S.C. Sections 2431-2444, toprovide the legislative authority to implement theCCAMLR (“Marine Resources Act”).

140. Sections 2433, 2436 and 2441 of the MarineResources Act require the Director of the UnitedStates National Science Foundation and theSecretary of Commerce to conduct and supportbasic research of the Antarctic marine ecosystemfor purposes of implementing appropriateconservation measures for the Antarctic livingresources and in doing so, to consult with otheragencies and the Marine Mammal Commission asappropriate. Under Section 2434 of the MarineResources Act, the United States Secretary of State

is responsible for establishing a system ofobservation and inspection pursuant to Art. XXIV ofthe Convention, receiving communications fromthe Commission, and to taking appropriateconservation action on them.

141. Under Section 2436, the Secretary of Commerce,in consultation with the Secretary of State and otherUnited States agencies, has the authority topromulgate necessary and appropriate regulationsfor implementation of the Marine Resources Act.In exercise of this authority, the Secretary haspromulgated federal regulations creating apermitting system for all United States nationals,vessels, and others operating under United Statesjurisdiction for harvesting of marine livingresources in the Antarctic, for importation of suchresources into the United States, and for their re-exportation from the United States to othercountries. Specifically, the Codes of FederalRegulations appearing at Title 50, Part 300, Section300 prohibit importation into the U.S of anymarine living resources without an import andharvesting permit. Further, the regulationsimplement a Catch Documentation Scheme forPatagonian toothfish, adopted by the AntarcticMarine Resource Convention to control its illegalharvest. Anyone who wishes to import or harvestthe fish must possess a harvest or dealer permit.Section 300.103(3) of the regulations require thatconditions be placed on the permits limiting theamount of catch and/or requiring compliance withspecified conservation measures.

142. Section 2435 creates a number of offenses inrelation to marine living resources of Antarctica,including: engaging in harvesting or otherassociated activities in violation of the AntarcticMarine Resource Convention or a conservationmeasure in force in the United States pursuant toarticle IX of the Convention, which requires partiesto undertake various conservation measures,including designation of protected marine speciesand a quantity of species which may be harvestedfrom the Convention area; violating a regulationpromulgated under the Marine Resources Act;transporting, offering for sale, selling, purchasing,importing, exporting, or possessing Antarcticmarine living resources (or part or product thereof)which the person knows or reasonably shouldhave known were harvested in violation of aconservation measure in force in the United Statespursuant to article IX of the Antarctic MarineResource Convention or in violation the MarineResources Act's regulations; and refusing to permitan authorized officer of the United States to boarda United States vessel or a vessel subject to UnitedStates jurisdiction to conduct a search or inspection

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to enforce the Convention, the Act, or regulationsmade there under Sections 2437 to 2439 of the Actprovide for civil and criminal penalties for itsviolation, as well as seizure and forfeiture ofAntarctic marine living resources, vessels, andequipment. The responsibility for enforcing the Actlies with the United States Secretary of Commerceand the U.S. Coast Guard.

143. Since 1988, all United States importers ofPatagonian toothfish and all other Antarctic marineliving resources harvested in the area to which theCCAMLR applies have been required to hold anAntarctic import permit. In addition, the UnitedStates has been continuously monitoring andcontrolling the harvesting and associated activitiesof its nationals and vessels flying its flag in theConvention area to ensure compliance with theregulations.

b) Australia

144. As a party to the Antarctic Marine ResourceConvention, Australia enacted the Antarctic MarineLiving Resources Act, Number 30 of 1981(“Australian Marine Resources Act”) to give effectto the Convention on Conservation of AntarcticLiving Resources and to the conservation measuresthat Australia accepted in accordance with articleIX of the Convention. It applies to Australiannationals, including businesses registered inAustralia that are engaged in harvesting of livingresources in Antarctica.

145. One of the means by which the Australian MarineResources Act regulates harvesting of livingresources to assure their conservation and

preservation is by establishing a permitting systemfor harvesting for all purposes. Activities for whichpermits are required under the Act include:harvesting living marine organisms of a specifiedkind or kinds, carrying out research with respect toliving marine organisms of a specified kind orkinds, and fishing for recreational purposes.Section 9(3) of the Act requires that in consideringthe granting of a permit, due regard must be givento the conservation of Antarctic marine livingresources. Conservation includes rational use of theresources to maintain population size andecological balance, avoiding significant impacts onthe marine ecosystem, and environmental impactassessment for certain activities, including researchactivities near shores as stipulated under article II ofCCAMLR.

146. Carrying out any of the listed activities without avalid permit is a punishable offence under theAustralian Marine Resources Act. The AntarcticTreaty and Government Section of the AustralianAntarctic Division is the Australian governmentalbody responsible for administering the permittingsystem. Once a permit is granted, Sections 9(1)-(7)and 10 of the Act require any restrictions onharvesting and any conditions placed on the permitto control harvesting.

Prof. Jutta Brunnee, Professor of Law and MetcalfChair of Environmental Law, Faculty of Law,University of Toronto


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Resources

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ALPINE CONVENTION available at http://www.convenzionedellealpi.org/page1_en.htm

ANTARCTIC MARINE LIVING RESOURCES CONVENTION ACT OF 1984 available at http://ipl.unm.edu/cwl/fedbook/amlrca.html

ANTARCTIC WEB DIRECTORY available at http://dir.ansme.com/regional/831095.html

ARCTIC ALIVE WEBSITE available at http://www.arcus.org

ARCTIC COUNCIL available at http://www.arctic-council.org/

ARCTIC MONITORING AND ASSESSMENT PROGRAMME available at http://www.amap.no

AUSTRALIA ANTARCTIC MARINE LIVING RESOURCES ACT NO. 30 OF 1981, SECTIONS 9 & 10 available athttp://www.antdiv.gov.au/MediaLibrary/asset/MediaItems/ml_375314273263889_AntMarineLRC81.pdf

BICKSHEK GLOBAL SUMMIT 2002 available at http://www.mtnforum.org/resources/library/faoun02ea.htm

CADMIUM TOXICITY THREATENING WILDLIFE IN ROCKY MOUNTAINS, OSU NEWS (DECEMBER 2000) available athttp://oregonstate.edu/dept/ncs/newsarch/2000/Jul00/cadmium.htm

CODE OF FEDERAL REGULATIONS TITLE 36, CHAPTER 2, FOREST SERVICE available athttp://www.access.gpo.gov/nara/cfr/waisidx_00/36cfrv2_00.html

CONVENTION ON THE PROTECTION OF THE ALPS available at www.mtnforum.org/resources/library/eurco91a.htm

COUNTRY REPORTS ON FORESTS UNDER AGENDA 21 available athttp://www.un.org/esa/agenda21/natlinfo/agenda21/issue/natur.htm#forest

FOREST WEB PORTAL OF THE CONVENTION ON BIOLOGICAL DIVERSITY available athttps://www.biodiv.org/programmes/areas/forest/portal/home.shtml

FRAMEWORK CONVENTION ON THE PROTECTION AND SUSTAINABLE DEVELOPMENT OF THE CARPATHIANS available atwww.mtnforum.org/resources/library/cpsdc03a.htm

HISTORY AND OBJECTS OF FOREST RESERVES available atwww.lib.duke.edu/forest/usfscoll/publications/1905_Use_Book/007-011.htm

INTERNATIONAL COOPERATION OF JAPAN TO PROMOTE SUSTAINABLE FOREST MANAGEMENT IN DEVELOPING COUNTRIES BY MEANS

OF ODA available at http://www.mofa.go.jp/policy/environment/forest/coop0211.html

INTERNATIONAL TROPICAL TIMBER ORGANIZATION available athttp://www.forestry.sarawak.gov.my/forweb/sfm/fres/ip/itto/mission.htm and http://www.itto.or.jp

MOUNTAIN FORUM ON-LINE LIBRARY AND REFERENCE DATABASE available athttp://www.mtnforum.org/resources/library/liblevels/lib315a.htm#law

MOUNTAIN PARTNERSHIP available at www.mountains2002.org/files/pdf/faolawstudy.pdf

NATIONAL (DOMESTIC) LAWS AND POLICIES available at http://www.mtnforum.org/resources/library/mlp_03.htm#NationalLaws

NATIONAL SCIENCE FOUNDATION available at http://www.nsf.gov/od/opp/antarct/anttrty.htm

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OPENING REMARKS BY MR. MUTSUYOSHI NISHIMURA, AMBASSADOR FOR GLOBAL ENVIRONMENT, MINISTRY OF FOREIGN AFFAIRS

AT THE FIRST MEETING FOR THE PROMOTION OF ASIA FOREST PARTNERSHIP, TOKYO, JAPAN (11 NOVEMBER 2002) available athttp://www.mofa.go.jp/policy/economy/fishery/afp/remark0211-2.html

PRESSURES ON THE ARCTIC ECOSYSTEM FROM HUMAN ACTIVITIES available athttp://www.gov.nt.ca/RWED/library/eps/envscn.pdf

RICHARD TARASOFSKY, ED., ASSESSING THE INTERNATIONAL FOREST REGIME, IUCN ENVIRONMENTAL LAW AND POLICY PAPER NO.37 (1999) available at http://www.iucn.org/themes/law/info04.html

SWISS AGENCY FOR THE ENVIRONMENT, FORESTS AND LANDSCAPE available at www.buwal.ch/inter/e/ea_alpen.htm#Scheiz

TITLE 50-WILDLIFE AND FISHERIES, CHAPTER III- INTERNATIONAL FISHING AND RELATED ACTIVITIES, PART 300-INTERNATIONAL

FISHERIES REGULATIONS, SUBPART G--ANTARCTIC MARINE LIVING RESOURCES available athttp://frwebgate5.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=11491446112=1=0=0& WAISaction=retrieve

UNEP, GEO-3 GLOBAL ENVIRONMENT OUTLOOK 2002-2003, CH. 2, SECTION ON FORESTS available athttp://www.unep.org/GEO/geo3/english/177.htm

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UNITED NATIONS FOOD AND AGRICULTURE ORGANIZATION, FORESTRY DEPARTMENT available athttp://www.fao.org/forestry/fo/country/nav_world.jsp?lang_id=1

UNITED STATES CODE, TITLE 16: CONSERVATION available athttp://caselaw.lp.findlaw.com/casecode/uscodes/16/chapters/44a/toc.html

UNITED STATES CODE, TITLE 50, CHAPTER III: INTERNATIONAL FISHING AND RELATED ACTIVITIES available athttp://www.access.gpo.gov/nara/cfr/waisidx_00/50cfr300_00.html

UNITED STATES CODE, TITLE 50: WILDLIFE AND FISHERIES available at http://www.access.gpo.gov/cgi-bin/cfrassemble.cgi?title=200050

WORLD COMMISSION ON FORESTS AND SUSTAINABLE, DEVELOPMENT, OUR FORESTS, OUR FUTURE, CODE OF FEDERAL REGULATIONS, TITLE 36, VOL. 2, PART 200 (UNITED STATES GOVERNMENT PRINTING OFFICE, 1999) availableat http://frwebgate.access.gpo.gov/cgi-bin/multidb.cgi

WORLD HERITAGE CENTER available at http://whc.unesco.org/nwhc/pages/doc/mainfsearch.htm

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“ARCTIC ECOZONES” IN THE STATE OF CANADA’S ENVIRONMENT, ENVIRONMENT CANADA: OTTAWA, (1996).

ARCTIC POLLUTION ISSUES: A STATE OF THE ARCTIC ENVIRONMENT REPORT, (AMAP: Norway, 1997).

Ayesha Ercelawn, END OF THE ROAD – THE ADVERSE ECOLOGICAL IMPACTS OF ROADS AND LOGGING: A COMPILATION OF

INDEPENDENTLY REVIEWED RESEARCH, (NRDC: New York, 1999).

Barbara M.G.S. Ruis, NO FOREST CONVENTION BUT TEN TREE TREATIES, UNASYLVA NO. 206 ON GLOBAL CONVENTIONS

RELATED TO FORESTS, (2001).

Canadian Council of International Law, ed., GLOBAL FORESTS AND INTERNATIONAL ENVIRONMENTAL LAW, (Kluwer, 1996).

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Donald Rothwell, THE POLAR REGIONS AND THE DEVELOPMENT OF INTERNATIONAL LAW, (1996).

Giles Whittell, RUSSIA TO ACCEPT NUCLEAR WASTE FOR $30 BILLION, VANCOUVER SUN, (December 22, 2000).

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NATIONAL FOREST SYSTEM, IN DEFINING SUSTAINABLE FORESTRY, (Gregory H. Aplet et al., eds., 1993).

IUCN DRAFT FRAMEWORK STRATEGY AND ACTION PLAN FOR IUCN WORK IN THE CIRCUMPOLAR ARCTIC, (September 2000).

Janet N. Abramovitz, TAKING A STAND: CULTIVATING A NEW RELATIONSHIP WITH THE WORLD’S FORESTS, WORLDWATCH PAPER,(April 1998).

Jutta Brunnée & André Nollkaemper, BETWEEN THE FORESTS AND THE TREES - AN EMERGING INTERNATIONAL FOREST LAW, (23Envtl. Conservation 307, 1997).

Jutta Brunnée & Stephen J. Toope, ENVIRONMENTAL SECURITY AND FRESHWATER RESOURCES: A CASE FOR INTERNATIONAL

ECOSYSTEM LAW, (5 Yearbook of Intnl. Envtl. L. 41, 1994).

Linda D. Kozaryn, UNITED STATES, RUSSIA, NORWAY SIGN ARCTIC ENVIRONMENTAL PACT, AMERICAN FORCES PRESS SERVICE,(October, 1996).

Mark Floyd, CADMIUM TOXICITY THREATENING WILDLIFE IN ROCKY MOUNTAINS, (News Communication Servs., July 12,2000).

Mia Soderland & Alan Pottinger, eds., RIO+8: POLICY, PRACTICE AND PROGRESS TOWARDS SUSTAINABLE MANAGEMENT,(2001).

PREAMBLE TO THE ANTARCTIC TREATY, reproduced in Lakshman D. Guruswamy, Sir Geoffrey W.R. Palmer, Burns H.Weston & Jonathan C. Carlton, INTERNATIONAL ENVIRONMENTAL LAW AND WORLD ORDER: A PROBLEM-ORIENTED COURSE

BOOK, (2d Ed.) (1999).

REPORT OF THE WORLD COMMISSION ON FORESTS AND SUSTAINABLE DEVELOPMENT, OUR FORESTS, OUR FUTURE, (1999).

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POLLUTANTS, RADIOACTIVITY, AND MERCURY IN THE ARCTIC, (September 2000).

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THE MONTREAL PROCESS, PROGRESS ON IMPLEMENTATION OF THE MONTREAL PROCESS ON CRITERIA AND INDICATORS FOR THE

CONSERVATION AND SUSTAINABLE MANAGEMENT OF TEMPERATE AND BOREAL FORESTS, (February, 1997).

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ENVIRONMENTAL IMPACT ASSESSMENTChapter 21

21. ENVIRONMENTALIMPACT ASSESSMENT

I. Introduction

1. Development can have, and has had over theyears, major impacts on the environment, bydegrading soils and waterways, altering landscapesand threatening biodiversity. In addition toharming our surroundings, these impacts can anddo have significant economic costs and negativelyaffect human health. Environmental ImpactAssessments (“EIA”) provides a tool that wouldassist in the anticipation and minimization ofdevelopment’s negative effects. Undertaken in theearly stages of project planning and design, EIAcould help shape development in a manner thatbest suits the local environment and is mostresponsive to human needs.

2. EIA arose out of the pollution and unnecessarydegradation of natural resources caused by rapidpopulation growth, industrialization, agriculturaldevelopment, and technological progress. EIArecognizes that natural resources are finite andincapable of absorbing the unchecked demands ofmodern society.

3. EIA assesses the impacts of a proposed projectbefore work on the project begins. In somecircumstances, where the impact of policies, plansand programmes is under consideration, EIA iscarried out as a Strategic EnvironmentalAssessment (“SEA”) and provides decision makerswith information about the consequences of thedevelopment programmes under consideration. Inaddition to helping formulating properdevelopment policy, EIA also provides for publicinvolvement in the decision making process. Thus,EIA serves three main functions:

• Integration of environmental issues intoplanning and decision-making;

• Anticipation and minimization ofenvironmental damage; and

• Public participation in decision-making andenvironmental conservation.

4. The conservation ideas that gave rise to EIA arecentral to international environmental law. In thewake of public outcry about environmentaldegradation from development, the United Statespassed the first EIA-related legislation in 1969.Since then, more than 100 countries have adoptedsome form of EIA legislation and policy.

5. EIA concepts are also supported at the internationallevel. In 1987, the United Nations issued the Goalsand Principles of Environmental ImpactAssessment. Similarly, in 1989, the World Bankissued its Environmental Assessment Directive andhas routinely screened funded projects for theirpotential domestic, transboundary and globalenvironmental impacts. In 1991, the UnitedNations Economic Commision for Europe, furtherdeveloping the EIA Guidelines adopted by UNEP,adopted the Convention on Environmental ImpactAssessment in a Transboundary Context, the mostcomprehensive international agreement on EIA.

6. EIA’s focus on environmental conservation andsustainable development echoes general principlesand concepts of customary law. The focus isembodied in many Multilateral EnvironmentalAgreements, including the Convention onBiological Diversity and the United NationsConvention on the Law of the Sea. EnvironmentalPrinciple 17 of the UNCED Rio Declaration statesthat “Environmental impact assessment, as anational instrument, shall be undertaken forproposed activities that are likely to have asignificant adverse impact on the environment andare subject to a decision of a competent nationalauthority.” Thus, EIA reflects the “no-harm”obligation of customary law in the transboundarycontext.

7. One of EIA’s strengths is its ability to be tailored tomeet specific needs of any development situation.Nevertheless, the steps included in EIA are similaracross many applications and include:

• Screening to determine whether a certainproject should be subject to EIA;

• Scoping to decide which impacts should betaken into account by EIA;

• Impact analysis to evaluate the type of likelyenvironmental impacts;

• Mitigation and impact management todevelop measures to avoid, reduce orcompensate for negative environmentaleffects;

• Reporting to catalogue and track the results ofEIA for decision makers and other interestedparties, including the public;

• Review of EIA quality to examine whether theEIA report includes all of the informationrequired by decision makers and the public;

• Decision making to approve or reject projectproposals and, if needed, to set the terms andconditions under which a certain project canproceed; and

• Implementation and follow-up to ascertainwhether the project is proceeding as planned,

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ENVIRONMENTAL IMPACT ASSESSMENT Chapter 21

monitor the effects of the project, and takeactions to mitigate problems that arise duringthe course of the project.

In many cases the steps as above are embodied innational legislation, regulations and policies.National legislation might be specific on EIA, or anintegral part of environmental management andcoordination additionally buttressed by EIAregulation. Numerous framework laws ofdeveloping countries do take such an approach asexamples from Uganda, Kenya, Tanzania, Guyanademonstrate. Three examples are given in sectionIII below

8. Development projects may not only haveenvironmental impacts but may also have social,cultural and economic effects, which can beanalyzed through a Social Impact Analysis (“SIA”).Decision makers often undertake EIA and SIA at thesame time, defining the “environment” and“environmental impacts” broadly to include socialand cultural aspects of development. For example,the construction of a hotel complex will not onlyhave environmental impacts depending on the siteselection but will also have social and economicimpacts through the creation of jobs or thedisplacement of traditional commerce. SIAsgenerally include the analysis of impacts on locallifestyle, culture, community dynamics, andhuman health.

9. Finally, both social and environmental issues canbe addressed in SIA, which assesses the impacts ofa proposed policy, plan or programme, and theiralternatives. Recent developments in internationalenvironmental law seek to promote the adoption ofSIA as a planning tool during the initial stages ofdecision-making.


1. Convention on Environmental Impact Assessmentin a Transboundary Context

10. Initiated through a seminar on EIA held in Warsaw,the Convention on Environmental ImpactAssessment in a Transboundary Context (“EspooConvention”) is the most comprehensiveinternational agreement on EIA. It entered intoforce in 1997 and has currently (as of November2005) 41 parties. Although the Espoo Conventionis a regional agreement of the United NationsEconomic Commission for Europe, it is open forsignature to all members of the United Nations.

11. The main objective of the Espoo Convention is thecreation of EIA-based mechanisms to effectivelymonitor and control trans-boundary pollution.Article 2(1) of the Convention provides that “TheParties shall, either individually or jointly, take allappropriate and effective measures to prevent,reduce and control significant adversetransboundary environmental impact fromproposed activities.”

12. The Espoo Convention is overseen by the Meetingof the Parties (“MOP”), which convened in 1998,2001 and 2004. The MOP’s Bureau and theConvention Secretariat support the MOP.

13. The Espoo Convention stipulates the obligations ofits parties to assess the environmental impact ofcertain development activities early in the decisionmaking process. Each party must establish an EIAprocedure for the development projects listed inAnnex I of the convention (e.g., waste processingplants, infrastructure construction, deforestation,etcetera).

14. The scope of the Espoo Convention is generallylimited to projects listed in its Annex I. However,when an unlisted project may cause a significanttransboundary environmental impact, the affectedsignatories are entitled to request an EIA. Shouldthe parties disagree about the likelihood or severityof a transboundary environmental impact, theaffected party can call for the establishment of anInquiry Commission to advise the affected parties.The parties initiating the disputed project is notobligated to follow the advice of the InquiryCommission.

15. The Espoo Convention also obligates its parties tonotify and consult with each other on all majorprojects under consideration that are likely to havea significant transboundary environmental impact.The procedure must allow for public participationand preparation of an EIA. The affected party andits citizens have the right to participate in thepreparation of the proposed project’s EIA.

16. Public participation in the development of an EIAfigures heavily in the Espoo Convention. Inaccordance with Rio Principle 10, the EspooConvention foresees that public participation in thedevelopment of transboundary EIA will:

• Improve relations between peoples andcountries and prevent transboundaryenvironmental conflicts;

• Develop civil society and democracy;• Promote the timely disclosure of relevant

information to participants in the

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environmental decision-making process;• Help people understand, respect, and accept

final decisions on projects; and• Provide insight into environmental protection

and the mitigation of long-term environmentalproblems that result from developmentdecisions.

17. Article 4 of the Espoo Convention requires the EIAto contain certain information, including(Appendix II):

• Description of the proposed activity and itspurpose;

• Description of reasonable alternatives, whereappropriate, including a “no-action”alternative;

• Description of the likely environmentalimpacts resulting from the proposed activityand its alternatives;

• Description of available mitigation measures;• Explicit indication of predictive methods and

underlying assumptions, as well as relevantenvironmental data relied upon fordevelopment of the EIA;

• Identification of gaps in knowledgeencountered in developing the EIA;

• Outline for monitoring and managementprogrammes and plans for post-projectassessment; and

• Non-technical summary, includingpresentation of visual aides.

18. The Espoo Convention does not contain acompliance mechanism. As such, while a partyinitiating a project is required to undertake an EIA,it is not held to the outcome of the analysis.

2. Protocol on Strategic Environmental Assessment

19. Strategic Environmental Assessment (“SEA”) hasbeen described to be “The formalised, systematicand comprehensive process of evaluating theenvironmental impacts of a policy, plan orprogramme and its alternatives, including thepreparation of a written report on the findings ofthat evaluation, and using the findings in publiclyaccountable decision-making” (Thievel).

20. The Protocol on Strategic EnvironmentalAssessment to the Convention on EnvironmentalImpact Assessment in a Transboundary Context(“2003 SEA Protocol”) is an initiative of the secondMOP of the Espoo Convention that met in February2001. The SEA Protocol was adopted in 2003, andis open for adoption by all members of the UnitedNations. It has not yet entered into force. The firstmeeting of the signatories took place in June 2004.

Pending the Protocol's entry into force, activitiesunder the 2003 SEA Protocol are decided upon bythe Meeting of Signatories.

21. The 2003 SEA Protocol requires its signatories toevaluate the environmental consequences of theirofficial draft development plans and programmes,but not policies. The SEA Protocol provides forextensive public participation in governmentaldecision making in areas such as land use,transportation, agriculture, and industrial activities.Again, in accordance with Rio Principle 10, publicparticipation includes public comment andaccountability of the final decision-makers.

22. The SEA Protocol not only covers typicalenvironmental effects of plans and programmes,but also places a special emphasis on humanhealth effects. This is the result of the participationof the World Health Organiszation (“WHO”)during the agreement’s negotiations, as well as thecommitments made at the 1999 LondonMinisterial Conference on Environment andHealth.

23. The SEA Protocol’s objective is to utilize StrategicEnvironmental Assessment-concepts to fullyintegrate environmental objectives intodevelopment plans and programmes in a mannerthat will support sustainable development andfurther environmental conservation. The 2003 SEAProtocol defines an SEA to be “The evaluation ofthe likely environmental, including health, effects,which comprises the determination of the scope ofan environmental report and its preparation, thecarrying-out of public participation andconsultations, and the taking into account of theenvironmental report and the results of the publicparticipation and consultations in a plan orprogramme”.

24. Article 4 of the SEA Protocol outlines thoseinstances in which an SEA must be undertaken.Articles 8, 9 and 10 of the SEA Protocol deal withpublic participation in the SEA process, which mustbe provided “early” in the project assessment andin a manner that is “timely and effective.” Publichealth officials and environmental authorities aresimilarly entitled to “early, timely and effective”submission of their opinions on the effects of aproposed project.

25. The 2003 SEA Protocol requires decisions on plansand programmes take due account of theconclusions of any EIA, as well as comments of thepublic, health and environmental officials and theaffected parties. A final project decision mustdisclose how environmental considerations were

taken into account and the rationale for theadoption of the plan or programme in light of theSEA.

26. Like the Espoo Convention, the 2003 SEA Protocolseeks to mitigate the effects of transboundarypollution, but focuses more on a parties domesticplans and programmes in the context of StrategicEnvironmental Assessment.


27. In general, countries that have adopted EIAlegislation and regulations provide for a multi-stepprocess that encourages public participation priorto any final decision. Countries with EIA legislationdiffer in delineating which party is responsible forthe preparation of the EIA. Some countries, likeKiribati and Uganda, allow to the developer of theproposed project to conduct the EIA. Brazil, on theother hand, requires that the statutory EIA isprepared by an independent third-party that doesnot have a stake in the proposed developmentproject.

1. Brazil

28. Brazil has two main pieces of legislationconcerning with EIA, including the Order ConamaNo. 1 Concerning Environmental ImpactAssessments of 1986 (“Brazil EIA Order”) and theResolution SMA-42 establishing the Procedures forthe Analysis of Environmental Impact Studies of1996 (“Brazil EIA Resolution”).

29. The Brazil EIA Order contains the statutorydefinitions relating to “environmental impacts”resulting from development, as well as thelicensing requirements of the regulated activities.The Brazil EIA Order is administered by the SEENV,the federal government’s licensing agency andcontains the scope of SEENV’s authority under theact.

30. The Brazil EIA Order also provides that a statutoryenvironmental impact study is to be executed by aqualified multidisciplinary team that isindependent from the project’s developer.Nevertheless, the developer must cover the costs ofboth the initial study and the final preparation ofthe Report on Environmental Impact Assessment(“REIA”). The Brazil EIA Order specifies the type ofinformation that must be included in the REIA.

31. The Brazil EIA Order vests SEENV with authority toapprove the REIA after a public notice andcomment period.

32. The Brazil EIA Resolution outlines the procedurefor determining when a proposed developmentproject requires an EIS and SEENV licence. Adeveloper of a proposed project must first submit apreliminary environmental report and a licencerequest. These materials are then published andopen to public comment. SEENV then eitherrequires or waives the submission of an EIS. IfSEENV requires an EIS, the developer of theproposed project prepares and submits a work planfor the EIS and undertakes a REIA. Upon approvalof the plan by SEENV, and after public notice andcomment, SEENV either grants or denies therequested development licence.

2. Uganda

33. Uganda’s basic EIA requirements are set forth in theNational Environment Statute of 1995 (“NationalEnvironmental Statute,” Chapter 153 of the Laws ofUganda) and are further elaborated upon in theEnvironmental Impact Assessment Regulations of1998 (“Uganda EIA Regulations”). In 1999,Uganda also issued the Environmental ImpactAssessment Public Hearing Guidelines (“PublicParticipation Guidelines”) that detail the publicnotice and comment process in relation to EIA.

34. The Uganda EIA Regulations provide the statutorydefinitions of “environmental impact assessment,”“environmental impact statement” and“environmental impact study.” The Uganda EIARegulations also outline the tasks of Uganda’sTechnical Committee on Environmental ImpactAssessment and list the development activities towhich the regulations apply.

35. As provided by the Uganda EIA Regulations, thedeveloper seeking regulatory approval must firstprovide a description of the proposed project to theLead Agency. Upon review of the project brief, theLead Agency then files comments on the brief withthe Executive Director, who has authority toapprove those projects that will not significantlynegatively affect the environment. If the proposedproject is expected to harm the environment, theExecutive Director will require the developer, inconsultation with the Lead Agency, to develop anEnvironmental Impact Study (“EIS”).

36. The Uganda EIA Regulations require that thedeveloper, in addition to undertaking the EIS withthe Lead Agency, identify entities that will beinvolved in any mitigation measures. Thedeveloper is also required to initiate and managethe public comment process.

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37. Once the developer completes the process aroundthe EIS, the Executive Director may issue an EIS asprescribed by the Uganda EIA Regulations. TheLead Agency, general public, and other interestedparties then have standing to provide comments onthe EIS. After appropriate consideration of anycomments, the Executive Director can eitherapprove or reject the project, or require thedeveloper to redesign the project or to providefurther information on its expected environmentalimpact.

3. Kiribati

38. Kiribati’s Environment Act of 1999 (“KiribatiEnvironment Act”) sets forth the country’s nationalEIA procedure. The Environment Act providesstatutory definitions of “environmental impactassessment” and “Environmental ImpactStatement” (“EIS”). The Kiribati Environment Actalso requires the relevant governmental ministerconsider the environmental impacts arising fromany development decision. For example, beforeany development project is undertaken, the lawrequires the responsible minister to consult with allrelevant parties to the decision.

39. Governmental ministers are also required todetermine whether an Initial EnvironmentalEvaluation Report (“IER”) or EIS is needed based onthe likely impact of the subject development

project on the environment. The KiribatiEnvironment Act outlines the information thatshould comprise an IER or EIS.

40. The Kiribati Environment Act provides for publicparticipation both during and after thedevelopment of an IER or EIS. While the finaldecision to proceed with a development project isthat of the relevant minister, the Environment Actdoes provide for some degree of governmentalaccountability.

41. The entity responsible for the development projectis also responsible for the costs and preparation ofan IER or EIS.

42. The Kiribati Environment Act contains somemonitoring and information gathering provisions,which are enforceable both during and afterproject development. The Act also containssanctions for developers acting in contravention ofthe Act.

Charles E. Di Leva, Chief Counsel, ESSD andInternational Law, The World Bank LegalDepartment

Eva Maria Duer, Associate Legal Officer, Divisionof Policy Development and Law,

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Resources

Text Materials

Alan Gilpin, ENVIRONMENTAL IMPACT ASSESSMENT: CUTTING EDGE FOR THE TWENTY-FIRST CENTURY, (Cambridge UniversityPress, 1995).

Christopher Wood, ENVIRONMENTAL IMPACT ASSESSMENT: A COMPARATIVE VIEW, HARLOW, ESSEX, ENGLAND: LONGMAN

SICENTIFIC AND TECHNICAL, (Wiley, 1995).

David B. Smith & Mieke van der Wansem (Eds.), STRENGHTENING EIA CAPACITY IN ASIA: ENVIRONMENTAL IMPACT

ASSESSMENT IN THE PHILIPPINES, INDONESIA AND SRI LANKA, (World Resources Institute, 1995).

Environmental Law Network International (Ed.), INTERNATIONAL ENVIRONMENTAL IMPACT ASSESSMENT: EUROPEAN AND

COMPARATIVE LAW AND PRACTICAL EXPERIENCE: CONTRIBUTIONS OF THE INTERNATIONAL CONFERENCE HELD IN MILAN IN

OCTOBER 1996, S.1.: CAMEROON, (May 1997).

Hubert Heinelt, et al. (Eds.), EUROPEAN UNION ENVIRONMENT POLICY AND NEW FORMS OF GOVERNANCE: A STUDY OF THE

IMPLEMENTATION OF THE ENVIRONMENTAL IMPACT ASSESSMENT DIRECTIVE AND THE ECO-MANAGEMENT AND AUDIT SCHEME

REGULATION IN THREE MEMBER STATES, (Ashgate, 2001).

Ian Thomas, ENVIRONMENTAL IMPACT ASSESSMENT IN AUSTRALIA: THEORY AND PRACTICE, (3d Ed., Federation Press, 2001).

Ray Clark & Larry Canter (Eds.), ENVIRONMENTAL POLICY AND NEPA: PAST, PRESENT AND FUTURE, (St. Lucie Press, 1997).

SLOVENIA, EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT, ENVIRONMENTAL IMPACT ASSESSMENT LEGISLATION;CZECH REPUBLIC, ESTONIA, HUNGARY, LATVIA, LITHUANIA, POLAND, SLOVAK REPUBLIC, LONDON, GRAHAM & TROTMAN/M.NIJHOFF FOR THE EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT (Eds.), (1994).

Prasad Modak & Asit K. Biswas (Eds.), CONDUCTING ENVIRONMENTAL IMPACT ASSESSMENT IN DEVELOPING COUNTRIES,TOKYO, (United Nations University Press, 1999).

Timo Koivurova, ENVIRONMENTAL IMPACT ASSESSMENT IN THE ARCTIC: A STUDY OF INTERNATIONAL LEGAL NORMS, (Ashgate,2002).

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HUMAN RIGHTS AND THE ENVIRONMENTChapter 22

22. HUMAN RIGHTS AND THE ENVIRONMENT

I. Introduction

1. General

1. More than two million annual deaths and billionsof cases of disease are attributed to pollution.Nearly half a billion of people, mainly women andchildren in poor rural areas, live in severelypolluted environments. Annually, 500 millionpremature deaths can be attributed to the highlevels of pollution in cities. It is estimated that thedeterioration of the ozone layer will lead to morethan 300,000 additional cases of skin cancer in theworld and 1.7 million cases of cataracts.

2. All over the world, people are experiencing theeffects of ecosystem decline, from water shortagesand fish kills to landslides on deforested slopes.Environmental degradation has adverse impact onthe quality of human life, and more specifically onthe full enjoyment of human rights. The victims ofenvironmental degradation typically belong tomore vulnerable sectors of society. Children, racialand ethnic minorities and the poor regularly carrya disproportionate burden of such abuse.

3. Indigenous peoples are particularly vulnerable toenvironmental threats, as they are often completelydependent on their immediate environment forsurvival. Indigenous cultures are often deeplyrooted in the belief that the spiritual world residesin nature. This worldview implies a deep respectfor the natural world and provides guidance on itsuse. Thus, degradation of environment andnational biodiversity severely threatens the lifestyleof indigenous peoples. Indigenous peoples notonly depend on their environment for food andshelter, but erosion of biodiversity goes hand inhand with vanishing of cultural diversity, such asthe disappearance of languages. More than half ofthe 6,000 languages currently spoken are unlikelyto survive this century. Thus, indigenous peopleshave a special need for protection when violationof their human rights results from irreparable harmto their environment and special consideration willbe given to their cause in this chapter.

4. Despite the interrelationship and the interactionbetween environmental issues and human rights,most organizations and governments have treated,until recently, human rights violations andenvironmental degradation as unrelated issues. Just

as human rights advocates have emphasized civiland political rights, environmentalists have tendedto focus primarily on natural resource preservationwithout addressing human impacts ofenvironmental abuse. In recent years, however, theright to a healthy environment has beenincreasingly acknowledged and the use of humanrights to further environmental objectives hasbecome widespread.

2. The Relationship between Human Rights andEnvironmental Law

5. Taking into account the strong factual relationshipbetween environmental degradation andimpairment of human rights, it is important toconsider how these two fields interrelate within thelaw. Is there a human right to a clean environmentor are environment and human rights bestprotected through different legal regimes?

6. Approaching environmental problems from ahuman rights point of view can have severaladvantages. In contrast to most areas ofinternational environmental law, the human rightssystem already provides for various courts,commissions and other bodies, where individualscan raise human rights and associatedenvironmental issues. Second, unlikeenvironmental considerations, human rights areless likely to be subordinated in bureaucraticdecision-making when they are compared to otherconsiderations such as development or fullemployment. Third, human rights can provideaccess to justice in a way that other regulations ortort law simply cannot. Also, concerned citizensand Non-Governmental Organizations (“NGOs”)are more likely to support general statements ofrights than a highly technical regulation expressedin complex legislation.

7. Many environmentalists argue for the recognitionof a specific environmental right based on thefundamental human needs for clean air and water,a stable climate system and, more generally, anenvironment conducive to human life and health.The right to a healthy environment does exist, infact, in the African and Inter-American humanrights systems, as will be discussed later in thischapter.

8. There are three main positions on theinterrelationship between human rights andenvironmental protection. The first position viewsenvironmental protection as a pre-requisite to theenjoyment of existing human rights and thus seeshuman rights obligations of states as including theduty to ensure the level of environmental

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HUMAN RIGHTS AND THE ENVIRONMENT Chapter 22

protection necessary to allow full exercise ofprotected rights. The second position sees certainhuman rights, especially rights of information,participation in governance, and the right to aremedy, as essential to good environmentaldecision-making. Thus, these human rights mustbe implemented in order to ensure environmentalprotection. The third position, now reflected innearly half the constitutions of the world and tworegional human rights instruments, sees the right toa safe, healthy and ecologically-balancedenvironment as an independent human right.However, this last approach is not accepted by allcountries and is not included in any global humanrights instrument at present.

9. Regardless of whether one favours a rights-basedapproach to environmental protection or not, thefield of human rights will remain vital forenvironmental protection and achievingsustainable development.

3. Human Rights Relevant to the Environment

10. There are several different ways to categorizehuman rights. One common method of listingrights is according to subject matter: civil, political,economic, social or cultural rights. Civil andpolitical rights include the right to life, the right toprivacy and home life, and the right to equality andnon-discrimination, all of which may be impactedby environmental conditions. Economic, socialand cultural rights lay down a minimum standardfor human living and well-being. Implementationof these rights above the level of basic needscharacteristically depends on the level ofeconomic development each country has reached.The right to health, the right to food and water, andthe right to an adequate standard of living haveserved as vehicles to further environmentalprotection when the fulfillment of the rights ishampered by environmental degradation.

11. Human rights can further be divided intosubstantive and procedural rights. From a humanrights perspective, the following substantive rightscan be affected by environmental degradation:

• The Right to Life is the most important andfundamental human right. In its broadenedscope it entails the right to health and wellbeing.

• The Right to Respect for Private and Family Lifeand Home has been successfully invokedagainst severe pollution within the EuropeanHuman Rights System.

• The Right to Use and Enjoy Property.

• The Right to a Decent Environment is expresslyrecognized by two regional human rightstreaties, namely the African (Banjul) Charter onHuman and Peoples’ Rights and the SanSalvador Protocol to the American Conventionon Human Rights.

• The Right to Self-Determination. • The Right to Cultural Expression and Right to

Religion.

The last two rights are particularly important toindigenous peoples.

12. Procedural rights are a critical complement tosubstantive rights. Procedural rights are enablingrights in that they make it possible for people tocontribute actively to the protection of theirenvironment. Procedural rights that further theenvironmental cause include:

• The Right to Information,• The Right to Participation, • The Right to Equal Protection and to be Free

from Discrimination, and• The Right to Judicial Remedy.

13. Human rights may also be categorized accordingto the scope of the protection afforded. Some rightsare deemed so fundamental that they may never besuspended whatever the national emergency. The"non-derogable" rights common to all human rightsinstruments are the right to life, the right to be freefrom torture, the right of non-discrimination andfreedom from slavery. Other rights are drafted inprecise terms without qualification or limitation,but they may be suspended when strictly requiredby the exigencies of a national emergencythreatening the life of the nation. A third categoryof rights is normally defined and its scope set forth,but it is accompanied by a "limitations" clausesetting forth the permissible grounds for the State toqualify the right or balance it against other publicinterests, including public order, health, safety,morality, or in some cases economic well-being.


1. Human Rights Instruments

14. On 10 December 1948, the General Assembly ofthe United Nations adopted and proclaimed theUniversal Declaration of Human Rights (“1948Universal Declaration”). The 30 articles of the1948 Universal Declaration proclaim in clear andsimple terms the fundamental rights which equallyapply to all human beings. Through its adoption,individuals became subjects of international law intheir own right.

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15. Within the United Nations, human rights activitiesare pursued by bodies under the authority of theUN Charter or established by human rights treaties.In addition, several specialized agencies of the UNhave important human rights functions, such as theInternational Labour Organization (“ILO”) and theUN High Commissioner for Refugees (“UNHCR”).The principal Charter-based bodies with a humanrights role are the Security Council, the GeneralAssembly, the Economic and Social Council(“ECOSOC”) and the Commission on HumanRights (“CHR”).

16. The Commission on Human Rights is a "functionalcommission" of ECOSOC. The CHR has becomeresponsible for monitoring existing internationalstandards, recommending new internationalhuman rights standards, investigating violations,submitting proposals for new programmes andpolicies related to human rights, providing advisoryand technical services to countries needingassistance in protecting human rights and pursuingother related objectives.

17. The 1948 Universal Declaration was followed in1966 by the adoption of two human rightscovenants. The first is the International Covenanton Civil and Political Rights (“1966 ICCPR”), whichdetails the basic civil and political rights ofindividuals and groups. Eighteen independentexperts on the UN Human Rights Committeesupervise state implementation of and compliancewith the 1966 ICCPR, primarily through a system ofstate reporting. The Committee may makecomments and recommendations to the stateindividually or issue General Comments to all stateparties. In this context, the Committee hasindicated that state obligations to protect the rightto life can require positive measures designed toreduce infant mortality and protect againstmalnutrition and epidemics, which clearlyimplicate environmental protection. If the state hasalso accepted the first Optional Protocol to the1966 ICCPR, the Human Rights Committee mayhear individual complaints against this state party.In such a case, the Committee found thatallegations of Canadian citizens that the storage ofradioactive waste near their homes threatened theright to life of present and future generations raised“serious issues with regard to the obligation ofstates parties to protect human life” even thoughthe case was declared inadmissible for formalreasons.

18. The second covenant is the International Covenanton Economic, Social and Cultural Rights, whichdescribes the basic economic, social, and culturalrights of individuals and groups. The Committee on

Economic, Social and Cultural Rights supervisesimplementation of this Covenant. In this context,Ukraine reported in 1995, on the environmentalsituation consequent to the explosion at theChernobyl nuclear reactor, with regard to the rightto life. Committee members may also requestspecific information about environmental harmthat threatens human rights. Poland, for example,was asked to provide information in 1989 aboutmeasures to combat pollution, especially in UpperSilesia. The Committee may pose questions andmake recommendations in response to the statereport. In 2000, the Committee issued GeneralComment No. 14 on “Substantive Issues arising inthe Implementation of the International Covenanton Economic, Social and Cultural Rights” (article12) Paragraph 4 states that “the right to healthembraces a wide range of socio-economic factorsthat promote conditions in which people can leada healthy life, and extends to the underlyingdeterminates of health, such as...a healthyenvironment.” It added that “any person or groupvictim of a violation of the right to health shouldhave access to effective judicial or otherappropriate remedies at both national andinternational levels and should be entitled toadequate reparation.”

19. Other important United Nations agreements onhuman rights are the UN Convention againstGenocide (1948), the Convention against Torture(1975) and the Convention on Elimination of allForms of Discrimination against Women (1979).The latter stipulates that state parties shall ensurewomen the right to “enjoy adequate livingconditions, particularly in relation to … watersupply...” The UN Convention on the Rights of theChild, adopted on 20 November 1989, is the mostwidely ratified human rights treaty with 192 parties(as of November 2005). It addresses the need forclean drinking water and the dangers and risks ofpollution, and requires parties to combat diseaseand malnutrition.

1. States Parties recognize the right of the child tothe enjoyment of the highest attainable standard ofhealth and to facilities for the treatment of illnessand rehabilitation of health. States Parties shallstrive to ensure that no child is deprived of his orher right of access to such health care services. (…)c) To combat disease and malnutrition, includingwithin the framework of primary health care,through, inter alia, the application of readilyavailable technology and through the provision ofadequate nutritious foods and clean drinking-water, taking into consideration the dangers andrisks of environmental pollution;(...)

United Nations Convention on the Rights of theChild (Article 24)

20. In 1994, an international group of experts onhuman rights and environmental protectionconvened at the United Nations in Geneva, anddrafted the first declaration of principles on humanrights and the environment. This Draft Declarationof Principles on Human Rights and theEnvironment (“1994 Draft Declaration”) wasincluded in the Final Report on Human Rights andthe Environment to the Sub-Commission onPrevention of Discrimination and Protection ofMinorities, which was issued by SpecialRapporteur Madam Ksentini in the same year.

21. The 1994 Draft Declaration is the first internationalinstrument that comprehensively addresses thelinkage between human rights and theenvironment. The Draft Declaration demonstratesthat accepted environmental and human rightsprinciples embody the right of everyone to asecure, healthy and ecologically soundenvironment.

22. On the question of whether a specificenvironmental right exists, the Report on HumanRights and the Environment further supports theintermediary position described above. The Reportconcludes that environmental rights are containedin and can be derived from existing human rightsinstruments of both a substantive and proceduralnature.

2. Environmental Law Instruments

23. Environmental law instruments that link theenvironment and human rights began to appear asearly as 1972, in the Stockholm Declaration onHuman Environment, which states that “Man hasthe fundamental right to freedom, equality andadequate conditions of life, in an environment ofquality that permits a life of dignity and wellbeing...”

24. In comparison, Principle 1 of the 1992 RioDeclaration on Environment and Developmentprovides that “Human beings are at the centre ofconcerns for sustainable development. They areentitled to a healthy and productive life in harmonywith nature.”

25. An important consensus reached at the Rio Summitin 1992 was that sustainable development andenvironmental protection cannot be achievedindependently from human development.

26. With regards to procedural rights, the 1982 WorldCharter for Nature was one of the first declarationsthat recognized the right of individuals toparticipate in decision making and to have access

to means of redress when their environment hadsuffered damage or degradation. Ten years later,Principle 10 of the 1992 Rio Declaration onEnvironment and Development stated the need forthese participatory rights:

Rio Declaration on Environment and Development

(Principle 10)

“Environmental issues are best handled with theparticipation of all concerned citizens, at therelevant level. At the national level, eachindividual shall have appropriate access toinformation concerning the environment that isheld by public authorities, including informationon hazardous materials and activities in theircommunities, and the opportunity to participate indecision-making processes. States shall facilitateand encourage public awareness and participationby making information widely available. Effectiveaccess to judicial and administrative proceedings,including redress and remedy, shall be provided.”

27. The Convention on Access to Information, PublicParticipation in Decision-Making and Access toJustice in Environmental Matters (“1998 AarhusConvention”) was adopted under the auspices ofthe United Nation Economic Commission forEurope (“UNECE”) in 1998. The AarhusConvention entered into force in 2001, and the firstMOP took place in 2002.

28. The Aarhus Convention builds on above citedPrinciple 10 of the Rio Declaration and onPrinciple 1 of the Stockholm Declaration. ThePreamble states that every person has the right tolive in an environment adequate to his or herhealth and well-being, and the duty, bothindividually and in association with others, toprotect and improve the environment for thebenefit of present and future generations.

29. The Aarhus Convention provides for acomprehensive right to public participation inenvironmental decision-making and a right ofaccess to environmental information. This rightincludes a right to request and obtain informationand an obligation upon states to collect anddisseminate information. The Aarhus Conventionalso provides for a right of access to the courts inenvironmental matters, ensuring that decisionsrelating to participation and access to informationmay be challenged. Another very important featureis the explicit assertion of the interests of Non-Governmental Organizations (“NGOs”). In mostcases, NGOs are entitled to participation indecisions making, to require disclosure ofinformation and to litigate.

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30. The WHO-UNECE Protocol on Water and Healthto the 1992 Convention on the Protection and Useof Transboundary Watercourses and InternationalLake touches upon the right to a healthyenvironment. The Protocol is the first majorinternational legal approach for the prevention,control and reduction of water-related diseases inEurope. Cleaner water and better sanitation couldprevent over 30 million cases of water relateddiseases in Europe alone.

3. The International Framework from anIndigenous Peoples’ Perspective

31. The survival of indigenous peoples depends uponthe integrity of their environment. One way inwhich environmental degradation violatesindigenous rights is through direct and indirectharm to the people and the resources that sustainthem. Yet destruction of the environment not onlyaffects indigenous peoples in their right to life,health and well being but also in their right to self-determination and right to cultural expression andright to religion.

32. Article 27 of the 1948 Universal Declaration andother instruments, such as article 13 of theAmerican Declaration of the Rights and Duties ofMan, contain articulations of the Right to Culture.In addition, article 27 of the 1966 InternationalCovenant on Civil and Political Rights states:

1966 International Covenant on Civil andPolitical Rights

(Article 27)

“In those States in which ethnic, religious or linguisticminorities exist, persons belonging to such minoritiesshall not be denied the right, in community with theother members of their group, to enjoy their ownculture, to profess and practise their own religion, orto use their own language.”

33. The ILO Convention concerning Indigenous andTribal Peoples in Independent Countries (“1989Tribal Peoples Convention”) calls for adoption ofspecial measures to protect and to preserve theenvironment of indigenous and tribal peoples. Itentered into force in 1991, and has been ratified by17 states (as of November 2005), mainly from LatinAmerica. The 1989 Tribal Peoples Conventioncontains numerous references to the lands,resources, and environment of indigenous peoples.

34. Article 2 of the 1989 Tribal People’s Conventionprovides that actions respecting indigenouspeoples shall be developed with the participationof the peoples concerned. In accordance witharticles 6 and 7, parties must consult indigenous

peoples and provide for their participation informulating national and regional developmentplans that may affect them. Environmental impactassessment must be done of planned developmentactivities with the cooperation of the peoplesconcerned, and “Governments shall takemeasures, in cooperation with the peoplesconcerned, to protect and preserve theenvironment of the territories they inhabit.” Rightsto remedies are provided in article 12. Part II of the1989 Tribal Peoples Convention addresses landissues, including the rights of the peoplesconcerned to the natural resources pertaining totheir lands. According to article 15, land rightsinclude “the right of these peoples to participate inthe use, management and conservation of theseresources.” Article 30 requires the governments tomake known to the peoples concerned their rightsand duties.

35. The United Nations Sub-Commission onPrevention of Discrimination and Protection ofMinorities adopted a Draft Declaration of theRights of the World’s Indigenous Peoples in 1994(“1994 Draft Declaration”), which it submitted tothe Commission on Human Rights for furtheraction. In 1995, the Commission decided toestablish an intergovernmental Working Group toreview the draft. The Working Group has becomean important center of indigenous rights activitiesin the United Nations.

36. According to article 12 of the 1994 DraftDeclaration:

1994 Draft Declaration of the Rights of the World’sIndigenous Peoples

(Article 12)

“Indigenous peoples have the right to practise andrevitalize their cultural traditions and customs. Thisincludes the right to maintain, protect and developthe past, present and future manifestations of theircultures, such as archaeological and historical sites,artifacts, designs, ceremonies, technologies andvisual and performing arts and literature, as well asthe right to restitution of cultural, intellectual,religious and spiritual property taken without theirfree and informed consent or in violation of theirlaws, traditions and customs."

37. Part VI of the 1994 Draft Declaration includes theright of indigenous peoples “to maintain andstrengthen their distinctive spiritual and materialrelationship with the lands, territories, waters andcoastal seas and other resources which they havetraditionally owned or otherwise occupied or used,and to uphold their responsibilities to future

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generations in this regard” (article 25). Specificprotection is also afforded to medicinal plants,animals and minerals. Indigenous peoples havethe right to special measures to control, developand protect their genetic resources, includingseeds, medicines, and knowledge of the propertiesof fauna and flora. Indigenous peoples are giventhe right to own, develop, control and use the totalenvironment of the lands, air, waters, coastal seas,sea-ice, flora and fauna and other resources, whichthey have traditionally owned or otherwiseoccupied or used. The 1994 Draft Declaration alsorequires restitution of or compensation for landstaken without free and informed consent. Article28 provides that “Indigenous peoples have the rightto the conservation, restoration and protection ofthe total environment and the production capacityof their lands, territories and resources....” Part V ofthe 1994 Draft Declaration contains proceduralrights, including the right of indigenous peoples tofully participate at all levels of decision-making inmatters which may affect them.

38. The UN General Assembly, in the context of theInternational Decade of the World’s IndigenousPeoples (1994-2004), noted that the goal of thisDecade is to strengthen international cooperationfor the solution of problems faced by indigenouspeoples in various areas, including theenvironment. The General Assembly has called forincreased participation of indigenous peoples inactivities for the decade. In 2001, the UN HumanRights Commission appointed a special rapporteuron the situation of human rights and fundamentalfreedoms of indigenous peoples. The rapporteur’smandate includes receiving communications onviolations of human rights.

39. The chapter of Agenda 21 on indigenouspopulations mentions existing treaties and the draftuniversal declaration on indigenous rights. Itprovides that indigenous people and theircommunities "...may require, in accordance withnational legislation, greater control over their lands,self-management of their resources, participation indevelopment decisions affecting them, including,where appropriate, participation in theestablishment or management of protected areas..."It makes no reference to the fact that the 1989Tribal Peoples Convention contains environmentalrights for the indigenous peoples, requiring statesparties to take special measures to safeguard theenvironment of indigenous peoples (article 4).

40. As demonstrated below, the case law of the Inter-American human rights system has contributedconsiderably to recognizing the rights ofindigenous peoples in respect to theirenvironmental and natural resources.

III. Regional Human Rights Systems

1. The European Convention on Human Rights

41. The Council of Europe, a regionalintergovernmental organization, adopted theEuropean Convention on the Protection of HumanRights and Fundamental Freedoms (“1950 ECHR”)in 1950, which entered into force in 1953, to giveeffect to some of the civil and political rightscontained in the 1948 Universal Declaration ofHuman Rights. In 1961, the Council adopted acompanion treaty for economic and social rights,the European Social Charter. Both treaties havebeen revised numerous times. The 1950 ECHRestablished a European Commission on HumanRights, which ceased to exist with the proceduralreforms of 1998, and the European Court ofHuman Rights. Individuals and groups who claimto be victims of violations of rights in the 1950ECHR can file cases at the European Court afterexhausting all domestic remedies. Inter-State casescan also be filed. The European Social Charter hasits own supervisory institutions, which in limitedcircumstances may hear complaints from certaingroups. It does not have an individual complaintmechanism.

42. The 1950 ECHR does not contain any specificrights to a clean environment. Likewise, theEuropean Social Charter does not contain any rightto environmental quality and the former EuropeanCommission on Human Rights held that such aright cannot be directly inferred from the 1950ECHR.

43. A similar approach to the environment was takenby the European Union at its Nice Summit. TheCharter of Fundamental Rights of the EuropeanUnion, adopted during the Summit on 7 December2000, omits environmental protection from itslisted rights of persons and duties of member states.The Charter simply provides in article 37 that “Ahigh level of environmental protection and theimprovement of the quality of the environmentmust be integrated into the policies of the Unionand ensured in accordance with the principle ofsustainable development.”

44. However, the European Court of Human Rights hasconsidered environmental issues in relation toother provisions of the 1950 ECHR, including:

• Article 2 (right to life); • Article 3 (prohibition of torture and degrading

treatment); • Article 5 (right to liberty and security as a

person);

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• Article 6 (right of tribunal);• Article 8 (right to privacy);• Article 11 (right to freedom and peaceful

assembly); and• Article 1 of the First Protocol (peaceful

enjoyment of possessions).

45. One of the most important cases under the 1950ECHR was Lopez-Ostra vs. Spain (1994).

46. Ms. Ostra’s flat in Lorca, Spain was situated within12 meters of a waste disposal plant. She allegedthat the plant emitted fumes, noise and smell thatmade her family’s living conditions intolerable andcaused her and her family serious health problems.Expert evidence stated that hydrogen sulfideemissions from the plant exceeded the permittedlimit and could endanger the health of those livingnearby. This supported the contention that therecould be a causal link between these emissionsand the applicant’s daughter’s illness.

47. The Court applied a test based on article 8 of theECHR, the right to privacy, which attempts tobalance competing interests of individuals againstthose of the community as a whole. The Courtfurther stated that severe environmental pollution,even without causing serious damage to health,could affect the well being of individuals andimpede their enjoyment of their homes in such amanner as to have an adverse effect on their privateand family life.

48. The Court found that Spain has not fulfilled its dutyto take reasonable and appropriate measures tosecure the applicant’s rights. This notion is mostvaluable since it poses an obligation on the state tonot only refrain from interfering but to activelyprotect human rights. The Court concluded that thestate did not strike a proper balance as between theindividual and public interests, in other wordsbetween private well being and general economicconcerns and that Spain had violated article 8 ofthe ECHR.

49. The Court stated that the state had a positive dutyto take reasonable and appropriate measures tosecure the applicants’ rights under article 8 and tostrike a fair balance between the competinginterests of the individual and of the community asa whole. In the particularly sensitive field ofenvironmental protection, mere reference to theeconomic well being of the country was notsufficient to outweigh the rights of others.

50. In a subsequent case, Maria Guerra v. Italy (1998),the Court reaffirmed that article 8 can imposepositive obligations on states to ensure respect for

private or family life. Citing the Lopez Ostra case,the Court reiterated that “severe environmentalpollution may affect individuals’ well-being andprevent them from enjoying their homes in such away as to affect their private and family life.”

51. Other important ECHR cases are Arrondelle v.United Kingdom, Powell & Raynor v. UnitedKingdom, Hatton and Others v. United Kingdom,Chapman v. United Kingdom.

2. The Inter-American Human Rights System

52. The Inter-American System of Human Rightsconsists of general and specialized human rightsinstruments. The basic texts are:

• The Charter of the Organization of AmericanStates (“OAS”),

• The American Declaration of the Rights andDuties of Man (1948), and

• The American Convention on Human Rights(1969) with its two Protocols.

53. The American Convention on Human Rights(“1969 American Convention”) has been ratifiedby 25 countries, predominantly in Latin America.For states that are not party to the Convention, therights in the American Declaration of the Right andDuties of Man (“1948 American Declaration”)provide the basic standards they are expected touphold. The Inter-American Human Rights Systemuses a Commission and a Court (for states that areparty to the Convention and accept its jurisdiction)to protect and promote human rights. TheCommission can hear individual petitions andconduct country studies to investigate widespreadhuman rights abuses. The Commission also canrefer cases to the Court.

54. The 1948 American Declaration, as the principalnormative instrument of the system, and the 1969American Convention, provide a series ofindividual rights particularly relevant toenvironmental issues. The Preamble of the 1948American Declaration states:

1948 American Declaration of the Right andDuties of Man

“All men are born free and equal, in dignity and inrights, and, being endowed by nature with reason andconscience, they should conduct themselves asbrothers one to another. (...)Since culture is the highest social and historicalexpression of …spiritual development, it is the duty ofman to preserve, practice and foster culture by everymeans within his power. (...)”

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55. The Commission and the Court may also applyspecial international instruments ascomplementary provisions, as for instance the1969 Tribal Peoples Convention.

56. The principal organ of the system is the Inter-American Commission on Human Rights, whichplays a unique role in assisting the member statesin their efforts to respect and ensure the rights of theindividuals subject to their jurisdiction. Among itsmany functions, the Commission promotesawareness of human rights, provides memberstates with advisory services in this field andmonitors the situation of human rights in eachmember states carrying out on-site observations.The Commission acts in individual petitionsalleging human rights violations, prepares studiesand reports and makes recommendations to OASmember states for the adoption of progressivemeasures promoting human rights.

57. Any person or group can file a petition alleging theviolation of the 1969 American Convention by astate party or the 1948 American Declaration by anOAS member state. The identity of the petitionermay be kept in confidence. The alleged victimsmust have exhausted all available domesticremedies, the petition has to be submitted in atimely manner and should not represent acomplaint that essentially duplicates a petitionpending or previously settled.

58. The Inter-American Human Rights Court hasjurisdiction to hear contentious cases submitted bythe Commission or States accepting its jurisdiction.The Court also can render advisory opinions.Beyond submitting to the General Assembly of theOAS a report specifying which states have notcomplied with its judgments, the Court has noenforcement mechanisms.

59. With respect to the cause of indigenous peoples,the 1969 American Convention protects minoritiesand prohibits discrimination against them. Article24 requires all persons to be regarded as equalbefore the law and be accorded equal protection ofthe law. This is reinforced by the obligation (inarticle 1.1) to respect and ensure guarantees“without any discrimination for reasons of race,color, sex, language, religions, political or otheropinion, national or social origin, economic status,birth or any other social condition.”

60. When indigenous representatives complained thatprocesses against indigenous defendants wereconducted in Spanish and that translation was notprovided for those who understood only theirnative language, the Inter-American Commission

expressed its expectation that the recognition ofindigenous languages in their areas of use willensure translation in every case required. Thisshould come through amendments to theConstitution.

61. The case law of the Inter-American human rightssystem has contributed considerably to recognizingthe rights of indigenous peoples in respect to theirenvironmental and natural resources. The case ofAwas Tingni Mayagna (Sumo) IndigenousCommunity v. Nicaragua involved the protectionof Nicaraguan forests in lands traditionally ownedby the Awas Tingni. The case originated as anaction against government-sponsored logging oftimber on native lands by Sol del Caribe, S.A.(SOLCARSA), a subsidiary of the Korean companyKumkyung Co. Ltd.. The government grantedSOLCARSA a logging concession withoutconsulting the Awas Tingni community, althoughthe government had agreed to consult them after togranting an earlier concession. The Awas Tingifiled a case at the Inter-American Commission,alleging that the government violated their rights tocultural integrity, religion, equal protection andparticipation in government.

62. The Commission found in 1998 that thegovernment had violated the human rights of theAwas Tingni and brought the case before the Court.On 31 August 2001, the Court issued its judgmenton the merits and reparations, deciding by sevenvotes to one that the state violated the 1969American Convention’s right to judicial protection(article 25) and the right to property (article 21).The Court unanimously declared that the statemust adopt domestic laws, administrativeregulations and other necessary means to createeffective surveying, demarcating and titlemechanisms for the properties of the indigenouscommunities, in accordance with customary lawand indigenous values, uses and customs. Pendingthe demarcation of the indigenous lands, the statemust abstain from realizing acts or allowing therealization of acts by its agents or third parties thatcould affect the existence, value, use or enjoymentof those properties located in the Awas Tingnilands. The Court also declared that the state mustinvest U.S. $50,000 in public works and services ofcollective benefit to the Awas Tingni as a form ofreparations for non-material injury and U.S.$30,000 for legal fees and expenses.

63. The Additional Protocol to the AmericanConvention in the area of Economic Social andCultural Rights (“Additional Protocol”) was signedin San Salvador in 1988, and entered into force 10years later. The Additional Protocol’s article 11 is

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highly relevant to the environment, and states that“1. Everyone shall have the right to live in a healthyenvironment and to have access to basic publicservices. 2. The State Parties shall promote theprotection, preservation, and improvement of theenvironment.”

64. The Additional Protocol sets out a series of usefuland enforceable obligations, but it does not allowindividual petitions to be filed concerning article11. Thus, the main function of the Commissionregarding this right will be to review the statereports that are filed concerning implementationand compliance.

3. The African Human Rights System

65. Africa has the youngest of the regional HumanRights systems. The African (Banjul) Charter ofHuman and Peoples’ Rights (“1981 AfricanCharter”) was adopted by the Organization ofAfrican Unity (“OAU”) and entered into force in1986. The 1981 African Charter enumerates thetraditional list of civil and political rights, but alsoincludes economic, social and cultural rights andwas the first to include a right to environment.

66. Article 24 of the 1981 African Charter states that“All peoples shall have the right to a generalsatisfactory environment favorable to theirdevelopment.”

67. The current system consists of a Commissionalone, whose role is to promote and monitorhuman rights in member states by researchingspecific situations, organizing seminars, givingrecommendations to states, laying out humanrights principles and cooperating with otherinternational organizations. The Commission alsohears individual complaints.

68. The African Commission on Human and Peoples’Rights was the first international human rights bodyto decide a contentious case involving violation ofthe right to a general satisfactory environment on27 May 2002. The case is a landmark not only inthis respect, but also in the Commission’sarticulation of the duties of governments in Africato monitor and control the activities ofmultinational corporations. Acting on a petitionfiled by two Non-Governmental Organizations onbehalf of the people of Ogoniland, Nigeria, theAfrican Commission found that Nigeria hadbreached its obligations to respect, protect,promote, and fulfill rights guaranteed by the 1981African Charter.

69. The Communication alleged that the militarygovernment of Nigeria was involved in oil

production through NNPC in consortium withSPDC, and that the operations producedcontamination causing environmental degradationand health problems. The Communication alsoalleged that the consortium disposed of toxicwastes in violation of applicable internationalenvironmental standards and caused numerousavoidable spills near villages, consequentlypoisoning much of the region’s soil and water, andthat the government aided these violations byplacing the state’s legal and military powers at thedisposal of the oil companies.

70. After finding the petition admissible, theCommission acknowledged four separate butoverlapping duties with respect to guaranteedrights: to respect, protect, promote, and fulfill them.These obligations universally apply to all rights andentail a combination of negative and positiveduties. Assessing the claimed violations of therights to health under article 16 and to a generalsatisfactory environment under article 24, theCommission found that the right to a generalsatisfactory environment imposes clear obligationsupon a government, requiring the state to takereasonable and other measures to prevent pollutionand ecological degradation, to promoteconservation, and to secure an ecologicallysustainable development and use of naturalresources. Applying these obligations to the facts ofthe case, the Commission concluded that althoughNigeria had the right to produce oil, the state hadnot protected the articles 16 and 24 rights of thosein the Ogoni region.

71. The suggestion of a broadly justiciable right toenvironment is reinforced by the Commission’sfinal comment that all rights in the 1981 AfricanCharter may be applied and enforced. TheCommission gives the right to environmentmeaningful content by requiring states to adoptvarious techniques of environmental protection,such as environmental impact assessment, publicinformation and participation, access to justice forenvironmental harm, and monitoring of potentiallyharmful activities. The result offers a blueprint formerging environmental protection, economicdevelopment and guarantees of human rights.

IV. National Implementation:

National Legislation/Judicial Decisions

72. The Supreme Court of the Philippines hasproduced a ruling of utmost importance on humanrights that furthered environmental objectives.Therefore the section on application of humanrights in the Philippines will mainly focus on thisruling. The discussions of the employment of

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human rights in the sections on India and SouthAfrica will then focus on how specific human rightsrelevant to environment have been implemented inthe national legal systems and interpreted by thenational courts.

1. Philippines

73. The Minors Oposa v. Secretary of the Departmentof Environment and Natural Resoures (1993) caseis based upon a substantive procedural right to aclean environment contained in article II, Section16, or the Philippine Constitution, which states that“The State shall protect and advance the right of thepeople to a balanced and healthful ecology inaccord with the rhythm and harmony of nature.”

74. The plaintiffs were a number of minors togetherwith the Philippine Ecological Network, a non-profit organization. After their claim was dismissedat the first instance, the plaintiffs petitioned theSupreme Court to reverse that ruling. The SupremeCourt reversed the ruling and the case returned tothe lower court.

75. On the question of standing, the Supreme Courtpoints out that the fact that some of the plaintiffs areminors adds a novel element. The minors representtheir generation as well as generations yet unbornand can file a class suit. The Supreme Court stated:

“Their personality to sue on behalf of the succeedinggeneration can only be based on the concept ofintergenerational responsibility insofar as the right toa balanced and healthful ecology is concerned. (…)Needless to say, every generation has aresponsibility to the next to preserve that rhythm andharmony for the full enjoyment of a balanced andhealthful ecology.”

76. The Supreme Court based its judgment on twopillars, the human right to a clean environment asenshrined in the Constitution and the concept ofintergenerational equity. The case containsfundamental statements on the issue ofintergenerational equity and responsibility. TheCourt stated:

“While the right to a balanced and healthful ecologyis to be found under the Declaration of Principlesand State Policies and not under Bill of Rights, it doesnot follow that it is less important than any of thecivil and political rights enumerated in the latter.Such a right belongs to a different category of rightsaltogether for it concerns nothing less the self-preservation and self-perpetuation aptly and fittinglystressed by the petitioners, the advancement ofwhich may even be said to predate all governmentsand constitutions.

As a matter of fact, these basic rights need not evenbe written in the Constitution for they are assumed toexist from the inception of humankind.”

77. It is most significant that the Supreme Court statesthat the right to a sound environment is a self-executing constitutional policy. By itself,independent of specific statutory right, this right isactionable against the Secretary of the Departmentof Environment and Natural Resources.

2. India

a) The Right to Life

78. The right to life has been employed in a diversifiedmanner in India. It includes, among other things,the right to survive as a species, quality of life, theright to live with dignity and the right to livelihood.Article 21 of the Indian Constitution states: “Noperson shall be deprived of his life or personalliberty except according to procedure establishedby law”.

79. In its jurisprudence, the Supreme Court interpretedthe right to life guaranteed by article 21 of theConstitution to include the right to a wholesomeenvironment. In Subash Kumar (1991), the Courtobserved that the “right to life guaranteed by Article21 includes the right of enjoyment of pollution-freewater and air for full enjoyment of life”. This wasreaffirmed in M.C. Mehta v. Union of India (1998).The case concerned the deterioration of the worldenvironment and the duty of the State government,under article 21, to ensure a better quality ofenvironment. The Supreme Court ordered theCentral Government to show the steps they havetaken to achieve this goal through national policyand to restore the quality of environment.

b) Equality before the Law

80. The Constitution of India provides that all are equalbefore the law and shall be accorded equalprotection of the law. Article 14 states that “TheState shall not deny to any person equality beforethe law or the equal protection of the laws withinthe territory of India.”

81. Urban environmental groups frequently resort toarticle 14 to quash ‘arbitrary’ municipalpermissions for construction that are contrary todevelopment regulations. Article 14 can be used tochallenge government sanctions for mining andother activities with high human rights andenvironmental impact, where the permissions arearbitrarily granted without adequate considerationof environmental impacts.

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c) The Right to Property

82. In India, the right to property was formally removedfrom the fundamental rights in 1979. This right isnow protected by article 300A of the IndianConstitution and does not have the sameprocedural advantages as other fundamental rights.This amendment was created in response tomultiple lawsuits brought against differentgovernment agencies by indigenous peoples whowere being evicted from their property as theirlands were being used for other developmentprojects.

d) Environmental Laws and Policies

83. Indian national legislation is sectoral; therefore,human rights and the environment are dealt withby separate legislation. However, frameworkenvironmental legislation in recent years tookaccount of human health and safety aspect andsustainable development. The generalenvironmental framework laws tend to be enablingin nature, and mainly charge a competent nationalauthority to provide more specific guidelines andregulations in future.

84. The Constitution Act of 1976 (Forty SecondAmendment) explicitly incorporatedenvironmental protection and improvement as apart of state policy. Article 48A provides that “[t]hestate shall endeavor to protect and improve theenvironment and safeguard the forests and wildlifeof the country.” Article 51A(g) imposes a similarresponsibility on every citizen “to protect andimprove the natural environment including forests,lakes, rivers and wildlife, and to have compassionfor living creatures....” Thus, protection of naturalenvironment and compassion for living creatureswere made the positive fundamental duty of everycitizen.

e) Procedural Rights

85. There are several regulations guiding theprocedures of environmental impact assessment.Some provisions in the framework legislation dealwith access to environmental information.Provisions for complaints from “any person” underenvironment legislation and Asian DevelopmentBank-Funded Projects show increased publicparticipation in decision-making. However, there isno general duty on the state to collectenvironmental information. With regard to accessto justice and standing in Court, the Indian HighCourts moved from the “aggrieved person” test tothe “sufficient interest” test in the early 1970’s.

f) Right to Remedy

86. The Indian courts have made several directions onpayment of compensation for damage andpayment of costs required for the remedialmeasures. The courts ordered the relevant Ministryto adopt necessary measures in order to broadcastinformation relating to environment in the media.The courts also drew the Government’s attention toareas where legislation was necessary andestablished a committee to monitor the directionsof the court.

3. South Africa

87. The Constitution of the Republic of South Africawas approved by the Constitutional Assembly onMay 1996, and took effect on 4 February 1997.South Africa's Constitution is one of the mostprogressive in the world, and enjoys highinternational acclaim. The Preamble of theConstitution states that the aims of the Constitutionare to:

• Heal the divisions of the past and establish asociety based on democratic values, socialjustice and fundamental human rights;

• Improve the quality of life of all citizens and freethe potential of each person;

• Lay the foundations for a democratic and opensociety in which government is based on thewill of the people and every citizen is equallyprotected by law; and

• Build a united and democratic South Africa ableto take its rightful place as a sovereign State inthe family of nations.

88. Fundamental rights are contained in Chapter Twoof the South African Constitution and seek toprotect the rights and freedoms of individuals. TheConstitutional Court guards these rights anddetermines whether or not actions by the state arein accordance with constitutional provisions.

a) Right to Life

89. Section 11 of Chapter 2 of the South AfricanConstitution deals with the right to life, anonderogable right. Under Section 24 of Chapter 2of the South African Constitution, everyone has the“right to an environment that is not harmful tohealth or well-being...”. Section 24 adds that thegovernment must act reasonably to protect theenvironment by preventing pollution andecological degradation, promoting conservation,and securing ecologically sustainabledevelopment, while building the economy andsociety.

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90. Under the South African Constitution, the state hasa duty to protect, promote, respect and fulfill socio-economic rights. Section 24 demonstrates that theright to a healthy environment is part of the socio-economic right of South Africa. This right is oftenapplied by the courts to give a meaningfulinterpretation to the right to life. Section 27(1)(b) ofChapter 2 of the Constitution guarantees the rightof everyone to have access to sufficient food andwater. Section 28(1)(c) of the Constitution alsogives children the right to basic nutrition. Theenvironmental rights protected under the SouthAfrican Constitution are closely related to the rightof access to sufficient water and place duties on thestate to prevent pollution and ensure conservationof water resources. One of the central goals of theGovernment's water policy is to ensure equitableaccess by all South African's to the nation's waterresources and to end discrimination in access towater on the basis of race, class or gender.

b) Equality before the Law

91. Section 9(2) of Chapter 2 of the South AfricanConstitution deals with right to equality. TheConstitution defines equality to include the “fulland equal enjoyment of rights and freedoms”. Thestate may take steps to protect or advanceindividuals or groups that have been disadvantagedby unfair discrimination with the aim of promotingthe achievement of equality.

c) Right to Property

92. Section 25 of Chapter 2 of the South AfricanConstitution, which deals with the right to property,including land rights, aims to protect anindividual's property rights and to promote landreform. This right is still a hotly debated issue dueto the property imbalances in South Africa after theapartheid. Under Section 25(1), the property rightsmay not be interfered with unless it is done undera “law of general application.” Therefore, itprotects the property rights of named or easilyidentifiable individuals or groups. Section 25(1)also prohibits the arbitrary deprivation of property.The Interim Protection of Informal Land Rights Act(1996) allows for the protection of certain rights toand interests in land, where they are not properlyprotected by law. Informal rights to land mean theuse, occupation or access to land following the

practice of a tribe or indigenous law. No person orcommunity may be deprived of this land rightwithout consent. Appropriate compensation mustbe paid if the person or community is deprived ofland.

93. With regard to access to justice and standing inCourt, Section 38 of Chapter 2 of the Constitutionprovides that persons who may approach a courtcan be:

• Anyone acting in their own interest; • Anyone acting on behalf of another person who

cannot act in their own name; • Anyone acting as a member of, or in the interest

of, a group or a class of persons; • Anyone acting in the public interest; or • An association acting in the interest of its

members.

94. Section 32 deals with right of access to informationand Section 33 deals with right to a justadministrative action. Section 32 can be used bycommunity groups to find out more about harmfulindustrial development, which will have adetrimental effect on their life and well-being.These rights are not absolute and may be limited ifthe limitation is reasonable and justifiable in ademocratic society based upon human dignity,equality and freedom (Section 36 of the SouthAfrican Constitution).

95. The National Environment Management Act 1998(“NEMA”), amongst other things, requires that thepublic must be actively involved when decisionsare made that affect the environment. NEMA alsoobliges the government to examine allenvironmental impacts before going ahead withany development.

96. The Promotion of Access to Information Act (2000)further outlines which information would beavailable and how to submit information requestsfrom the government and from private individuals.There are also regulations under the EnvironmentalConservation Act (1989) providing for impactassessments for certain activities. Moreover,women and other vulnerable and disadvantagedgroups must be encouraged to get involved indecisions about their environment.

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97. In its jurisprudence, the Supreme Court promotesthe notion of public participation. In “The Director,Mineral Development Gauteng Region and SasolMining (pty) Ltd v. Save the Vaal Environment andOthers (1994)”, the Supreme Court of Appeal heldthat before a permit is given for mining, thegovernment must be prepared to listen to the viewsof people concerned with potential environmentalimpacts. The types of environmental concerns thatcan be raised include destruction of plants andanimals, pollution, loss of jobs and smallbusinesses and property values.

Prof. Dinah L. Shelton, Patricia Roberts HarrisProfessor of Law, George Washington UniversityLaw School


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Resources

Internet Materials

EUROPEAN COURT OF HUMAN RIGHTS available at http://www.echr.coe.int/Eng/General.htm

INTER-AMERICAN COMMISSION ON HUMAN RIGHTS available at http://www.cidh.oas.org

Text Materials

Antonio G.M. La Vina, THE RIGHT TO A SOUND ENVIRONMENT IN THE PHILIPPINES: THE SIGNIFICANCE OF THE MINORS OPOSA

CASE, (RECIEL Vol. 3 No. 4, 1994).

BACKGROUND PAPERS 1-6 TO THE JOINT UNEP-OHCHR EXPERT SEMINAR ON HUMAN RIGHTS AND THE ENVIRONMENT, (14-16January 2002, Geneva).

CASE OF HATTON AND OTHERS V. THE UNITED KINGDOM, (decided 2 October 2001).

David Hunter, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY, CHAPTER 16, (Foundation Press, 2002).

Guenter, Handl, Eide, Krause & Rosas (Eds.), HUMAN RIGHTS AND PROTECTION OF THE ENVIRONMENT, ECONOMIC, SOCIAL

AND CULTURAL RIGHTS, (2001).

Kate Cook, ENVIRONMENTAL RIGHTS AS HUMAN RIGHTS, (EHRLR Issue 3, Sweet & Maxwell Ltd., 2002).

Kiss & Shelton, INTERNATIONAL ENVIRONMENTAL LAW, (3rd ed. Transnational Press, 2004).Malgosia Fitzmaurice, THE RIGHT OF THE CHILD TO A CLEAN ENVIRONMENT, (So. Ill. Univ. L. J., Vol. 23 No. 3, Spring1999).

Margaret de Merieux, DERIVING ENVIRONMENTAL RIGHTS FORM THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN

RIGHTS AND FUNDAMENTAL FREEDOMS, (Oxford J. of Legal Studies, Vol. 21 No. 3, 2001).

Philippe Sands, HUMAN RIGHTS, ENVIRONMENT AND THE LOPEZ-OSTRA CASE: CONTEXT AND CONSEQUENCES, (EHRLR Issue6, Sweet & Maxwell Ltd., 1996).

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INTERNATIONAL LABOUR, HEALTH AND THE ENVIRONMENT

Chapter 23

23. INTERNATIONAL LABOUR, HEALTH AND THE ENVIRONMENT

I. Introduction

1. According to the International LabourOrganization (“ILO”), approximately 1.2 millionpeople die each year as a result of occupationalaccidents and work-related diseases. The ILOestimates that workers suffer from 250 millionoccupational accidents and from 160 millionoccupational diseases each year. Deaths andinjuries take a particularly heavy toll in developingcountries, where large numbers of workers areconcentrated in some of the world’s mosthazardous industries.

2. This social and economic burden is not evenlydistributed among countries. For example, fatalityrates in some European countries are twice as highas in some others, and in parts of the Middle Eastand Asia fatality rates soar to four times greater thanthose in the industrialized countries. Certainhazardous jobs can increase the risk of workplaceaccidents or death by 10 to 100 times. Similarly,insurance coverage for occupational safety andhealth varies widely in different parts of the world:workers in Nordic countries enjoy nearly universalcoverage while only 10% or less of the workforcein many developing countries is likely to enjoy anysort of coverage.

3. Clearly, workplace health is a global concern.Accordingly, in addition to internationalagreements setting forth rules and regulations thatapply specifically to environmental issues,international conventions have also establishedstandards and procedures to safeguard humanhealth within the workplace environment. Inaddition to UNEP, the primary international bodiesactive in this area are the ILO and the World HealthOrganization (“WHO”). Although the conventions,recommendations and strategies of the ILO and theWHO cover a variety of labour-related topics,many of them are specifically intended tosafeguard workplace health and safety and areapplicable in the absence of specificenvironmental instruments. The primary objectivesof the ILO and the WHO in this area are to createglobal awareness of the dimensions andconsequences of work-related accidents, injuriesand diseases, to promote the goal of basicprotection for all workers in conformity with

international labour standards, and to enhance thecapacity of their member states to design and toimplement effective preventive and protectivepolicies and programme.

4. The world’s workplaces contain hazards to thehealth and safety of employees and theenvironment. Consequently many countries areaddressing these hazards with the assistance of theILO and the WHO, whose conventions andrecommendations provide a basis for legislativeaction at the national level. Further, theestablishment of collaborative programmes withthe ILO and the WHO provides countries withaccess to technical and scientific expertise thatallows them to better provide for worker health andsafety. Overall, the ILO and the WHO can helpimprove occupational health, safety and theenvironments of their member states.

5. This chapter discusses hazards in the workplaceand introduces the initiatives that the ILO and theWHO have undertaken to address those problems.This chapter also presents examples of nationallegislation developed and adopted by China, SouthAfrica and Kenya to provide for healthy workplaceenvironments.


1. The Problem

6. About 45% of the world’s total population and58% of the population over ten years of age belongto the global workforce whose efforts sustain theeconomic basis of society. However, theworkplace is a hazardous environment. Healthhazards, accidents, disease, and unsafe workingconditions put workers at risk. The health and thewell-being of working people are fundamentalprerequisites for productivity and are crucial foroverall socioeconomic and sustainabledevelopment.

7. Workplace health and safety hazards are commonin many economic sectors and affect largenumbers of workers. According to the WHO,approximately 30% to 50% of workers reporthazardous physical, chemical or biologicalexposures, or overload of unreasonably heavyphysical work or ergonomic factors. An equalnumber of working people report psychologicaloverload at work resulting in stress. Manyindividuals spend one-third of their adult life insuch hazardous work environments. About 120million workplace accidents resulting in some200,000 fatalities are estimated to occur annually

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and up to 157 million new cases of occupationaldisease may be caused by various exposures atwork.

8. The United Nations estimates that only 5% to 10%of workers in developing countries have access toworkplace health services. With approximately 80% of the world’s workers residing in thesecountries, the need for a focus on occupationalhealth is acute. According to the principles of theUN, the WHO and the ILO, every citizen has aright to healthy and safe work and to a workenvironment that enables him or her to live aproductive life.

9. There are several benefits to creating healthy workenvironments. Proper attention to workplacehealth and safety results in more productiveworkers who can raise healthy families and worktheir way out of poverty. Safe workplacescontribute to sustainable development bycontrolling pollution and reducing hazards fromindustrial processes.

10. Workplace health and safety can also contribute toimproving the employability of workers, throughworker training, assessment of work demands,medical diagnosis, health screening andassessment of functional capacities. Finally,workplace health is fundamental to public health,for it is increasingly clear that major diseases, suchas HIV/AIDS, heart disease and others, requireworkplace programmes as part of a country’soverall disease control strategy.

2. International Regulatory Bodies

11. The ILO and the WHO have established rules,regulations, standards and procedures to safeguardhuman health within the workplace environment.Both the ILO and the WHO promulgate standardsthat act as global models for workplace rights andresponsibilities. As such, it is the obligation ofmember states to realize those standards as far aspossible and the missions of the ILO and the WHOare to promote their realization. Once adopted,international labour standards are intended to beimplemented and conventions ratified by themember states. The ILO and the WHO intend thatinternational labour standards be systematicallyused as a guide in the design and implementationof labour and social policy at the national level.

12. The ILO was created in 1919, primarily for thepurpose of adopting international standards tocope with the problem of labour conditionsinvolving “injustice, hardship and privation”. Withthe incorporation of the Declaration of

Philadelphia into its Constitution in 1944, theOrganisation’s standard setting mandate wasbroadened to include more general, but related,social policy, human and civil rights matters.International labour standards are essentiallyexpressions of international tripartite agreement onthese matters. The ILO has 178 member countries(as of November 2005), and has adopted morethan 180 Conventions and 185 Recommendationscovering a broad range of workplace-relatedtopics.

13. The WHO was established in 1948, as the UN’sspecialized agency for health. The WHO'sobjective is the “attainment by all peoples of thehighest possible level of health”. Health is definedin the WHO's Constitution as a “state of completephysical, mental and social well-being and notmerely the absence of disease or infirmity”. WHOis governed by 192 member states through theWorld Health Assembly. The Health Assembly iscomposed of representatives from the WHO'smember states.

14. The main tasks of the World Health Assembly areto approve the WHO programme and the budgetfor the following biennium and to decide majorpolicy questions. The WHO is more directlyhealth-related than the ILO but does undertakeinitiatives to improve environmental health.Among other things, the WHO’s activities in thisarea focus on protection of the humanenvironment, provision of clean water andsanitation. With regard to the workplaceenvironment, the WHO seeks to assist its memberstates achieving a sustainable basis for health,ensuring an environment that promotes health andmaking individuals and organizations aware oftheir responsibility for health and its environmentalbasis.

3. Selected ILO Conventions relating to theWorkplace Environment

15. The standards of the ILO take the form ofinternational labour conventions,recommendations, codes of practice andresolutions. The ILO’s conventions areinternational treaties, subject to ratification by ILOmember states. Its recommendations are non-binding instruments, typically dealing with thesame subjects as conventions, which set outguidelines that can orient national policy andaction. The ILO’s recommendations outlinegeneral or technical guidelines to be applied inimplementing the conventions. The codes ofpractice relate to various types of dangerousworkplace equipment or agents, such as the Code

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of Safety in the Use of Chemicals at Work. Finally,the ILO’s resolutions are less formal agreementsbetween the organization and committees ofexperts, special conferences and other bodiescovering topics that are both general in nature andmore technical. All of the ILO’s instruments areintended to have a measurable impact on workingconditions and practices in every country of theworld.

16. ILO’s Occupational Safety and Health ConventionNo. 155 (“ILO Convention No. 155”) (1981), andits accompanying Recommendation No. 164, setforth the standards prescribing the application ofcomprehensive workplace safety measures and acountry’s adoption of a coherent national policy onoccupational health and safety. ILO ConventionNo. 155 also provides a framework for establishingthe responsibility of employers for providing a safeworkplace and the duties and rights of workers.

17. Specifically, ILO Convention No. 155 requiresratifying states to formulate, implement andperiodically review a coherent national policy onoccupational safety, occupational health and theworking environment. Among other things, theratifying state’s policy should take into account thearrangement of elements of the work environment,relations between elements of the workenvironment, training, communication andcooperation, protection of workers and theirrepresentatives from disciplinary measures as aresult of actions properly taken by them inconformity with the policy.

18. In 2002, the ILO supplemented its Convention No.155 by adopting a Protocol that requires memberstates to adopted certain procedures, means andmethods regarding the recording and reporting ofworkplace accidents and diseases.

19. In additional to workplace safety measures, the ILOalso addresses occupational health. Occupationalhealth is the promotion and maintenance of thehighest degree of physical, mental and social well-being of workers in all occupations by preventingdepartures from health, controlling risks and theadaptation of work to people, and people to theirjobs. In 1985, the ILO issued the OccupationalHealth Services Convention No. 161 and itsaccompanying Recommendation No. 171. TheILO Convention No. 171 sets forth standardsstressing the preventative nature of occupationalhealth services, including a regulatory body’sresponsibility for advising employers, employeesand their representatives on the maintenance of asafe and healthy working environment, as well asthe adaptation of an employee’s tasks to his specific

capabilities. It also stresses the relative roles ofemployers and employees, the best use ofresources and cooperation between the two groupsto provide for occupational health.

20. Specific areas covered by ILO Convention No. 171include:

• Identification and assessment of the risksarising from health hazards in the workplace.This involves surveillance of the factors in theworkplace and work practices that may affectthe health of employees. It also requires asystematic approach to the analysis ofoccupational accidents and diseases;

• Advice on the planning and organization ofwork and working practices, includingworkplace design and on the evaluation,choice and maintenance of equipment and onsubstances used at work;

• Advice, information, training and education,on occupational health, safety and hygiene andon ergonomics and protective equipment;

• Surveillance of workplace employees’ health;and

• Organization of first aid and emergencytreatment.

21. An example of an ILO standard that is moredirectly related to a worker’s physical environmentis the ILO Convention No. 170 concerning Safetyin the Use of Chemicals at Work (1990) (“ILOConvention No. 170”). The purpose of thisConvention is to protect the health of workers, thegeneral public and the environment from thepotentially harmful effects that could result fromthe use of chemicals in the workplace. Throughthis Convention, member states are required toformulate and implement national policies andlaws regulating the safe handling of chemicals atwork, classifying the degree of risk posed bychemicals used in the workplace and adoptingemergency plans in to address accidents involvingchemicals. This Convention is important not onlyto countries with a significant manufacturing sectorbut also to those that depend primarily onagriculture. Overall, the Convention calls for thecreation of laws prohibiting or restricting the use ofDDT, polychlorinated biphenyl, mercury, cyanideand other chemicals that have been found toendanger workers’ health and safety, and tocontaminate the environment.

4. The WHO and “Environmental Health”

22. According to the WHO, environmental health“comprises those aspects of human health,

including quality of life, that are determined byphysical, chemical, biological, social, andpsychosocial factors in the environment.”Environmental health also refers to the theory andpractice of “assessing, correcting, controlling, andpreventing those factors in the environment thatcan potentially affect adversely the health ofpresent and future generations”.

23. The WHO has proposed the Global Strategy onOccupational Health for All (“1994 GlobalStrategy”), which is based on availableoccupational health indicators and identifies themost evident needs for the development ofoccupational health and safety. The 1994 GlobalStrategy outlines priority areas at both national andinternational levels and proposes the priorityactions for the WHO’s Workers’ HealthProgramme. The priority objectives proposed bythe 1994 Global Strategy include:

• Strengthening international and nationalpolicies for health at work;

• Developing healthy work environments;• Developing healthy work practices and

promoting of health at work;• Providing increased occupational health

services;• Establishing support services for occupational

health;• Developing occupational health standards

based on scientific risk assessment;• Developing human resources for occupational

health;• Establishing registration and data systems,

including information services for experts andeffective means of transmission of data andinformation; and

• Developing collaboration betweeninternational bodies and non-governmentalorganizations around issues relating tooccupational health.

24. A specific example of a WHO convention that ishealth-related, but has ramifications for thecreation of healthy workplaces is the FrameworkConvention on Tobacco Control (“2003 TobaccoConvention”). Arising out of the recognized needto regulate the adverse health effects of tobacco,the 2003 Tobacco Convention requires WHOmember states to take specific measures to limitsmoking in the workplace. The WHO intends thatmeasures taken at the national level will saveworkers’ lives and prevent diseases that result fromtobacco use.


25. Member states must enact legislation or adoptnational measures in order to implement theconventions and recommendations of the ILO andthe WHO. China, South Africa and Kenya are allmember states of the ILO and the WHO, and haveimplemented a number of laws regulatingworkplace hazards. As such, these three countriesare demonstrating their commitment to createhealthy workplace environments.

1. China

26. Spurred in part by a rash of accidents andexplosions in the country’s coal mining industry,China’s State Administration of Work Safety(“Administration of Work Safety”) has taken avariety of measures to implement labour laws andregulations that protect the health of workers andthe environment. On 12 December 2001, China’sState Economic and Trade Commission adoptedthe country’s first “Guidelines on OccupationalSafety and Health Management Systems” (“2001Guidelines”) as the basis of its Work Safety Law thattook effect in November 2002.

27. Referencing the “ILO Guidelines on OccupationalSafety and Health Management Systems,” theGuidelines encouraged employers to adoptprinciples of occupational health and safety(“OHS”) to reduce workplace hazards and improveworker safety. The 2001 Guidelines also requiredthe Administration of Work Safety to develop,implement and regularly evaluate employers’ OHSprogrammes. Enterprises involved in exceptionallydangerous work, as well as companies that had ahistory of serious accidents, were charged withspecial responsibilities to establish and maintainOHS management systems.

28. The Work Safety Law of 2002 (“Work Safety Law”)codifies China’s OHS guidance. The law requiresthat employers whose operations include thehanding of dangerous substances and materials ordangerous conditions must hire full-time OHSpersonnel to administer safe practices at work. Thelaw also stipulates that employees have the right tobe made fully aware of all hazards present in theirworkplace, as well as the associated preventativeand emergency measures. Employees also have theright to refuse orders that violate OHS rules and totake action against employers who violate therules. The Work Safety Law also obligatesemployees to avail themselves of education andtraining in matters pertaining to OHS and take stepsto render themselves fully aware of the appropriate

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and necessary OHS knowledge. Workers must alsoimprove their skills and capabilities in safe workingpractices, as well as accident prevention andemergency procedures.

2. South Africa

29. In 1996, South Africa passed the Mine Health andSafety Act (“1996 Mine Act”) in response to anumber of health and environmental problems thatwere caused by the country’s mining activities. Atthe time the law was passed, South Africa’s miningindustry employed over 500,000 people, exposingthem to harmful effects of coal mine dusts anddangerous mining operations. One of the 1996Mine Act’s objectives was to give effect to thepublic international law obligations of the Republicof South Africa with regard to mining health andsafety, including the country’s obligations as amember state of the ILO.

30. The 1996 Mine Act delegates responsibility forcreating a healthier and safer mining industrybetween the government, employers andemployees. Specifically, the law requiresemployers to provide and maintain a safeworkplace, to identify and assess workplacehazards to which non-employees may be exposed,and to ensure non-employees are not exposed tohealth or safety hazards. An employer’s miningoperations are to be periodically inspected toassurance compliance with the law. Violation ofthe law by anyone who, by a negligent act oromission, endangers the health or safety of orcauses serious injury to anyone at a mine ispunishable by imposition of a fine orimprisonment.

31. Since the Mine Health and Safety Act was passed,employee representatives have met with SouthAfrica’s Minister of Minerals and Energy to discussmethodologies for the implementation of the Act.As a result of the law, representatives of employersand employees are now involved in the regulationof mineworkers’ health and safety and provideeducation and training to new mine workers.

3. Kenya

32. Kenya has been expanding its commitment to thecreation of healthier work environments byrevising existing legislation and collaborating withthe ILO. Until 1990, the country’s main labour-related legislation was contained in chapter 514 ofthe Factories Act of 1951. As initially enacted,chapter 514 was applicable only to manufacturing

facilities and few provisions that addressed theissue of workplace health and safety. In order toimprove the health and safety of its workforce,however, Kenya began collaborating with the ILO,which provided the country with technical,financial and advisory assistance on measures thatKenya could take to adopt more meaningfuloccupational health and safety measures consistentwith its economic, social and industrialdevelopment aspirations.

33. Kenya’s work with the ILO led to majoramendments to chapter 514, which includedcomprehensive provisions for worker health andsafety. Now entitled the Factories and other Placesof Work Act, the law specifically recognizes, forexample, the dangers posed by chemicals in theworkplace and requires employers to undertakemanagement and treatment programmes tomitigate potential harm to employees and theenvironment. The law specifically requiresemployers to label chemicals correctly to ensuretheir safe handling by workers, to provide workerswith adequate protective clothing, and to recordand report cases of chemical-related workplaceaccident and illnesses.

34. The Directorate of Occupational Health and SafetyServices (“DOHSS”) is one of the regulatory bodiescreated to implement the Act. Representatives ofthe DOHSS periodically inspect Kenya’s factoriesand other places of work to ensure that workplacesare in compliance with the requirements of thestatute. The representatives carry out medicalexaminations of employees and site inspections toensure compliance with safety regulations. Manyof the objectives and activities of the DOHSS arethe result of Kenya’s collaboration with the ILO.

Prof. Malgosia Fitzmaurice, Professor of Public International Law, Queen Mary University ofLondon


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Resources

Internet Materials

CHINA’S WORK SAFETY LAW available at http://www.zhb.gov.cn/english/law.php3?offset

PROJECT UNDER GROUND, DRILLBITS & TAILINGS: OCTOBER 22, 1996: PAGE SIX available athttp://www.moles.org/ProjectUnderground/drillbits/1015/96101506.html

SOUTH AFRICA’S MINE HEALTH AND SAFETY ACT available at http://natlex.ilo.org/txt/E96ZAF01.htm

THE INTERNATIONAL LABOUR ORGANIZATION WEBSITE available at http://www.ilo.org

WORLD HEALTH ORGANISATION FRAMEWORK CONVENTION ON TOBACCO CONTROL (2003) available athttp://www.who.int/tobacco/en

WORLD HEALTH ORGANIZATION GLOBAL STRATEGY ON OCCUPATIONAL HEALTH FOR ALL available athttp://www.who.int/oeh/OCHweb/OCHweb/OSHpages/OSHDocuments/GlobalStrategy/GlobalStrategy.pdf

Text Materials

Building Safety in Asia: Sitting in a TinderBox, available in LEXIS, News Library, CURNEWS File (September 1993).

David Weir, THE BHOPAL SYNDROME: PESTICIDE MANUFACTURING AND THE THIRD WORLD, (1986).

Deadly Blaze Leads to Safety Checks, available in LEXIS, News Library, CURNEWS File, at page 17 (March 1993).

Herbert Nigg, et al, Bulletin of Environmental Contamination and Toxicology (Springer-Verlag ed., Vol. 53)(1994).

James H. Colopy, Poisoning the Developing World: The Exportation of Unregistered and Severely RestrictedPesticides from the United States, IN UCLA JOURNAL OF ENVIRONMNTAL LAW & POLICY, (1994/1995).

Maarit Raution, Dr. Sakari would like to establish a Center for Studies in Occupational Medicine in Kenya, INAFRICAN NEWSLETTER ON OCCUPATIONAL HEALTH & SAFETY, VOL. 8, NO. 2, (September, 1998).

Mitchel Zukof, The Trade Human Rights Clashes over GATT, IN BOSTON GLOBE, (October 30, 1994 at 77).

N.M. Kiama, Occupational Health Services in Kenya, IN AFRICAN NEWSLETTER ON OCCUPATIONAL HEALTH & SAFETY,VOL. 8, NO. 2, (September, 1998).

The Directorate of Occupational Health and Safety Services (“DOHSS”), Ministry of Labour, IN A TRAINING MANUAL

ON HAZARDOUS CHILD LABOUR IN KENYA (with Support from ILO-IPEC Programme on the Elimination of Child Labour)(1991).

United Nations Industrial Development Organization, FORMULATION OF PESTICIDES IN DEVELOPING COUNTRIES (U.N.sales No. E.83.II.B.3) (1993).

World Bank, POLICY RESEARCH AND EXTERNAL AFFAIRS & INDUSTRY DEVELOPMENT DIVISION, Export Processing Zones(1992).

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TRADE AND ENVIRONMENT Chapter 24

24. TRADE AND ENVIRONMENT

I. Introduction

1. In 1999, when the World Trade Organization(“WTO”) held its Third Ministerial Meeting inSeattle, many civil society organizations heldwidely publicized demonstrations via which theyattempted to pressure the global trading system totake into account other issues as well, such aslabour rights, health, environmental issues and thewidening gap between rich and poor people.Since then, globalization, which may be describedas a process of increasing political and economicalintegration among states, has been a phenomenonwhich has continued to receive growing attentionglobally.

2. At the very core of the globalization trend lieseconomic integration through trade, investmentand capital flows. An enormous flow of capital,goods and services crosses the border of eachcountry daily. The WTO advocates the continuouselimination of trade barriers in order to achieve freetrade. The WTO, therefore, is seen as one of theembodiments of globalization, besides otherorganizations such as the Bretton Woodsinstitutions (i.e. World Bank Group andInternational Monetary Fund).

3. Advocates of free trade argue that tradeliberalization promotes sustainable development.Various arguments are employed to support thisclaim. One argument proposes that, throughliberalizing trade, the efficient use of the world’sscarce resources would be stimulated. This theory,known as ‘comparative advantage,’ reasons thateach country will specialize in goods and services,which it produces more efficiently than othercountries. Furthermore, it is argued that free tradewill generate economic growth and wealth. Morewealth and an increase in income will, in turn,provide the necessary means for increasedenvironmental protection. Moreover, throughgenerating wealth and increased incomes,international trade would have the potential toreduce or alleviate poverty.

4. Until 1994, when new arrangements were agreed,the liberalization of trade was the objective of theGeneral Agreement on Tariffs and Trade (“GATT”),which was adopted in 1947, after the SecondWorld War with the aim to establish a newinternational trading system. It was the intention to

create another institution, besides the BrettonWoods institutions, to handle internationaleconomic cooperation. However, the attempt tocreate an International Trade Organization failed,and as a result, the GATT remained as the onlymultilateral instrument governing internationaltrade. The GATT’s objective was to liberalize tradeand to have goods move as freely as possible bylowering and/or eliminating trade barriers.

5. Trade barriers can appear as tariffs that countriesimpose on goods when these are imported, or asnon-tariff barriers, such as quotas and bans, whichare quantitative restrictions.

6. From 1947 to 1994, the elimination of tradebarriers has taken place in eight rounds of tradenegotiations under auspices of the GATT. Theserounds were often rather lengthy; for example, theUruguay Round consisted of ten intergovernmentalmeetings spread out over almost eight years (1986-1994) to review and discuss all the trade issuesunder the GATT.

7. The Uruguay Round led to the establishment of theWTO in 1995, which replaced the GATT as theinternational organization overseeing themultilateral trading system. The Agreement from1947 was revised, which led to a new agreement,the GATT 1994. It should be noted that the WTOdid not replace the GATT as an agreement. TheGATT 1994 was integrated within the WTO. Themain functions of the WTO are administeringWTO trade agreements, serving as a forum fortrade negotiations, handling trade disputes,monitoring national trade policies, cooperatingwith other international organizations and assistingdeveloping countries in trade policies issues. Itsmain objective is similar to that of the GATT,namely to ensure that trade moves freely andpredictably.

8. The relationship between international trade andthe environment is rather complex. Some claimthat international trade is responsible forenvironmental degradation, since it causesincreased global economic activity, whichaccelerates environmental degradation. Illegaltrade in wildlife, unsustainable harvesting oftropical forests, non-sustainable exploitation offisheries, increased transboundary movement ofhazardous wastes, and acceleration of climatechange processes through emission of greenhousegases are seen as results of free trade.

9. The linkages among environmental protection andconservation, broader sustainable developmentissues and trade topics gained increased attention

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in particular since the 1992 Rio Earth Summit,during which governments emphasized theimportance for trade and environmental policies tobe mutually supportive in order to encouragesustainable development. Agenda 21, adopted inRio, states in chapter 39.3(d): “...States recognizethat environmental policies should deal with theroot causes of environmental degradation, thuspreventing environmental measures from resultingin unnecessary restrictions to trade...”. Further, theRio Declaration on Environment and Developmentincludes Principle 12, which provides that

Rio DeclarationPrinciple 12

“[S]tates should cooperate to promote a supportiveand open international economic system that wouldlead to economic growth and sustainabledevelopment in all countries, to better address theproblems of environmental degradation. Tradepolicy measures for environmental purposes shouldnot constitute a means of arbitrary or unjustifiablediscrimination or a disguised restriction oninternational trade. Unilateral actions to deal withenvironmental challenges outside the jurisdiction ofthe importing country should be avoided…”

10. The link between environment and trade is alsoaddressed in many Multilateral EnvironmentalAgreements (“MEAs”), such as article II of the 1973Convention on International Trade in EndangeredSpecies of Wild Fauna and Flora (“CITES”), whichlists under its Fundamental Principles: “Appendix Ishall include all species threatened with extinctionwhich are or may be affected by trade. Trade inspecimens of these species must be subject toparticularly strict regulation in order not toendanger further their survival and must only beauthorized in exceptional circumstances.”

11. More recently, the 2000 Cartagena Protocol onBiosafety includes among its preambularparagraphs: “Recognizing that trade andenvironment agreements should be mutuallysupportive with a view to achieving sustainabledevelopment”.

12. The 1998 Convention on the Prior InformedConsent Procedure for Certain HazardousChemicals and Pesticides in International Trade(“PIC Convention”) is immersed with therelationship between trade and environment. Itsfirst preambular paragraph reads, “[a]ware of theharmful impact on human health and theenvironment from certain hazardous chemicalsand pesticides in international trade;” and it alsocontains “[R]ecognizing that trade and

environmental policies should be mutuallysupportive with a view to achieving sustainabledevelopment”. Article 1 states the objective of thePIC Convention:

PIC ConventionArticle 1

“The objective of this Convention is to promoteshared responsibility and cooperative efforts amongParties in the international trade of certain hazardouschemicals in order to protect human health and theenvironment from potential harm and to contribute totheir environmentally sound use, by facilitatinginformation exchange about their characteristics, byproviding for a national decision-making process ontheir import and export and by disseminating thesedecisions to Parties.”

13. The 2001 Convention on Persistent OrganicPollutants (“POPs”) includes in its Preamble,“[R]ecognizing that this Convention and otherinternational agreements in the field of trade andthe environment are mutually supportive.” Thesame idea is also included in a variety of regionalagreements.

14. The 1995 Agreement establishing the WTOincludes the following guidance in the firstparagraph of the Preamble:

“Recognizing that their relations in the field of tradeand economic endeavour should be conducted with aview to raising standards of living, ensuring fullemployment and a large and steadily growing volumeof real income and effective demand, and expandingthe production of and trade in goods and services,while allowing for the optimal use of the world'sresources in accordance with the objective ofsustainable development, seeking both to protect andpreserve the environment and to enhance the meansfor doing so in a manner consistent with theirrespective needs and concerns at different levels ofeconomic development.”

15. There is uncertainty about the implications when astate is a party to a MEA but not a member of theWTO, and viceversa. The use of trade sanctions toimplement international environmental obligationsraises possible conflicts between obligations underMEAs and obligations under the WTO. Suchconflicts would be subject to the general rules ofinternational law, as reflected in the 1969 ViennaConvention on the Law of Treaties (as discussed inchapter 1 of this Manual).

16. Applying these rules, it would follow that the traderestrictions established under post-1994agreements, such as the 2000 Biosafety Protocoland the 2001 POPs Convention, would prevail

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over inconsistent obligations established under the1994 GATT (to the extent that they are inconsistent)when the states involved are parties to both theMEA as well as the GATT. In the case when a stateis not a party to the relevant MEA, the obligationsof the GATT might prevail, to the extent that theGATT obligations are inconsistent. The situation isslightly more complex in the case of pre-1994MEAs, such as the 1987 Montreal Protocol and the1989 Basel Convention. With the GATT 1947being re-adopted as the GATT 1994 at the UruguayRound of trade negotiations, the trade agreementis, at least technically, the lex posterior. However,the ruling of the WTO Appellate Body in theShrimp/Turtle dispute suggests that traderestrictions in most MEAs, like the 1987 MontrealProtocol or the 1989 Basel Convention, areunlikely to fall afoul of the GATT 1994requirements. Moreover, some MEAs may also beseen as lex specialis rules (i.e., more specific rules)than those embodied in the GATT.

17. Trade and environment are intertwined with oneanother. Indeed, trade rules can have a degradingimpact on the environment, and environmentalmeasures can interfere with free trade, byprohibiting trade in certain products or imposetrade barriers in their aim to protect theenvironment. But besides this more negative andmore visible correlation, the two regimes also havethe possibility to coexist and to reinforce oneanother. The multi-faceted interrelation betweenthe multilateral trading system and environmentalregimes will be the focus of this chapter.

II. International Framework:

the Pillars of the World Trade Organization System -the Agreements and the Dispute Settlement

Understanding

1. The Agreements of the World Trade Organization

18. As mentioned above, the WTO was established bythe 1994 Marrakesh Agreement, which enteredinto force on 1 January 1995, and superseded theGATT as the international institution to regulateinternational trade. At its heart are the WTOAgreements, negotiated and ratified by the bulk ofthe world’s trading nations. These documents formthe legal basis for international commerce. Partieshave to keep their trade policies within agreedlimits. Although negotiated and signed bygovernments, the goal of the WTO Agreements isto help producers of goods and services, exporters,and importers to conduct their business, whileattempting to allow governments to meet socialand environmental objectives.

19. The WTO Agreements cover goods, services andintellectual property. The Agreements arestructured in such a way that all members have toaccept the whole ‘package’ which consists, ingeneral, of: (a) the 1994 GATT, which comprises ofthe 1947 GATT as well as subsequent decisions onthe application of its provisions, and which isaugmented by twelve multilateral agreements suchas the Agreement on Technical Barriers to Tradeand the Agreement on Sanitary and PhytosanitaryMeasures, (b) the General Agreement on Trade inServices;,(c) the Agreement on Trade-RelatedAspects of Intellectual Property Rights, and (d) theUnderstanding on Rules and Procedures governingthe Settlement of Disputes. Some of the provisionsof these agreements may have an impact onenvironmental issues and will be discussed in thischapter.

2. 1994 General Agreement on Tariffs and Trade

20. The 1994 General Agreement on Tariffs and Trade(“1994 General Agreement”), formally adopted atthe 1994 Marrakesh Conference establishing theWTO, covers international trade in goods. The1947 General Agreement is based on the 1947GATT, and the developments and decisionsadopted since that time. Promotion andliberalization of free trade has been the purpose ofGATT since its inception. At the core of GATT arethree principles:

i) The most-favoured-nation clause,ii) The national treatment obligation, and iii) Non-tariff barriers, quantitative restrictions and

licenses.

21. The most-favoured-nation clause, found in article 1of the 1994 General Agreement, ensures equalityof treatment, and prohibits discrimination betweenthe products of different importing states. A specificprivilege or treatment given to products from onecountry is subsequently also granted to similarproducts from all WTO members. This rule tries toavoid different tariffs for different countries. Forexample, Country A favours the import of a certainproduct from Country B, by providing it cheapercustom charges and duties. At the same time,Country A imposes higher custom charges andduties on similar (the GATT language is ‘like’)imported products from other countries. The GATTdoes not allow this and the most-favoured-nationprinciple has to be applied to the like products ofthe other countries. The consequence for CountryA is that it has to impose the same favoured customcharges and duties that Country B enjoys on theimported similar products of other countries.

22. The second key principle is included in article III ofthe 1994 General Agreement, the principle ofnational treatment. The essence of this principle isto prevent discrimination between imported anddomestically produced goods. It requires importingcountries to treat imported products the same asdomestically ‘like products.’ Country X produces aproduct, but also imports ‘like products’ fromCountry Z. However, at the same time, Country Xis posing an excessively high tax on the importedlike products and a lower tax on their home-produced product. In such a case, the GATT’snational treatment principle says that Country Xhas to apply the same taxes or regulations onimported like products from Country Z as they doon their own national products. No domestic lawsshould be applied to imported products to protectdomestic producers.

23. The issue of ‘like products’ has given rise to longand intensive discussions. In each specific case, theterm ‘like product’ has to be determined by takinginto account a number of factors (e.g., the product’send use in a given market or the properties of theproduct). Moreover, discussions arose on anotherfactor that has to be taken into account, namely theway products are produced or harvested, the so-called ‘process and production methods’ (“PPMs”).An example where the issue of PPMs becamerelevant was the catching of tuna in nets that killeddolphins as well. When the USA banned import oftuna from Mexico, which was caught with nets thatalso killed dolphins, the Dispute Settlement Panelruled in 1991, that this action discriminated against‘like products’. In other words, an importingcountry cannot impose a ban on the like productsof an exporting country member with a similarproduct, but which is produced or harvested in adifferent way. It is claimed that this encouragescountries to maintain lower production standardsconcerning environmental conditions and animal,human or plant life, or health and safety.Environmentalists regarded this ruling as a setbackfor protecting the environment.

24. The third and final key principle is article XI, whichaims to encounter non-tariff barriers. It prohibitsquantitative restrictions to trade such as bans andquotas on imported and exported goods. Thismeans that a country cannot enforce a regulationthat imposes a quota on goods – for instance, toimport not more than 5,000 pieces of a specificproduct - from another country to protect their owndomestic ‘like products’. Such a non-tariff barrier isconsidered to be an obstruction to internationaltrade.

25. Moreover, members are obliged to transparencypursuant to article X (i.e., they have to publish alltrade and trade-related measures to ensurecertainty, predictability and accountability ofgovernmental measures).

26. The international trading system (including its basicprinciples) is subject to a number of exceptions.Article XX of the 1994 GATT, entitled ‘generalexceptions’, exempts from the obligations of theGeneral Agreement measures that are necessary forachieving certain public objectives such asprotection of public morals and protection ofhuman, animal or plant life, health, nationaltreasures, or exhaustible natural resources.Quantitative restrictions can be used to achievethese objectives, subject to the requirement thatsuch measures are not applied in a manner thatwould constitute a means of arbitrary orunjustifiable discrimination between countries oras a disguised restriction on international trade.

27. For example, two exceptions to the most favoured-nation clause apply. The first exception applies toregional trade agreements. A large number of WTOmembers are party to one or more regional tradeagreements; and preferential tariffs may beestablished between the parties of thoseagreements. Another exception applies to the least-developed countries. The WTO allows members toapply favoured tariff rates, or zero tariff rates, toproducts coming from these countries whileapplying higher rates for similar products fromother countries. The objective of this exception is topromote economic development where it is mostneeded (article XVIII).

28. The possibility for a security exception also existsunder article XXI, which allows a general deviationfrom the WTO obligations in cases where thesecurity interests of a country are concerned. Amember is allowed to take any action that itconsiders necessary for the protection of itsessential security interests, and members are notrequired to furnish any information the disclosureof which would be contrary to their essentialsecurity interests. For example, quantitativerestrictions are permissible in respect of trade inproducts which impinge on a country's securityinterests (e.g. arms and ammunition).

29. Environmental exceptions are also allowed. ArticleXI, which prohibits non-tariff barriers, may lead toconflicts with the provisions included in someMEAs. For example, the 1989 Basel Conventionon the Control of Transboudary Movements ofHazardous Wastes and their Disposal (“Basel

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Convention”) and the 1973 Convention onInternational Trade in Endangered Species of WildFauna and Flora (“CITES”) both contain regulationsthat impose license or permit requirements fortrade in the materials that they control. Forexample, CITES has three appendices that limit thetrade of endangered species listed in thoseappendices. Countries, however, are allowed totrade in these species on the condition that theyhave an export permit and, in the case of AppendixI, also an import permit. The use of permits toregulate trade is obviously a limitation tointernational trade, but it protects the environment.This measure falls within the scope of exemptionsfound in article XX of the GATT.

30. The two paragraphs of article XX that are relevantfor environment-related measures are:

“Subject to the requirement that such measures arenot applied in a manner which would constitute ameans of arbitrary or unjustifiable discriminationbetween countries where the same conditionsprevail, or a disguised restriction on internationaltrade, nothing in this Agreement shall be construed toprevent the adoption or enforcement by anycontracting party of measures: ...(b) necessary to protect human, animal or plant lifeor health; and...(g) relating to the conservation of exhaustiblenatural resources if such measures are madeeffective in conjunction with restrictions on domesticproduction or consumption”[...]

31. Before a country can apply these exceptions it mustestablish a provisional justification and a finaljustification. Paragraph (b) requires the party toprove that the rule is ‘necessary’ to protect theenvironment. The word ‘necessary’ requires that:(i) the state must prove the necessity of protectingits environment, (ii) in order to protect theenvironment, a rule that affects the free trade isneeded, and (iii) the state must demonstrate that theused measure is the least trade-restrictive option.

32. Paragraph (g) allows countries to take action toconserve exhaustible natural resources. A stateclaiming an exception under this paragraph mustfirst prove that the measure relates to theconservation of the exhaustible natural resource.Furthermore, the state must demonstrate that themeasure is in conjunction with national restrictionson the exhaustible natural resource and is aimedprimarily at the objective of conservation. When ameasure passes this provisional justification, it mustcomply with the opening paragraph (the ‘chapeau’)of article XX, which addresses how the measure isapplied. This is called the final justification.

33. The exceptions in article XX (b) and (g) of the GATTare being mirrored in the Agreement on TechnicalBarriers to Trade (“TBT”) and the Agreement on theApplication of Sanitary and PhytosanitaryMeasures (“SPS”). As discussed previously, theexceptions of article XX are a reason to apply atechnical barrier, or a sanitary or phytosanitarymeasure. Such measures are only applicable if theexception threatens human, animal or plant life, orhealth. For instance, when a country uses growthhormones to raise chickens resulting in meatcontaining hormone residue that can be harmfulfor human health, a country could opt to preventimports by citing the exception possibility. Anotherexample, relating to the TBT Agreement, is where acountry allows only CFC-free refrigerators to beimported. This is a technical barrier to internationaltrade, to protect human, animal and plant life bydecreasing the amount of CFC-gasses that depletethe ozone layer.

3. General Agreement on Trade in Services

34. The General Agreement on Trade in Service(“GATS”) is the first agreement to set multilateralrules and commitments that direct governmentmeasures regarding trade in services. The GATScovers all services such as water, health, energy,tourism and education. Ranging from architectureto telecommunications and air transport, servicesare often the largest and most dynamic componentof many developed and developing countryeconomies. Important in their own right, theseservices also serve as crucial inputs into theproduction of most goods.

35. Part II of the GATS sets out "general obligations anddisciplines”, which are basic rules that apply to allmembers and, for the most part, to all services.The GATS article II, on most-favoured-nationtreatment, directly parallels the centrally importantarticle I of the GATT. The first paragraph states that"With respect to any measure covered by thisAgreement, each member shall accordimmediately and unconditionally to services andservice suppliers of any other member treatment noless favourable that it accords to like services andservice suppliers of any other country". Thisclassical statement of the most-favoured-nationprinciple is, however, qualified. A member ispermitted to maintain a measure inconsistent withthe general most-favoured-nation requirement if ithas established an exception for this inconsistency.

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36. A second basic principle carried over from theGATT is transparency. Traders will bedisadvantaged in doing business in a foreigncountry unless they know what laws andregulations they face. The GATS requires eachmember to publish promptly “all relevant measuresof general application,” that is, measures other thanthose which involve only individual servicesuppliers that affect operation of the Agreement.

37. The GATS provisions on general and securityexceptions are similar to their GATT equivalents.This similarity reflects the fact that the overridingconsiderations which are recognized as allowing acountry to ignore specific international obligationswill apply as strongly to one aspect of its trade as toanother. The general exceptions (article XIV) are,as in the GATT, preceded by the chapeau thatmakes the right of a member to adopt or enforcemeasures for the purposes listed subject to thecondition that they are not applied as “a means ofarbitrary or unjustifiable discrimination betweencountries where like conditions prevail, or adisguised restriction on trade in services...”.

38. One general obligation of the GATS that has noGATT counterpart is article IX, which pioneers in amultilateral trade agreement in recognizing that"certain business practices" of service suppliersmay restrain competition and thereby restrict tradein services. Members agree to consult on suchpractices, when so requested by another member,and to exchange information with a view toeliminating them.

39. Governments can make their own schedule ofcommitments related to services and determine thelevel of obligations they will require of foreignsuppliers. This flexibility is in favour of developingcountries, as they are expected to liberalize fewerservice sectors in line with their developmentsituation. The obligation schedules of developingcountries are, in general, less extensive than thoseof developed countries.

40. There are four levels of flexibility within the GATS.First, governments decide in which sectors theywill make commitments guaranteeing the foreignsupplier to provide the service. Second,governments can set limitations on the services thatare committed and can define the level of marketaccess and degree of national treatment that theyare prepared to give. Third, governments canrenegotiate or even withdraw commitments.Finally, governments are allowed to provide morefavourable treatment to some trading partners. Inthis regard, the governments can make exemptions

from the most-favoured nation principle, which isotherwise applicable to all services. Since 2000, anew round of negotiations is underway “with aview to achieving a progressively higher level ofliberalization" of trade in services.

4. Agreement on Trade-Related Investment Measures(“TRIMs”)

41. Between 1990 and 2000, a significant rise in themobility of capital has occurred. There was,notably, an increase of international investment ingeneral, and of Foreign Direct Investment (“FDI”)in particular. An example of FDI is an investmentof a company based in Country A, whichcontributes to the equity of a company in CountryB. Other types of investment are currencyspeculations and international portfolioinvestment, which is investment in stocks andshares. Increased capital flows and FDI may havean impact on the environment. Liberalizinginvestment measures may lead to the creation of‘pollution havens,’ meaning that companies investin another country to take advantage of lessstringent environment measures or non-enforcedenvironmental standards in that country.

42. TRIMs applies only to investment measures thataffect trade in goods. Acknowledging thatinvestment measures can have trade-restrictiveeffects, this Agreement prohibits a WTO memberfrom applying a measure that is prohibited by theprovisions of GATT article III (national treatmentobligation) or XI (quantitative restrictions). In 1996,a Working Group was established to examine therelationship between trade and investment.

43. Many developing countries have made it clear thatthey consider that the Working Group had notcompleted however, analysis and study of thesubject. They argue that the existing bilateralinvestment treaties (UNCTAD estimates that over2,100 bilateral treaties are in operation) alreadyprovide adequate legal protection to investors, andquestion whether a WTO agreement would indeedincrease investment flows. They have expressedconcern that a multilateral agreement would addobligations to developing countries while limitingtheir ability to align investment inflows withnational development objectives.

44. In the mid 1990s, efforts were made, under theauspices of the Organization on EconomicCooperation and Development (“OECD”), toestablish a Multilateral Agreement on Investment(“MAI”) which would allow for the free movementof capital across international borders by imposing

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a new set of rules restricting countries from usinglegislation, policies and programmes asobstructions to the free flow of capital. In October1998, the negotiations on MAI failed for a numberof reasons, such as social and environmentalconcerns. The draft MAI was criticized byenvironmentalists for not providing adequatesafeguards for the environment.

45. At the 2001 WTO Doha Ministerial Conference,the ministers recognized that “the case for amultilateral framework to secure transparent, stableand predictable conditions for long-term cross-border investment, particularly foreign directinvestment”. The ministers gave the WorkingGroup a new and more ambitious mandate on thissubject, and agreed that negotiations on aninvestment agreement would take place after thenext ministerial conference in Cancun “on thebasis of a decision to be taken, by explicitconsensus at that Session on the modalities ofnegotiations (i.e., how the negotiations are to beconducted)”.

46. However, in Cancun, no consensus was reached,in particular because of the major controversiessurrounding the so-called ‘Singapore issues.’Because the mandate came from the 1996Singapore Ministerial Conference, trade andinvestment is sometimes described as one of four‘Singapore issues’. The other ‘Singapore issues’ aretrade and competition policy, transparency ingovernment procurement, and trade facilitation.

. 5. Agreement on Technical Barriers to Trade

47. The Agreement on Technical Barriers to Trade(“TBT Agreement”) covers technical regulationsand standards. Its objective is to ensure that WTOMembers do not use technical regulations orstandards in such a way that international trade isobstructed. The TBT Agreement tries to ensure thatregulations, standards, testing and certificationprocedures do not create unnecessary obstacles.Technical regulations and product standards mayvary from country to country. Having manydifferent regulations and standards posesdifficulties for producers and exporters. Ifregulations are set arbitrarily, they could be used asan excuse for protectionism. The TBT Agreementdefines a technical regulation as a document thatlays down the characteristics of the product or theirrelated process and production measures. The TBTAgreement also deals with labelling and/orpackaging as these methods apply to theproduction or process methods.

48. Article 2.2 of the TBT Agreement also includesenvironmental-related possibilities for exception:

“Members shall ensure that technical regulationsare not prepared, adopted or applied with a view toor with the effect of creating unnecessary obstaclesto international trade. For this purpose, technicalregulations shall not be more trade-restrictive thannecessary to fulfil a legitimate objective…. Suchlegitimate objectives are, inter alia: national securityrequirements; the prevention of deceptive practices;protection of human health or safety, animal orplant life or health, or the environment...”

49. An example of a TBT measure is the use ofhazardous or toxic materials in the packaging ofproducts. If an exporting country uses toxic orhazardous materials, it may be subjected to a banon its products by countries that ban productscontaining or being processed using toxic orhazardous wastes. Before a TBT measure can beapplied, certain conditions have to be fulfilled.Technical regulations should not be more traderestrictive than necessary to fulfill their legitimateobjective of article 2.

50. The TBT Agreement seeks harmonization oftechnical regulations and standards. The imposedregulations and standards should be based onavailable and relevant standards from aninternational body. The Agreement also requiresthat, when the objective that gave rise for theapplication of the regulation or standard no longerexists, then the regulation or standard has to beremoved. The same applies when there is a lesstrade restrictive regulation available.

6. Agreement on the Application of Sanitary andPhytosanitary Measures

51. The Sanitary and Phytosanitary Agreement (“SPSAgreement”) governs regulations aimed atprotecting human, animal and plant health.Almost all states have regulations to ensure thatfood is safe for consumers, and to prevent thespread of pests or diseases among animals andplants. These sanitary (human and animal health)and phytosanitary (plant health) measures can takemany forms, such as requiring products to comefrom a disease-free area, inspection of products,specific treatment or processing of products, settingof allowable maximum levels of pesticide residuesor permitted use of only certain additives in food.The measures usually apply to domesticallyproduced food or local animal and plant diseases,as well as to products coming from other countries.

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52. Sanitary and phytosanitary measures may result inrestrictions on trade. All governments accept thefact that some trade restrictions may be necessaryto ensure food safety and animal and plant healthprotection. However, sometimes governments gobeyond what is needed for health protection anduse sanitary and phytosanitary restrictions to shielddomestic producers from economic competition.The basic aim of the SPS Agreement is to maintainthe sovereign right of any government to providethe level of health protection it deems appropriate,but to ensure that these sovereign rights are notmisused for protectionist purposes and do notresult in unnecessary barriers to international trade.

53. The SPS Agreement still allows countries to set theirown standards, but it also states that regulationsmust be based on science. They should be appliedonly to the extent necessary to protect human,animal or plant life or health (article 2.(2)). Further,regulations should not arbitrarily or unjustifiablydiscriminate between countries where identical orsimilar conditions prevail.

54. The SPS Agreement includes provisions on control,inspection and approval procedures. Governmentsmust provide advance notice of new or changedsanitary and phytosanitary regulations, andestablish a national enquiry point to provideinformation.

55. Due to differences in climate, existing pests ordiseases, or food safety conditions, it is not alwaysappropriate to impose the same sanitary andphytosanitary requirements on food, animal orplant products coming from different countries.Therefore, the SPS Agreement recognizes thatsanitary and phytosanitary measures sometimesvary, depending on the country of origin of thefood, animal or plant product concerned.

7. Agreement on Trade-Related Aspects of Intellectual Property Rights

56. For a discussion of the Agreement on Trade-RelatedAspects of Intellectual Property Rights (“TRIPS”),reference is made to chapter 15 of this TrainingManual on Biological Diversity.

8. Dispute Settlement Understanding (“DSU”)

57. Besides the WTO Agreements, an important pillarof the World Trade System is WTO’s DisputeSettlement Understanding, which can be seen asthe central element of the WTO to provide securityand predictability to the international tradingsystem. The DSU was agreed upon during theUruguay Round, and is in many ways more

evolved than it was under the trading system before1994. The DSU sets out the various stages in thesettlement procedure and the timetable to befollowed in resolving disputes. However, the timelimits are not rigid. For example, when a case isconsidered urgent, if it involves perishable goods,then the case should be decided upon in less time.Furthermore, the DSU makes it impossible for thecountry that looses the case to block the adoptionof the ruling. The ruling, in the initial as well as inthe appeal stage, is automatically adopted unlessthere is consensus on rejecting the ruling. This is abig step forward from the 1947 GATT, whereconsensus was needed to adopt the ruling, so itcould be blocked by a single objection.

58. The body that deals with the settlement of disputesis the Dispute Settlement Body (“DSB”), which isactually the General Council meeting as theDispute Settlement Body, made up of all membergovernments. The Dispute Settlement Body issolely authorized to establish the ‘Panels’ that willconsider the case, and to accept or reject thePanels’ findings or the results of an appeal. TheDispute Settlement Body also monitors theimplementation of the rulings and therecommendations; and it also has the power toauthorize sanctions if the country that lost the casedoes not comply with the ruling.

59. Before it is decided to establish a Panel tocontemplate the case, the countries in the disputeat hand have to enter into negotiations to see if theycan settle their differences by themselves. Theycan request the WTO Director-General to mediateor try to help in any other way. If this stage (up to60 days) of consultation fails, the complainingcountry can request the DSB to appoint a Panel.Within 45 days, the Panel is to be established andthe panellists are to be appointed. The final reportof the Panel has to present to the parties within sixmonths, and three weeks later it has to becirculated to all WTO members. Panels, whichmostly consist of three experts, examine theevidence and decide on the case. The Panel’sreport, which contains the rulings orrecommendations, is submitted to the DSB.Despite the ‘assisting role’ of the Panels, theirconclusions are difficult to overturn, as this canonly be done by consensus within the DSB.

60. If the ruling does not satisfy a party to the dispute,it may appeal against the ruling. The appeal has tobe based on points of law such as raising questionsabout the legal interpretation of the provisions inquestion. It may not request the re-examination ofevidence or provide new evidence. The appealprocedure is handled by the Appellate Body,

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consisting of seven permanent members, of whichthree members will hear the appeal. The AppellateBody can uphold, reverse or modify the Panel’sruling. It should take the Appellate Body between60 and 90 days to come up with an appeals report.The appeals report will be acceptedunconditionally by the DSB after 30 days from theissuance to the members. The report can only berejected through the DSB by consensus.

61. If the report, the ‘Panel’s report’ if there is no appealand the ‘Appeals report’ if there is an appeal, isaccepted, the affected party has to bring its lawand/or policy in ‘prompt’ compliance with therecommendations or rulings. The country muststate its willingness to do so at a DSB meeting to beheld within 30 days after the report’s adoption. If itis impossible to comply promptly, the country willbe given a ‘reasonable period of time’ to do so.When the country fails to comply with therecommendations and rulings within thereasonable time period, it has to negotiate with thecomplainant to determine mutually acceptablecompensation, such as, for example, elimination or

9. Institutional Structure of the World TradeOrganization

63. As of December 2005, the WTO has 149members, which all have one vote in the system.Decisions in the WTO are normally taken byconsensus. A majority vote is also possible, but thisoption is hardly ever used.

64. The highest authority in the WTO belongs to theMinisterial Conference (“MC”). This body meets atleast once every two years and is composed of therelevant ministers of the WTO countries, such asministers for economic affairs, foreign affairs,industry, etcetera. Since the establishment of theWTO in 1994, they have met five times. The firstMC was held in 1996, in Singapore, and the mostrecent MC was held in Cancun, in September2003. The MC can take decisions on all issuesdealt with under the multilateral trade agreements.

reduction of quotas or licenses. If there is then noagreement within 20 days then the complainingcountry can ask for limited trade sanctions.

62. Despite the numerous suggestions forimprovements or clarifications, underlying theseproposals is the shared conviction amongst allmembers that overall the DSU has served themwell since it started operating. This is illustrated bythe fact that more than 300 cases have beenbrought to the DSB since 1995, compared with thefinal total of 300 cases filed during the entire 47years of the former GATT. At the Doha MinisterialConference, member states agreed to negotiate toimprove and clarify the DSU. Originally, it wasagreed to conclude these negotiations before May2003. On 24 May 2003, acknowledging the factthat the DSB special session needed more time toconclude its work, the General Council agreed toextend teh special sessions timeframe by one yearto May 2004. A futher extension was agreed by theGeneral Council on 1 August 2004 current settinga new deadline. However, no consensus has beenreached yet.

65. The next level is the General Council. This bodymeets several times a year at WTO’s GenevaHeadquarters and consists of governmentrepresentatives (usually ambassadors or equivalent)of all members. The Council acts on behalf of theMC in all WTO affairs, it is handling the day-to-daywork in between Ministerial Conferences. TheCouncil also meets as the Trade Policy ReviewBody, to review members’ policies, and as theDispute Settlement Body, to settle disputesbetween WTO members. The Council reports tothe MC.

66. The next level is composed by Councils: the GoodsCouncil, the Service Council and the IntellectualProperty (“TRIPS”) Council. They all report to theGeneral Council, and are responsible for thefunctioning and implementation of the agreementrelated to their area of expertise. The Councils havecommittees who keep them informed aboutdevelopments in issues relating to trade, services orintellectual property.

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Table 1: Dispute Settlement Understanding Stages

These approximate periods for each stage of a dispute settlement procedure are target figures - the agreement is flexible. Inaddition, the countries can settle their dispute themselves at any stage. Totals are also approximate. (source: www.wto.org)60 days Consultations, mediation, etc45 days Panel set up and panellists appointed6 months Final panel report to parties3 weeks Final panel report to WTO members60 days Dispute Settlement Body adopts report (if no appeal)Total = 1 year (without appeal)60-90 days Appeals report30 days Dispute Settlement Body adopts appeals reportTotal = 1 year 3 months (with appeal)

67. Six other committees and working groups are alsoreporting to the General Council. The WTOmembers are all represented in these committees.The committees deal with issues such asdevelopment, environment, regional tradeagreements, investment, competition policy andgovernment procurement.

68. The Committee on Trade and Environment (“CTE”)has been established during the Uruguay Round in1994. The objective of the CTE is to study therelationship between trade and environment and tomake recommendations on the need for rules toenhance the positive interaction between trade andenvironment measures for the promotion ofsustainable development.

69. The CTE’s work is focused on two principles. First,the WTO Members do not want the WTO tointervene in the setting of national andinternational environmental standards, as it is notan environmental agency. This should be left to thecompetent organs of MEAs, such as the Conferenceof the Parties (“COP”). The WTO is solelycompetent to deal with international trade and inthe area of environment, and its main task is toraise questions when environmental measureshave significant impact on trade and viceversa.The second important principle where the CTE isbased upon is to uphold the WTO rules in case aconflict arises between environmental regulationsand multilateral trade agreements.

70. At the Fourth Ministerial Conference in Doha in2001, Ministers instructed the CTE to focusparticularly on three issues: the effects ofenvironmental measures on market access, therelevant provisions of the TRIPS Agreement, andlabelling requirements for environmental purposes.It was also agreed that the CTE should deal with (i)the relationship between existing WTO rules andspecific trade obligations set out in MultilateralEnvironmental Agreements (“MEAs”), (ii)procedures for regular information exchangebetween MEA Secretariats and the relevant WTOcommittees, and the criteria for the granting ofobserver status, and (iii) the reduction or, asappropriate, elimination of tariff and non-tariffbarriers to environmental goods and services.

71. The CTE has not come up with effective solutionsfor the interlinked issues of trade and environment,but merely discussed and analyzed the problems.While its mandate was broad, its powers were lessso. It is institutionally separated from the WTOCommittees that have direct responsibility for theongoing development of the specific agreementsmost relevant to environmental issues, such as the

Committees on Technical Barriers to Trade, and onSanitary and Phytosanitary Measures, and theCouncils for TRIPS and Services. The CTE has notbeen able to move many of the trade andenvironment issues within its mandate very farforward. However, the lack of significant progressin the CTE did not always lead to stagnation in thebroader debate. For example, some topics of theCTE agenda have been addressed with successoutside the WTO. It may be possible for the CTE tobecome more powerful through the mandate toconduct the trade and environment-relatednegotiations in special negotiations sessions. Also,the ongoing meetings of the CTE with several MEASecretariats focusing on exchange of information,technical assistance and capacity building couldprovide a further basis to enhance the mutualsupportiveness between the multilateral tradingsystem and international environmental law.

72. The broad agenda launched at the fourth WTOMinisterial Conference in Doha in 2001 wasexpected to conclude and provide results by 1January 2005, but the pace of negotiations is ratherslow and did not meet this deadline. A SixthMinisterial Conference was held in Hong Kong,China from 13 - 18 December 2005, and the aimis to complete the Doha Round in 2006. One of theissues that is scheduled to have been agreed uponis the definition of the concept of an"environmental good", and to identifyenvironmental goods that are in the export interestof developing-country members, whilst bearing inmind the potential for these negotiations to deliver"environmental" as well as "trade" gains.

10. Examples of cases dealt with by the DisputeSettlement System of the GATT/WTO concerning

Environmental Issues

73. The GATT and the other additional agreements donot provide a straightforward framework for if aconflict occurs between free trade andenvironmental protection. The application ofarticle XX to trade-restrictive rules in multilateralenvironmental agreements and national legislationhas been proven difficult. This problem of settlingcompeting social and economic values is beingaddressed by the Committee on Trade andEnvironment, as mentioned above. Further, theGATT/WTO introduced an extensive system, theDispute Settlement Understanding, to deal withtrade-related disputes. A dispute may arise whenone country adopts a trade policy measure or takessome action that one or more fellow-WTOmembers considers to be breaking the WTOagreements, or to be a failure to live up toobligations.

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74. Only a small number of cases brought to thedispute settlement system of GATT/WTO raisedquestions on environmental measures or humanhealth. Although the number of cases before theWTO Dispute Settlement Body has increasedsignificantly in comparison to the GATT,environmental issues have only been raised in avery limited number of cases. Among the landmarkcases on the relationship between trade andenvironment (since 1948) are the Thai cigarettescase, the Asbestos case, the Reformulated gasolinecase, the Beef hormones case, the Tuna-Dolphincases and the Shrimp-Turtle case, of which thelatter two will be discussed into more detail below.They dealt with a variety of environmentally-related issues such as health, the interpretation of‘like products,’ PPM-based measures, etc.

75. Tuna-Dolphin cases (1991, 1993). Since, on thehigh seas, some specific species of Tuna swim inthe proximity of dolphins, fishermen caughtdolphins when catching tuna. Unless specialprotective measures are used, dolphins die in theprocess and since they have no commercial value,they are just discarded as bycatch. The GATTDispute Settlement Panel ruled that a United Statesunilaterally imposed import embargo of ‘tuna notcaught in a dolphin-friendly manner’ was incontradiction with the GATT rules (article XI).Article XX of the GATT, which provides exceptionsfor measures that are ‘necessary’ to protect humanand animal life and health (XX(b)) and that are ‘inrelation to’ the ‘conservation of exhaustible naturalresources’ (XX(g)), could not be used as ajustification. The Tuna/Dolphin Panel held thatthese exceptions applied to measures which werethe least trade restrictive. The Panel found thatother less-trade restrictive measures, such asnegotiation of an international agreement, mighthave been undertaken in place of the unilateralmeasure. Widely criticized, the Tuna/Dolphinrulings were never adopted by the competent theGATT organ.

76. In the Shrimp/Turtle case (1998), the AppellateBody (“AB”) took a different approach than thePanel in the Tuna/Dolphin cases to unilaterallyimposed trade measures with the aim to protect theglobal environment. The US banned import ofshrimps from some south-east Asian countries,major shrimp exporters, in accordance with USlegislation, which prohibited the import of shrimpscaught without the use of a so-called ‘TurtleExcluding Device’. This Device is a specific netthat prevent the incidental catch and killing ofturtles, because many sea turtles are killed in netsthat shrimp trawlers use to catch shrimp.

77. The US listed all sea turtles as endangered orthreatened under the Endangered Species Act, andprohibited the taking of all endangered turtles notonly within the US and its territorial sea, but also onthe high seas. Further, a US law instructed the USSecretary of State to initiate negotiations dealingwith international agreements for the protectionand conservation of sea turtles and prohibited theimport of shrimps harvested with wrongtechnology. Four states –India, Pakistan, Malaysiaand Thailand– brought a complaint under the DSUarguing that the US measure violated Article XI.

78. The AB held that the import ban was not consistentwith article XI. With regard to article XX, the ABruled that this provision imposes two requirementson trade measures that condition market access onother countries' policies. First, such measures mustfit within one of article XX's specific exceptions.Second, such measures must be applied in amanner consistent with article XX's chapeau. Thatis, their application must neither give rise tounjustified or arbitrary discrimination betweencountries where the same conditions prevail, norcreate a disguised restriction on international trade.

79. In the Shrimp/Turtle case, the AB held that the USmeasure, which prohibited imports of shrimp fromany country that did not have a turtle-conservationprogramme comparable to that of the US, fitswithin the article XX(g) exception for conservationof exhaustible natural resources, and so decidedthat sea turtles are an exhaustible natural resource:

“132. We turn next to the issue of whether the livingnatural resources sought to be conserved by themeasure are “exhaustible” under Article XX(g). Thatthis element is present in respect of the five speciesof sea turtles here involved appears to be concededby all the participants and third participants in thiscase. The exhaustibility of sea turtles would in facthave been very difficult to controvert since all of theseven recognized species of sea turtles are todaylisted in Appendix 1 of the Convention onInternational Trade in Endangered Species of WildFauna and Flora (“CITES”). The list in Appendix 1includes “all species threatened with extinctionwhich are or may be affected by trade”.”

80. However, the AB also found that the US measureshad been applied in a way that violated theChapeau of article XX, which requires that anapplied measure should not constitute ‘arbitrary orunjustifiable discrimination between countrieswhere the same conditions prevail’ or a ‘disguisedrestriction on international trade’.

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Vienna Convention for the Protection of the Ozone Layer(1985)

Montreal Protocol on Substances that deplete the OzoneLayer (1987)

United Nations Framework Convention on Climate Change(UNFCCC) (1992)

Kyoto Protocol (Protocol to UNFCCC) (1997)

Convention on International Trade in Endangered Species ofWild Fauna and Flora (CITES) (1973)Convention on Biological Diversity (1992)

Cartagena Protocol on Biosafety (Protocol to the Conventionon Biological Diversity) (2000)International Tropical Timber Agreement (1994)

Basel Convention on the Control of TransboundaryMovements of Hazardous Wastes and their Disposal (1989)Rotterdam Convention on the Prior Informed ConsentProcedure for Certain Hazardous Chemicals and Pesticides inInternational Trade (PIC) (1998)Stockholm Convention on Persistent Organic Pollutants(POPs)(2001)

81. The AB ruled that the US measure was not fallingwithin the scope of the Chapeau. The trade ban bythe US forced other countries to comply with USlegislation, through implementing the same policy,in order to qualify for export to the US, and did nottake into consideration the different conditions thatmay occur in the territories of other members.Furthermore, the US had not undertaken the sameefforts to reach an international agreement with thesoutheast Asian states as it has done with Americanand Caribbean states. The AB therefore found thatthe US measures did not fall within the Chapeauand qualified the ban as ‘unjustifiablediscrimination,’ even more so while there wereother appropriate measures available with a similarimpact.

82. In 2001, three years after its Shrimp/Turtle ruling,the AB clarified and elaborated on its originalholding. One of the 1998 Shrimp/Turtlecomplainants, Malaysia, challenged the measuresthe US had taken in response to the AB decision.This 2001 AB ruling was in favour of the US andheld that the measures taken by the US inimplementing the earlier ruling (e.g., in entering aMemorandum of Understanding with southeastAsian states, had brought its turtle-friendly trademeasures in conformity with article XX).

11. Trade and Multilateral Environmental Agreements

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No explicit trade provisions. However, the obligation totake appropriate measures against the further depletion ofthe ozone layer can have implications for internationaltradeImport and export restrictions of certain substances to andfrom non-parties and export restrictions to non-parties oftechnology that produce ozone-depleting substances

No direct trade restrictions, but actions of countriesimplementing the UNFCCC could have significant tradeimplicationsImplementing policies with the objective of reducinggreenhouse-gas emissions will have an impact oninternational trade

Regulation of trade in certain species through permits andquotasNo explicit reference to any trade measures, but severalarticles create obligations that may result in such measuresImporting countries need to give consent for theintroduction of living modified organismsThere are no trade-measures in the ITTA itself. However,ITO’s mandate, promoting trade in tropical timber fromsustainable managed sources, could have an impact ontrade

Import and export restrictions on hazardous wastes to andfrom both parties and non-partiesInformation requirements and need to obtain consent fromthe importing party for certain the import of certainchemicalsImport and export restrictions for certain persistent organicpollutants

Biological Diversity

Table 2: MEAs and their impact on tradeEnvironmental agreement Trade measures

Ozone Layer

Climate Change

Transboundary Movement of Hazardous Wastes

83. As the amount of Multilateral EnvironmentalAgreements (“MEAs”) continues to grow, thenumber of such agreements that have an impact onfree trade continue to rise as well. At the moment,the WTO distinguishes almost forty multilateralenvironmental agreements that include trademeasures, the most important of which can befound in Table 2.

12. Trade-Restrictive Measures in MultilateralEnvironmental Agreements

84. A wide variety of reasons for why trade measuresare included in Multilateral EnvironmentalAgreements (“MEAs”) can be given. One of these isthat MEAs may simply want to control trade,because free trade provides incentives that threatenthe environment or encourage unsustainableexploitation of natural resources. For example,there might be a high demand for a bird that is anendangered species. Allowing free trade wouldscatter these birds all over the world and destroyany reproducing population that still exists. Nottolerating the trade in this species may then benecessary to ensure its survival.

85. Another reason can be that the MEA aims todiscourage environmentally harmful productionprocesses and the migration of industries tocountries with lower environmental standards. Forexample, environment polluting productionprocesses may be cheaper than environmentallyfriendly ones. To prevent environmental damage,a MEA may be agreed upon that contains measureswhich stimulate the use of the environmentallyfriendlier processes. Subsequently, trade measuresare needed to prevent industries from moving toanother country that is not a party to the MEA,producing there with environmentally damagingprocesses, which could be followed by exportingthe product to countries that are party to the MEA.

86. Additional objectives are to create marketopportunities and incentives to use or dispose of agood in an environmentally sound manner, and toinduce producers to internalize the costs to theenvironment caused by their products orproduction processes. Finally, the MEA may wantto limit the entry of a harmful substance into acountry.

87. Very detailed classifications of different kinds oftrade measures in MEAs do not exist. However, thedistinction between party and non-party measuresis frequently made, as well as the differencebetween specific and non-specific trade measures.Party measures are measures that only apply to

parties to the agreement, whereas non-partymeasures apply to countries that are no party to it.The terms ‘specific trade measures’ and ‘non-specific trade measures’ specify the differencebetween measures that can literally be read in theMEA (specific trade measures), and measures thatare not laid down in the MEA itself, but areintroduced by parties to fulfil the obligations of theagreement (non-specific trade measures).

13. Reconciling Trade Restrictive Provisions

with GATT 1994

88. Although no conflict between MEAs and theGATT/WTO has arisen so far in practice, the 1987Montreal Protocol, with its objective of phasing outchlorofluorcarbons (“CFCs”), may be used toillustrate how trade provisions in a MEA might, inthe future, conflict with the GATT/WTO, inparticular with articles I, III and XI of the 1994GATT. The examples given below are hypotheticaland should be regarded as describing areas ofpotential future conflict.

89. The Montreal Protocol allows its parties to tradewith other parties as well as non-parties, but withthe latter group only if certain conditions are met.The Montreal Protocol imposes restrictions onparties to trade with non-parties with products thatcontain CFCs. These trade provisions can conflictwith articles I and III of the 1994 GATT if the non-party is a WTO member. For instance, Country A -party to the Montreal Protocol and a WTO member- trades with Country B, also a party to the Protocoland a WTO-member, in a CFC-free product.However, Country C, a non-party to the MontrealProtocol but a WTO member, has ‘like products’but these are produced by using CFCs. ThereforeCountry A bans the trade with Country C, becausethe products were produced using CFCs, and it willonly trade with Country B, whose products areCFC-free.

90. As mentioned before, the GATT Dispute Panelsruled that ‘like products’ using differentmanufacturing methods do not affect thecharacteristics of the product. Hence the above-mentioned products are the same, even if thecountry uses a production method that involvesCFCs. Therefore, Country C can bring a claim ofdiscrimination (article I of the GATT). The sameapplies regarding article III of the GATT. However,the difference is that the imported product shouldbe treated the same as the domestic product. Anexample is when Country A imposes anenvironmental tax on the products of Country C,because they are produced using CFCs, and not on

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their own CFC-free product. Country C can thenfile a claim of discrimination. Both products are‘like products’ and therefore the product of CountryC should be treated equally as Country A’sdomestic product, if there would be noenvironmental exception in the GATT.

91. The trade rule can also be in conflict with article XIof the GATT, because the imposed trade ban byCountry A on the products of Country C forms aquantitative restriction according to article XI.

92. As noted, article XX(b) of the GATT provides anexception that can permit the trade measure. Themeasure, however, must be necessary to protecthuman, animal and plant life or health and it has tobe the least trade restrictive measure available. Toqualify for this exception there must be noalternative available that is less inconsistent withthe GATT Agreement. If the trade provisions in theMontreal Protocol can qualify for the necessity testand there are no less trade restrictive measuresavailable, then the trade provision can be approvedunder the WTO.

14. Regional Trade Agreements and the Environment

93. The WTO provides a global framework forinternational trade. Alongside the WTO, there is anincreasing number of regional and bilateral tradeagreements. Various reasons have been given forthis trend, one of them being that it appearsincreasingly difficult to come to trade agreementson the global level. Thus, a number of states revertto bilateral agreements regulating certain tradeaspects between them.

94. Further, regional free trade zones have been or arebeing established. In this Section, four regionaltrade agreements will be discussed, especiallyregarding their provisions dealing withenvironmental concerns. Regional tradeagreements have been concluded also in otherregions of the world. Examples are the Associationof Southeast Asian Nations (“ASEAN”), theEconomic Community of West African States(“ECOWAS”), the Common Market for Eastern andSouthern Africa (“COMESA”). The agreements aim,in general, at a closer economic cooperationbetween their member states. Until now, they havenot yet discussed the relationship between tradeand environment in detail (e.g., as has been donein the North American Free Trade Agreement or theEuropean Union), but it is supposed that similarquestions will arise in the future.

a) North American Free Trade Agreement

95. The North American Free Trade Agreement(“NAFTA”) is a free trade agreement betweenCanada, Mexico and the USA. It was adopted in1992 and entered into force on 1 January 1994. Itwas one of the first regional trade agreements thattook environmental concerns elaborately intoaccount.

96. NAFTA allows environmental measures thatinfluence trade on two different grounds. The firstground includes standard-related measures as wellas sanitary and phytosanitary measures. Thestarting point for these measures is that each of thethree countries is allowed to set its own levels ofprotection. If a party believes that a certain productis too dangerous it can even ban it, withoutbreaking any NAFTA rules. Of course, this partywill have to ensure that the ban is imposed on all‘like products’ and not only on, for example,imported ones.

97. The second category of measures is those taken toimplement some listed international environmentalagreements. Unfortunately, this list of internationalenvironmental agreements contains only a few ofthe international environmental agreements thatinfluence free trade.

98. Apart from these provisions, NAFTA contains somegeneral provisions on the environment, like theones in the Preamble and article 1114(2) in whichparties recognize that “it is inappropriate toencourage investment by relaxing... environmentalmeasures.” However, no enforcement measuresapply to this Article.

99. NAFTA also contains much-commented provisionsthat were made to protect investors’ interests, buthave been used to attack environmental legislation.Article 1110, for example, provides protectionagainst uncompensated expropriation ofinvestments. This has led, among others, to thecase of S.D. Myers vs Canada, in which Myers, acompany specialized in treating toxic waste, wasawarded damages for not being allowed to exporttoxic waste out of Canada. The Tribunal held thatthe Canadian law banning the export of PCBs wasnot for a legitimate environmental purpose, but forprotection of Canadian enterprises from UScompetition. Canada breached its NAFTAobligations and was liable to pay compensation. InJanuary 2004, the Federal Court of Canada rejecteda Canadian request to set aside the NAFTAarbitration decision.

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100. One of the side agreements to NAFTA, the NorthAmerican Agreement on EnvironmentalCooperation (“NAAEC”) focuses on environmentaleffects of trade. However, negotiations about thisside agreement only started after those on NAFTAhad been finished. It was then agreed that nochanges to NAFTA would be made anymore. Thismade it difficult to actually address trade-relatedissues in NAAEC.

101. In general, NAAEC can be divided into two parts.The first part establishes a framework forenvironmental cooperation between the threeparticipating governments by, for example,establishing a North American Commission onEnvironmental Cooperation (“NACEC”). This partalso lays down the broad environmental agenda forthe NAFTA countries and enumerates theecological challenges they face. The second partcontains a dispute settlement procedure. Thisdispute settlement procedure is to be used whenanyone claims that a party is not effectivelyenforcing its environmental laws.

102. The NAAEC’s main objectives are the promotion ofsustainable development, the encouragement ofpolicies preventing pollution, and improving thecompliance of environmental laws and policies.Furthermore, the NAAEC also promotes publicparticipation and transparency in the developmentand enhancement of environmental laws andpolicies. An important provision of the NAAEC isthat parties are obligated to maintain highenvironmental laws and are not allowed to lowertheir environmental standards to attract investment.In addition, each party agreed to enforce itsenvironmental laws and as support for that theycan establish a monitoring system.

b) Free Trade Agreement of the Americas

103. At the 1994 First Summit of the Americas held inMiami, the 34 states of the region started tonegotiate the Free Trade Area of the Americas(“FTAA”), in which barriers to trade and investmentwill be progressively eliminated. The states alsoagreed to finalize these negotiations before 2005.They adopted the Miami Summit's Declaration ofPrinciples and Plan of Action. Since then, eightFTAA Trade Ministerial meetings have taken place,as well as three other Summits of the Americas,most recently in January 2004.

104. A Trade Negotiations Committee has beenestablished and the various drafts of the FTAA havebeen elaborately discussed. There is currently athird draft, dated November 2001. The FTAA can

co-exist with bilateral and sub-regionalagreements, to the extent that the rights andobligations under these agreements are notcovered by or go beyond the rights and obligationsof the FTAA, and that the FTAA will be consistentwith the rules and disciplines of the World TradeOrganization (“WTO”).

105. The FTAA draft, as it stands now, contains almostthe same investment provisions as NAFTA. Asmentioned previously, this gives corporations theoption to hold the government liable for anydamages occurred through the implementation oflegislation. Another important area that the FTAAis focusing on is that of liberalization of services,such as education, environmental services, healthand energy.

106. The original 1994 mandate for the FTAA containeda promise to promote economic integration of thehemisphere in such a way as "to guaranteesustainable development while protecting theenvironment". A major Summit on SustainableDevelopment was held in Bolivia, in 1996, toensure that the principles of the 1992 Rio EarthSummit would be integral to the FTAA process.Out of that meeting, at which civil society groupsand environmentalists were notably absent, came65 initiatives know as the ‘Santa Cruz Action Plan,’and a new body, the OAS Inter-AmericanCommittee on Sustainable Development.However, no clear mandate for action evolvedfrom this process and as result it was dropped fromthe FTAA’s new mandate at the Santiago Summit in1998.

107. The Draft FTAA includes chapter VI, entitled‘Environment Provisions,’ but there are also stateswho do not wish to see the inclusion of such achapter at all. These states argue thatenvironmental issues are outside the FTAAnegotiation mandate. Also taking into account thatthe Declaration of Nuevo León which was adoptedin January 2004, at the Special Summit of theAmericas, which hardly includes any references toenvironment, it remains a highly contentious issue.What the final contents of the FTAA will be is stillvery much open to debate, as is its date ofadoption.

c) Mercado Común del Sur

108. The MERCOSUR, or Mercado Común del Sur(Southern Common Market), was created by Brazil,Uruguay, Paraguay and Argentina in March 1991,by the Treaty of Asunción. The MERCOSURoriginally was set up with the ambitious goal of

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creating a common market/customs unionbetween the participating countries on the basis ofvarious forms of economic cooperation that hadbeen taking place between Argentina and Brazilsince 1986. It is now a customs union, meaningthat all members have the same tariffs to theoutside world and is committed eventually tobecoming a full common market. In this sense theMERCOSUR aspires to regional integration like theEU, rather than a free trade area like NAFTA.

109. The Protocol of Ouro Preto of 1994 added much tothe institutional structure of MERCOSUR. Atransition phase was set to begin in 1995, and tolast until 2006, with a view to constituting thecommon market. In 1996, association agreementswere signed with Chile and Bolivia establishingfree trade areas with these countries. Furthermore,a dispute settlement system has been establishedwith a view to strengthen MERCOSUR’sinstitutionalization.

110. Regarding the environment, MERCOSUR onlycontained a general goal that the environment wasto be preserved. The MERCOSUR structure, thoughstill evolving, provides several environment-relatedinnovations. Mechanisms for public participationwere provided in the original Protocol of OuroPreto, through a Social and Economic AdvisoryCouncil, which exists as part of the MERCOSURinstitutional structure. This Council receivesinformation from labour, business and consumerrepresentatives.

111. More explicit environment and trade linkages aremade through various legal mechanisms thatcombine as elements of a developing regime.Several resolutions of the Grupo Mercado Común(Common Market Group) and decisions of theConsejo de Mercado Común (Common MarketCouncil) have touched upon issues such aspesticides, energy policies and transport ofhazardous products.

112. In 1992, the informal Reunión Especializada deMedio Ambiente (“REMA”) (Special year Meetingof the Environment), was established to analyzeand, if possible, harmonize, the environmentallaws of the parties. Later, REMA was elevated to anofficial subgroup of the Common Market WorkingGroup, called ‘the Environment’. The objective ofthis subgroup is to propose ways to protect theenvironment while avoiding violation of theconcept of free trade and similar conditions ofcompetitiveness apply in all member countries.This group has discussed issues such asenvironment and competitiveness, non-tariffbarriers to trade, and common systems ofenvironmental information.

113. Because of the work of this Working Group, theparties accepted a Framework Agreement on theEnvironment in 2001. The objective of theFramework Agreement is ‘sustainable developmentand environmental protection through thedevelopment of economic, social andenvironmental dimensions, contributing to a betterquality of environment and life for the people’.

114. The Framework Agreement focuses on increasedcooperation on shared ecosystems and upwardharmonisation of environmental managementsystems, among others, through cooperation on thedevelopment of instruments for environmentalmanagement. Besides, the Agreement containsprovisions for dispute settlement and for the futuredevelopment of protocols in three areas: quality oflife and environmental management, sustainablemanagement of natural resources andenvironmental policy.

115. In 2003, several events contributed to the furtherstrengthening of MERCOSUR. The newly electedpresidents of Argentina and Brazil put MERCOSURat the top of their political agenda. Among theinitiatives is the appointment of the ex-president ofArgentina as the President of the newly establishedCommittee of Permanent Representatives ofMERCOSUR.

d) European Union

116. In 1957, six European countries adopted the Treatyof Rome establishing the European EconomicCommunity, with the objective to establish aneconomic union between its member states. Sincethen, a number of major treaty revisions have takenplace, such as the Single European Act (1986), theTreaty on European Union (Maastricht 1992), andthe Amsterdam Treaty (1997).

117. These revision created a legal system between themember states which goes far beyond thoseestablished between sovereign states until now.The European Union (“EU”) is itself generatinglegislation which directly applies to Europeancitizens and confers specific rights on which theycan rely. The strengthening of the political ties,besides the economics, has become a significantpolicy of the EU as well.

118. The boost given to community integration had theeffect of prompting a vast enlargement process toinclude countries of central and eastern Europe. Asof 1 May 2004, the EU has been enlarged to 25members, and more accessions are expected in2007.

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119. At the heart of the EU lies a single market withcommon external tariffs. This makes the EU, in thefirst place, a regional trade agreement. Anextensive harmonization process of health, safetyand environmental standards has been takingplace, mainly in an ‘upwards’ direction, that is,most standards were put at a rather high level.States that want to join the EU have to adapt theirstandards to the EU standards.

120. The EU allows its member states to ban importsfrom other member states that do not comply withstandards for health, safety and environmentalprotection. Most important EU trade andenvironment cases before the European Court ofJustice have addressed the conflict between thetreaty articles ensuring the free movement of goodsand services and exceptions for environmentalprotection.

121. EU member states are allowed to impose higherstandards that restrict trade, but this restriction hasto be proportional to the threat that is posed tohealth, safety or environment. Nevertheless, as inNAFTA, (disproportional) trade restrictionsimposed to protect the environment have led tocourt rulings against certain environmentallegislation of EU member states.

122. The 1997 Amsterdam Treaty included the principleof sustainable development as one of the EuropeanCommunity’s aims and makes a high degree ofenvironmental protection one of its absolutepriorities. To promote global sustainability, the EUendeavours to integrate environmental concerns inits external relations and trade policies. Theyattempt to focus on developing stronger globalcooperation on environmental issues and onbettering the balance between liberalized traderules and multilateral environmental agreements.The 2002 sixth action programme for theenvironment sets out the priorities for the EuropeanCommunity up to 2010. Four areas are highlighted:climate change, nature and biodiversity,environment and health, and the management ofnatural resources and waste. Measures to achievethese priorities are outlined: improving theapplication of environmental legislation, workingtogether with the market and citizens and ensuringthat other Community policies take greater accountof environmental considerations.

123. The range of environmental instruments availablehas expanded as environmental policy hasdeveloped. Not only has the Community adoptedframework legislation providing for a high level ofenvironmental protection while guaranteeing theoperation of the internal market, but it has

introduced a financial instrument (the LIFEprogramme) and technical instruments, such aseco-labelling, the Community system ofenvironmental management and auditing, thesystem for assessment of the effects of public andprivate projects on the environment, and thecriteria applicable to environmental inspections inthe member states.


124. In this Section, two examples of national legislationwill be reviewed. The first one is the 1992Namibian Sea Fisheries Act, which contains quotasfor fisheries. These quotas can have a limiting effecton free trade, but are in favour of conserving theenvironment. The second refers to Braziliancompetition regulations; however, the environmentis not specifically named in this regulation.

125. The Namibian Sea Fisheries Act, adopted in 1992,provides for regulations for the conservation of themarine ecology and the manageable exploitation,conservation, protection and promotion of certainmarine resources and for that purpose to providefor the exercise of control over sea fisheries.

126. The Act establishes a Sea Fishery Advisory Council(Section 8). According to Sections 15 and 16, theMinister shall, in collaboration with the Sea FisheryAdvisory Council, determine the total allowablecatch of certain species, which shall be availablefor the allocation of quotas. Before a person canget a quota, one has to turn to the Minister for aright of exploitation. When this right has beenreceived, one can apply to the Minister for anallocation of a quota.

127. Furthermore the Namibian Sea Fisheries Actprovides in Section 26 for the licensing of factoriesand vessels, and Section 27 provides the Ministerwith the opportunity to grant fishing permits toforeign vessels on the basis of an agreement withthe state to which the vessel belongs.

128. The Sea Fisheries Act of Namibia is a goodexample of a provision with the objective to protectthe environment but which has an effect on freetrade.

129. The Brazilian Congress approved a new antitrustlaw in 1994. This law simplified the regulatoryframework and strengthened the mechanisms ofenforcement of the antitrust laws. The law defineswhen there is a violation of the economic order, inother words, when the competition is beingthreatened. Harming the competition, dominatingthe relevant market of goods and services,

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increasing the prices in an arbitrary manner, orabusing a dominant position in the market are notallowed.

130. The antitrust law also states that, among others, oneof the following acts can constitute liability ofviolating the antitrust provisions: creating obstaclesto the formation or development of competingbusiness, erecting barriers to the entry ofompetitors, or hoarding or impeding access bycompetitors to patents and technology.

131. The antitrust law provides rules that regulate trade.It tries to create a sound economic environment forthe consumers. Furthermore, the antitrust lawpromotes free trade, as it prohibits the creation of

trade barriers for new businesses to enter themarket. This rule is not only applicable to Braziliancompanies, but also to international companies. Ifa Brazilian company has the right to access themarket without being barred, article III of the GATTdemands the same treatment for internationalcompanies.

Prof. Gerhard Loibl, Chair of International Law and European Union Law, Diplomatische Akademie,Vienna

Barbara Ruis, Legal Officer, Division of Policy and Development and Law, UNEP

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Resources

Internet Materials

ASSOCIATION OF SOUTHEAST ASIAN NATIONS available at http://www.aseansec.org/home.htm

DEVELOPMENT GATEWAY available at http://home.developmentgateway.org/

ECONOMIC COMMUNITY OF WEST AFRICAN STATES available at http://www.ecowas.int

EUROPEAN COMMISSION; TRADE DIRECTORATE GENERAL available at http://europa.eu.int/comm/dgs/trade/index_en.htm

FREE TRADE AREA OF THE AMERICAS available at http://www.ftaa-alca.org

INTERNATIONAL CENTRE FOR TRADE AND SUSTAINABLE DEVELOPMENT ON TRADE AND ENVIRONMENT available at http://www.trade-environment.org

INTERNATIONAL TRADE CENTRE UNCTAD/WTO available at http://www.intracen.org

INTERNATIONAL TRADE INSTRUMENTS, TREATIES, CONVENTIONS, MODEL LAWS AND RULES available athttp://www.jus.uio.no/lm/treaties.and.organisations/lm.chronological.html

MERCOSUR (in Spanish and Portuguese only) available at http://www.mercosur.org.uy/

NORTH AMERICAN AGREEMENT ON ENVIRONMENTAL COOPERATION available at http://www.cec.org/pubs_info_resources/law_treat_agree/naaec/index.cfm?varlan=english

OECD; TRADE DIRECTORATE available at http://www.oecd.org/ech

REVISED GUIDE TO INTERNATIONAL TRADE LAW SOURCES ON THE INTERNET

available at http://www.llrx.com/features/trade3.htm

S.D. MYERS VS CANADA available at http://www.appletonlaw.com/4b2myers.htm

TRADE AND DEVELOPMENT CENTRE WORLD BANK/WTO available at http://www.itd.org

TRADE AND ENVIRONMENT DATABASE available at http://gurukul.ucc.american.edu/ted/ted.htm

UN COMMISSION ON INTERNATIONAL TRADE LAW available at http://www.uncitral.org

UN CONFERENCE ON TRADE AND DEVELOPMENT available at http://www.unctad.org

UNEP-ECONOMICS AND TRADE BRANCH available at http://www.unep.ch/etu

WORLD TRADE ORGANIZATION available at http://www.wto.org

Text Resources

D.G. Craig,N.A. Robinson & K. Kheng-Lian (Eds.), CAPACITY BUILDING FOR ENVIRONMENTAL LAW IN THE ASIAN AND PACIFIC

REGION APPROACHES AND RESOURCES VOLUME II, (Asian Development Bank, 2002).

D. Hunter, J. Salzman & D. Zaelke, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY, (New York FoundationPress, Second Edition 2002).

E. Brown Weiss & J.H. Jackson (Eds.), RECONCILING ENVIRONMENT AND TRADE, (Transnational Publishers Inc., 2001).

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G. Loibl, INTERNATIONAL ECONOMIC LAW IN INTERNATIONAL LAW, (Oxford University Press, 2003).

J.H. Jackson, THE JURISPRUDENCE OF GATT AND THE WTO: INSIGHT ON TREATY LAW AND ECONOMIC RELATIONS, (Cambridge University Press, First edition, reprinted 2002).

M. Stillwell, Environment, Trade and Sustainable Development: An Overview of Key Issues Arising From the WorldSummit on Sustainable Development and the WTO Doha Work Programme, in a BACKGROUND PAPER FOR THE MARCH

2003 UNEP CAPACITY BUILDING MEETING ON ENVIRONMENT TRADE AND SUSTAINABLE DEVELOPMENT FOR THE LATIN AMERICAN

AND CARIBBEAN REGION, (2003).

P.M. Johnson & A. Beaulieu, THE ENVIRONMENT AND NAFTA: UNDERSTANDING AND IMPLEMETNING THE

NEW CONTINENTAL LAW, (Washington D.C., First edition 1996).

Richard W. Emory, Jr., Probing the Protection in the Rotterdam Convention on Prior Informed Consent & Transposing to Enforceable National Laws the Obligations of the PIC and POPs Conventions for Imports and Exports, in COLORADO

JOURNAL OF INTERNATIONAL ENVIRONMENTAL LAW AND POLICY, [2000 & 2001 Yearbooks].

R. Housman, Reconciling Trade and the Environment: Lessons from the North American Free Trade Agreement, inENVIRONMENT AND TRADE 3, (UNEP 1994).

R.L. Revesz, P. Sands & R.B. Stewart (Eds.), ENVIRONMENTAL LAW, THE ECONOMY AND SUSTAINABLE DEVELOPMENT, THE UNITED

STATES, THE EUROPEAN UNION AND THE INTERNATIONAL COMMUNITY, (Cambridge University Press, First edition 2000).

R. Twum-Barima & L.B. Campbell, Protecting the Ozone Layer through Trade Measures: Reconciling the Trad Provisions of the Montreal Protocol and the Rules of GATT, in ENVIRONMENT AND TRADE 6 (UNEP 1994).

S. Panitchpakdi, Achieving win-win-win, in Our Planet, Globalization, Poverty, IN TRADE AND ENVIRONMENT VOLUME 13,NO. 4, (UNEP 2002).

Sungjoon Cho, Breaking the Barrier Between Regionalism and Multilateralism: A New Perspective on TradeRegionalism, in HARVARD INTERNATIONAL LAW JOURNAL, VOLUME 42, NUMBER 2, (Summer 2001).

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ENERGY, RENEWABLE ENERGYAND NUCLEAR ENERGYChapter 25

25. ENERGY, RENEWABLE ENERGY AND NUCLEARENERGY

I. Introduction

1. Challenges of Sustainable Energy

1. Over the last two centuries, industrial evolutionresulted in many innovations for humancivilization. Today, the ready availability ofplentiful, if only affordable energy would allowmany people to enjoy unprecedented comfort,mobility and productivity. However, access to anduse of energy varies widely among countries. Twobillion people, representing one third of the worldpopulation, are deprived from taking advantage ofthis commericial form of technology. Mostimportantly for this Chapter, current energygeneration and use are accompanied byenvironmental impact at local, regional and globallevels.

2. Sustainable energy can be defined as energyproduced and used in ways that support humandevelopment over the long term, in all its social,economic and environmental dimensions.However, as noted in the Agenda 21, much of theworld’s energy is currently produced andconsumed in ways that could not be sustained if

technology were to remain constant and overallquantities were to increase substantially. Aspects ofthe unsustainability of the current system include:

• Commercial fuels including electricity are notuniversally accessible,

• The current energy system is not sufficientlyreliable or affordable to support widespreadeconomic growth, and

• Negative local, regional and globalenvironmental impacts of energy productionand use threaten the health and well being ofcurrent and future generations.

3. Since the 1970s, serious warnings about the "limitsto growth" sounded alarm around the world withlittle effect. Resource exploitation and wastefulconsumption habits diminished non-renewableenergy resources at an accelerated pace. Still, theamounts of energy needed are increasing. Unlesspolicies change, energy demand will continue togrow steadily, whereby fossil fuels will continue todominate the energy mix and most of the growth indemand will come from developing countries.Energy use by developing countries has increasedthree to four times as quickly as that by theOrganization for Economic Cooperation andDevelopment (“OECD”) countries. This is a resultof lifestyle changes due to rising incomes andhigher population growth. Consequently, the shareof developing countries in global commercialenergy use increased from 13% in 1970 to 30% in1998.

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ENERGY, RENEWABLE ENERGYAND NUCLEAR ENERGY Chapter 25

4. One of the most serious consequences of the fossilfuel age is the unbalancing of the biosphere andclimate to a degree that is irreversibly affecting ourlife base. Growing deserts and acid rains spoilfertile lands. Rivers, lakes and ground waters arepoisoned, which spoils badly needed drinkingwater for a growing world population. Increasinglyfrequent weather disasters, retracting glaciers,melting ice caps, landslides, more violent storms,and flooding of highly populated coastal areas andislands endanger people and species. All this to acertain extent is linked to the incessantly growingfossil fuel emissions, which cause global warming.

5. The Brundtland Report not only introduced theconcept of sustainability but also placed strongemphasis on the importance of energy generationand use as part of this crucial concept. TheBrundtland Report considered energy to be a majorfeature of sustainability, and identified thefollowing key elements:

• Sufficient growth of energy supplies to meet theneeds of humanity (including an allowance fordevelopment in non-developed countries);

• Energy efficiency and conservation measures;• Public health, recognizing the safety risks posed

by use of certain energy types; and• Protection of the biosphere and elimination of

local pollution problems.

6. The current unsustainable practices in energy useand production have led to most pressingenvironmental problems, such as:

• Climate change, for which energy production isover 60% responsible;

• Acid rain, caused primarily by coal burning;• Increasing desertification, caused by

unsustainable but inevitable use of firewood forheating and cooking in developing countries;

• Ozone depletion, caused by the use ofhydrofluorocarbons in refrigerators and air-conditioning units;

• Risks of nuclear radiation where nuclear energyis used and particularly the problem of nuclearwaste;

• Soil pollution, caused by oil and geothermalexploration and production;

• Loss of habitat, caused by large-scalehydropower projects;

• Pollution of the sea, caused by oil spills fromlarge ocean-going tankers;

• Urban air pollution, caused by fossil-fuelburning; and

• Significant public health risks from use ofbiomass energy (especially where poorventilation is widespread).

7. Some of these problems have already been, tosome extent, tackled by the introduction ofnational legislation and/or internationalconventions. ln Europe, acid rain is controlled bythe 1979 Convention on Long-RangeTransboundary Air Pollution together with itsProtocols. Oil spills and oil pollution at sea areregulated by the International Convention for thePrevention of Pollution from Ships (“1973MARPOL”) and the 1982 Uinted NationsConvention on the Law of the Sea. Ozonedepletion is being tackled by the 1985 ViennaConvention on the Protection of the Ozone Layerand its 1987 Montreal Protocol on substances thatdeplete the Ozone Layer. A Climate Change regimehas been introduced through the 1992 UnitedNations Framework Convention on ClimateChange and reinforced by the 1997 KyotoProtocol. Also, the 1994 Convention onDesertification touches upon the issue of climatechange and thus energy. The instruments regulatingnuclear safety issues will be discussed later in thisChapter. However, notwithstanding the number ofagreements that touch upon different aspects ofenergy generation and consumption, energy as anissue, has not, of its own been comprehensivelyaddressed by an international convention up tonow.

2. Energy Efficiency and Renewable Energies

8. The Brundtland Report stated that energy efficiency“should be at the cutting edge of national energypolicies for sustainable development.” However,for a number of reasons, the technical andeconomic potentials of energy efficiency havetraditionally been under-realized. Today, the globalenergy efficiency of converting primary energy touseful energy is about one-third. In other words,two-thirds of primary energy is dissipated in theconversion processes, mostly as low-temperatureheat. Further losses occur in the end-use of usefulenergy. Numerous and varied economicopportunities exist for energy efficiencyimprovement, particularly in this final conversionstep from useful energy-to-energy services. Suchmeasures include structural changes in economiesby shifts to less energy-intensive industrialproduction and switching to highly efficientappliances, machinery, processes, vehicles, andtransportation systems. Taking advantage of theseopportunities has the largest potential for cost-effective efficiency improvements, particularly indeveloping countries and economies in transition,where the potentials of efficiency gains are highest.

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9. The Brundtland Report further emphasized theneed to shift the current energy mix more towardsrenewable energy resources. Such resourcesinclude solar energy (space and water heating andphotovoltaics), wind energy, biomass, geothermal,small-scale hydropower, wave and tidal power.However, many political issues and vested interestsare at stake and do not allow for radical change.Many oil-producing and oil-dependent nations arereluctant to accept the need to reduce their heavyreliance on fossil fuels fearing economicdetriments. It is, therefore, no wonder that despitebest intentions on the part of the internationalcommunity, energy issues were neither specificallyincluded as a specific chapter in Agenda 21, norelaborated as a key aspect in the MillenniumDevelopment Goals of the United Nations.

10. Environmental law is traditionally focused on theenvironmental harm caused by energy use andproduction, rather than on energy itself. In relationto energy efficiency and renewable energies,promotion thereof is stipulated in variousagreements, such as article 2 of the 1997 KyotoProtocol. However, even though a strong factualinterrelationship exists, international agreementsadopted on climate change do notcomprehensively address the energy side of theequation; and the link between desertification andenergy has not even been officially recognized.This is particularly unfortunate, since scientific andtechnological advances in the energy sector haveproceeded apace over the past decade. In terms ofrenewable energies, the efficiency of photovoltaiccells has increased dramatically, enabling the cellsto be cost-effective in many regions of the world.New efficient designs of wind generators havebeen developed to enable the establishment ofoffshore wind generators. As far as energyefficiency and conservation is concerned, newsuper-efficient motors have been manufactured,enabling substantial energy savings in a wide rangeof industrial and domestic products possible. Also,much progress has been made in the developmentof alternatives to petroleum for motor fuels, such asethanol, methanol and hydrogen.

11. The WSSD Plan of Implementation adopted at theWorld Summit of Sustainable Development(“WSSD Plan”) in Johannesburg in 2002, makesreferences to energy efficiency and renewableenergy. However, the WSSD Plan does not containany binding national commitments in relation toenergy, and the move to impose a mandatorypercentage increase in the use of renewable energyresources was rejected. Nevertheless, it is part ofthe environmental instruments referred to as non-

legally binding, which traditionally has played animportant role in paving the way to stronger legalcommitments. The WSSD Plan introduced anumber of provisions relating to energy in itschapter II on “poverty reduction” (clause 9) andchapter III on “production and consumption”(clause 20). The WSSD Plan calls upongovernments to:

• Take joint efforts to improve access to reliableand affordable energy services,

• Promote sustainable use of biomass, and• Support the transition to cleaner use of fossil

fuels. Some of the commitments made by thecountries with regard to sustainable energy areto: - Promote the internalization of

environmental costs and the use ofeconomic instruments,

- Establish domestic programme of energyefficiency,

- Accelerate the development, dissem-ination and employment of affordable andcleaner energy efficiency and energyconservation technologies,

- Recommend that international financialinstitutions’ and other agencies’ policiessupport countries to establish policy andregulatory frameworks that create a levelplaying field,

- Support efforts to improve the functioning,transparency and information aboutenergy markets with respect to bothsupply and demand,

- Strengthen and facilitate, as appropriate,regional cooperation arrangements forpromoting cross-border energy trade,

- Implement transport strategies forsustainable development, and

- Promote investment and partnerships forthe development of sustainable energyefficiency, and multi-modal transportationsystems.

12. As seen above, most of the issues resulting fromunsustainable use and production of energy areimplicitly dealt with in other areas ofenvironmental law and thus in other chapters ofthis Training Manual. With regards to renewableenergies, no comprehensive international regime isyet in place. This, however, does not derogate fromthe great importance to be attached in this sourceof energy particularly to the developing world. Forthe purposes of this Manual, this chapter willconsequently mainly deal with nuclear energysafety and introduce the Energy Charter Treaty,which is the only legally binding instrument

providing for inter-governmental cooperation inthe energy sector. In the second part, examples ofnational legislation in the fields of renewableenergies and energy efficiency will be discussed.

3. Nuclear Energy

Safety Risks Posed by Energy Use and Production

13. As seen above, the Brundtland Report identifiedpublic health and safety of energy use andproduction as one of the key elements ofsustainability. This touches upon the issue ofnuclear energy and nuclear safety.

On 26 April 1986, as a result of a combination offactors, a sudden, uncontrollable surge in power tookplace at Unit 4 of the Chernobyl nuclear powerplant, resulting in the destruction of the reactor and afire in the graphite moderator. This caused aprolonged release of radioactive materials into theenvironment and was followed by further releases,associated with the high temperatures reached in thecore, between day seven and ten after the initialevent.

Radioactive contamination affected the territories of19 subjects of the Russian Federation, with a totalpopulation of over 30 million people. The area ofthese territories contaminated was more than 56thousand square kilometres. Approximately 3 millionpeople live in the contamination zone.

Over an area of 3,000 hectares which received highdoses, 25% to 40% of pine forests died, and 90% to95% of the trees showed some damage toreproductive functions. Direct deposition from theChernobyl plume occurred in rivers, lakes and seas.Livestock and farm animals in this exclusion zonewere destroyed and buried. In the resettlement zone,where contamination levels are lower, it has stillbeen necessary to suspend most agriculturalactivities.

14. The accident at the Chernobyl nuclear power plantwas a major humanitarian catastrophe of thetwentieth century. However, it was not the firstsuch accident. In 1979, a malfunction in thecooling system at the Three Mile Island NuclearGenerating Station (Pennsylvania, USA) led to themost serious commercial nuclear accident inAmerican history and paved the way for reforms inthe way nuclear power plants are operated andregulated. As these accidents show, modernnuclear technology creates unavoidable risks for allstates, whether or not they choose to use this formof energy. Nuclear installations are potentiallyhazardous undertakings whose risk to health, safetyand the environment is best met by regulation.

Since the consequences of failure may cause injuryor pollution damage to other states and the globalenvironment, international regulation, the setting ofcommon standards, supervised by internationalinstitutions, offers the best means of ensuring agenerally accepted minimum level ofenvironmental protection.

15. The International Atomic Energy Agency (“IAEA”)was established in 1956, in response to the deep-rooted fears and great expectations resulting fromthe discovery of nuclear energy. Originally, IAEA’smain task was to encourage and facilitate thedevelopment and dissemination of nuclear power,ensuring that nuclear power is used for peacefulpurposes only. To set standards for health and safetyin collaboration with other international agencieswas a secondary responsibility. The Chernobylaccident, however, resulted in a significantalternation of the IAEA’s priorities. The IAEAprovided the main forum for consideration ofmeasures made necessary by the accident. TheIAEA thus should promote better exchanges ofinformation among states on safety and accidentexperience, develop additional safety guidelinesand enhance its capacity to perform safetyevaluation and inspections on request.


1. International Legal Regimes: Nuclear

a) Convention on Early Notification of a

Nuclear Accident

16. The Convention on Early Notification of a NuclearAccident (“1986 Nuclear Accident Convention”)was adopted and entered into force in 1986,following the Chernobyl nuclear plant accident. Itestablishes a notification system for nuclearaccidents that may potentially be of radiologicalsafety significance for another state. The 1986Nuclear Accident Convention requires states toreport the accident's time, location, radiationreleases, and other data essential for assessing thesituation. Notification is to be made to affectedstates directly or through the IAEA, and to the IAEAitself. Reporting is mandatory for any nuclearaccident involving facilities and activities listed inarticle 1. Pursuant to article 3, states may notifyother accidents as well. The five nuclear-weaponStates (China, France, Russia, the United Kingdom,and the United States) have all declared their intentto also report accidents involving nuclear weaponsand nuclear weapons tests.

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b) Convention on Assistance in the Case of a Nuclear Accident Emergency or a

Radiological Emergency

17. The Convention on Assistance in the Case of aNuclear Accident Emergency or RadiologicalEmergency (“1986 Nuclear EmergencyConvention”) was also adopted following theChernobyl nuclear plant accident and entered intoforce in 1987. The 1986 Nuclear EmergencyConvention sets out an international framework forcooperation among states parties and with theIAEA to facilitate prompt assistance and support inthe event of nuclear accidents or radiologicalemergencies. The Convention requires states tonotify the IAEA of their available experts,equipment, and other materials for providingassistance. In case of a request, each state partydecides whether it can render the requestedassistance as well as its scope and terms. Assistancemay be offered without costs taking into account,inter alia, the needs of developing countries andthe particular needs of countries without nuclearfacilities. The IAEA serves as the focal point forsuch cooperation by channeling information,supporting efforts, and providing its availableservices.

c) Convention on the Physical Protection of Nuclear Material

18. The Convention on the Physical Protection ofNuclear Material (“1979 Nuclear MaterialConvention”) entered into force in 1987. The 1979Nuclear Material Convention obliges Contractingstates to ensure during international nucleartransport the protection of nuclear material withintheir territory or on board their ships or aircraft. Atthe first Review Conference in 1992 the partiesconsidered, in particular, that the 1980 NuclearMaterial Convention provides an appropriateframework for international cooperation inprotection, recovery and return of stolen nuclearmaterial and in the application of criminalsanctions against persons who commit criminalacts involving nuclear material.

d) Joint Convention on the Safety of Spent FuelManagement and on the Safety of Radioactive Waste Management

19. The Joint Convention on the Safety of Spent FuelManagement and on the Safety of RadioactiveWaste Management (“1997 Joint SafetyConvention”) was adopted in 1997, and enteredinto force in June 2001. The 1997 Joint Safety

Convention is the first international instrument thatdeals with the safety of management and storage ofradioactive waste and spent fuel in countries withand without nuclear programme. The Conventionalso considerably elaborates on the existing IAEAnuclear safety regime and promotes internationalstandards in the area. The 1997 Joint SafetyConvention is aimed at achieving and maintaininga high level of safety in spent fuel and radioactivewaste management, ensuring that there areeffective defenses against potential hazards duringall stages of management of such materials, andpreventing accidents with radiologicalconsequences. The Convention covers the safety ofspent fuel and radioactive waste management fromcivilian applications. It also applies to themanagement of military or defense-originatedspent fuel and radioactive waste if and when suchmaterials are transferred permanently to andmanaged within exclusively civilian programme.

20. The 1997 Joint Safety Convention calls upon thecontracting parties to review safety requirementsand conduct environmental assessments, both atexisting and proposed spent fuel and radioactivewaste management facilities. It provides for theestablishment and maintenance of a legislative andregulatory framework to govern the safety of spentfuel and radioactive waste management. The 1997Joint Safety Convention establishes rules andconditions for the transboundary movement ofspent fuel and radioactive waste that, inter alia,require a state of destination to have adequateadministrative and technical capacity andregulatory structure to manage spent fuel orradioactive waste in a manner consistent with theConvention. It obligates a state of origin to takeappropriate steps to permit re-entry into its territoryof such material if a transboundary movementcannot be completed in conformity with theConvention.

21. The 1997 Joint Safety Convention provides for abinding reporting system that will address themeasures taken to implement obligations under theConvention, including reporting on nationalinventories of radioactive waste and spent fuel.Each contracting party shall take, within theframework of its national law, the legislative,regulatory, and administrative measures and othersteps necessary to implement its obligations underthe 1997 Joint Safety Convention. In the event of adisagreement between two or more contractingparties concerning the interpretation or applicationof the Convention, the contracting parties shallconsult within the framework of a Meeting of theParties (“MOP”) with a view to resolving the

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disagreement. In the event that the consultationsprove unproductive, recourse can be made to themediation, conciliation and arbitrationmechanisms provided for in international law,including the rules and practices prevailing withinthe IAEA.

e) The Convention on Nuclear Safety

22. The Convention on Nuclear Safety (“1994 NuclearSafety Convention”) entered into force in 1996.The 1994 Nuclear Safety Convention’s aim is tolegally commit participating states operating land-based nuclear power plants to maintain a highlevel of safety by setting international benchmarksto which states would subscribe, and to maintain ahigh level of nuclear safety in civil nuclear powerplants and related facilities to protect individuals,society and the environment from harmfulradiation and to prevent or mitigate accidents.

23. The 1994 Nuclear Safety Convention reaffirms thatresponsibility for nuclear safety rests with the statehaving jurisdiction over a nuclear installation. TheConvention requires each party to establish andmaintain a national legislative and regulatoryframework for the safety of nuclear installations,which includes a system of licensing. ThePreamble calls for a “commitment to theapplication of fundamental safety principles fornuclear installations rather than of detailed safetystandards.”

24. The obligations of the parties are based, to a largeextent, on the principles contained in the IAEASafety Fundamentals document "The Safety ofNuclear Installations.” These obligations cover, forexample, siting, design, construction, operation,the availability of adequate financial and humanresources, the assessment and verification of safety,quality assurance and emergency preparedness.

25. Parties are also required to take ‘appropriated steps’to ensure that

• Safety at nuclear plants is given due priority, • Levels of trained staff are adequate; • Quality assurance programmes are established; • Comprehensive and systematic safety

assessments are carried out periodically; • Radiation exposure is as low as reasonable

achievable; and • Emergency plans are prepared.

26. The 1994 Nuclear Safety Convention is anincentive instrument. It is not designed to ensurefulfillment of obligations by parties through control

and sanction but is based on their common interestto achieve higher levels of safety, which will bedeveloped and promoted through regular Meetingsof the Parties (“MOP”). The Convention obligesparties to submit reports on the implementation oftheir obligations for "peer review" at MOPs to beheld at the IAEA. This mechanism is the maininnovative and dynamic element of the 1994Nuclear Safety Convention.

2. International Cooperation on Energy

a) The Energy Charter Treaty

27. After the nuclear catastrophe at Chernobyl and inthe presence of other unsafe nuclear power plantsin the former Soviet Union and other central andEastern European states, Western countries inEurope have become strongly interested in thedevelopment of energy and nuclear energy inEastern Europe. Furthermore, the competinginterests of the necessity to import fossil fuels andthe need to remain independent from foreignpowers stimulated East/West interstate cooperationin Europe.

28. The 1994 Energy Charter Treaty was adopted in1994, and entered into force in 1998. As ofNovember 2005 the 1994 Energy Charter Treatyhas 46 parties. The Treaty was developed on thebasis of the European Energy Charter of 1991. Itsmain purpose is the guaranteed delivery of fossilfuels from the East to the West by means ofinvestment protection, liberal trade connections,transit facilities and dispute settlement. Thefundamental aim of the 1994 Energy Charter Treatyis to strengthen the rule of law on energy issues,thus minimizing the risks associated with energyrelated investments and trade. The 1994 EnergyCharter Treaty is the only one legally bindingmultilateral instrument dealing specifically withinter-governmental cooperation in the energysector. The treaty focuses on several areas:

• Protection and promotion of foreign energyinvestments,

• Free trade in energy materials, • Freedom for energy transit for pipelines and

grids, • Reducing the negative impact of energy cycle

through improving energy efficiency, and • The mechanisms for the resolution of State-to-

State or Investor-to-State disputes.

29. Environmental issues, including energy efficiency,are limited to article 19, which reads in pertinentpart:

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1994 Energy Charter TreatyArticle 19

(1) In pursuit of sustainable development and takinginto account its obligations under those internationalagreements concerning the environment to which it isparty, each Contracting Party shall strive to minimize inan economically efficient manner harmfulEnvironmental Impacts occurring either within oroutside its Area from all operations within the EnergyCycle in its Area, taking proper account of safety. Indoing so each Contracting Party shall act in a Cost-Effective manner. In its policies and actions eachContracting Party shall strive to take precautionarymeasures to prevent or minimize environmentaldegradation. The Contracting Parties agree that thepolluter in the Areas of Contracting Parties, should, inprinciple, bear the cost of pollution, includingtransboundary pollution, with due regard to the publicinterest and without distorting Investment in the EnergyCycle or international trade. Contracting Parties shallaccordingly:

“[...[(d) have particular regard to Improving Energy Efficiency, to developing and using renewable energy sources, to promoting the use of cleaner fuels and to employing technologies and technological means that reduce pollution.[...]”

30. Improving Energy Efficiency is defined in article19(3)(c) as “...acting to maintain the same unit ofoutput (of a good or service) without reducing thequality or performance of the output, whilereducing the amount of energy required to producethat output.”

Unfortunately, the wording of article 19 is phrasedin a non-binding form. There is no possibility ofinternational enforcement of any of theseobligations and adherence by contracting partiescan be regarded as discretionary. Furthermore, it isindicated that such environmental obligations areonly secondary to economic considerations. Thus,each contracting party must strive to minimizeharmful environmental impacts "in aneconomically efficient manner".

b) The Energy Charter Protocol on Energy Efficiencyand Related Environmental Aspects (“PEEREA”)

31. The Energy Charter Protocol on Energy Efficiencyand Related Environmental Aspects (“1994PEEREA”) was added to the 1994 Energy CharterTreaty and was drawn up as a declaration ofpolitical intent to promote East-West energycooperation. As of November 2005 it has 46parties.

32. 1994 PEEREA requires its parties to formulate clearpolicy aims for improving energy efficiency andreducing the energy cycle’s negativeenvironmental impacts. These obligations arecontained in articles 3, 5 and 8. Article 3 requiresthe parties to develop and implement energyefficiency policies, laws and regulations, whilearticle 8 states that each party shall develop,implement and regularly update energy efficiencyprogrammes best suited to its circumstances.

33. The major parts of article 3 read as follows:

“[...](2) Contracting Parties shall establish energy efficiencypolicies and appropriate legal and regulatoryframeworks which promote, inter alia: (a) efficient functioning of market mechanismsincluding market-oriented price formation and a fullerreflection of environmental costs and benefits; (b) reduction of barriers to energy efficiency, thusstimulating investments; (c) mechanisms for financing energy efficiencyinitiatives; (d) education and awareness; (e) dissemination and transfer of technologies; (f) transparency of legal and regulatory frameworks.[…](3) Contracting Parties shall strive to achieve the fullbenefit of energy efficiency throughout the EnergyCycle. To this end they shall, to the best of theircompetence, formulate and implement energyefficiency policies and cooperative or coordinatedactions based on Cost-Effectiveness and economicefficiency, taking due account of environmentalaspects.[...]”

34. Through the implementation of 1994 PEEREA, the1994 Energy Charter Treaty provides economies intransition with a menu of good practices and aform in which to share experiences and policyadvice on energy efficiency issues with leadingOECD states. Within this form, particular attentionis paid to certain aspects of national energyefficiency strategy, such as taxation, pricing policyin the energy sector, environmentally relatedsubsidies and other mechanisms for financingenergy efficiency objectives.

35. The development of 1994 PEEREA is currentlyfocused on a series of in depth energy efficiencyreviews, designed to produce concreterecommendations for individual governmentsconcerning ways of improving their nationalenergy efficiency strategies. To date, such reviewshave been conducted in Slovakia, Lithuania,Poland, Hungary, Bulgaria and Romania.

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1. Republic of Korea

36. Over the past 30 years, the Republic of Korea hassustained rapid economic growth, which hastransformed the country from an agrarian societyinto the industrialized middle-income nation it istoday. As the Republic of Korea has no significantenergy sources, it has had to import almost allenergies from abroad to fuel the growing economy.Therefore, energy efficiency and conservation,together with a stable supply of energy, has had theutmost priority in the Republic’s energy policies. Inthe wake of the second world oil shock, Republicof Korea established the Ministry of Energy andResources in 1978 (now incorporated into Ministryof Trade, Industry and Energy (“MOTIE”)), toadminister the planning and enforcement ofnational energy policies. The Republic of Koreaalso promulgated the Rational Energy UtilizationAct (“REUA”) in December 1979, to ensure energysecurity in an emergency and promote energyefficiency and conservation.

37. The Republic of Korea's energy conservationprogrammes and activities as introduced below arebased on the REUA. They have been put intoaction by the Republic of Korea EnergyManagement Corporation (“KEMCO”), establishedin 1980. KEMCO acts as the national energyefficiency center and is responsible for theimplementation of national energy efficiency andconservation programmes.

a) Energy Conservation Policy

38. Every five years, the Minister of MOTIE drafts theBasic National Energy Plan and the Basic Plan forRational Use of Energy. The latter is reviewed andassessed by the National Energy ConservationPromotion Committee, which is comprised of notmore than 25 members and headed by the primeminister. On the basis of these national plans, theheads of the authorities concerned andcity/province governors draft the Action Plan forRational Use of Energy.

b) Policy Objectives

39. Based on the 1997 Basic Plan for Rational Use ofEnergy, the Republic of Korea's energyconservation policy objectives and directions areto:

• Improve trade deficit by reducing energyimports;

• Strengthen industrial competitiveness by

reducing production costs resulting fromreduced energy use;

• Contribute to global environment protection byminimizing CO2 emissions;

• Enhance efficiency in the whole energy flows ofproduction, distribution and consumption todevelop an energy-efficient socio-economicstructure;

• Strengthen Demand-Side Management(“DSM”) in power sector;

• Best use market mechanism to encourageenergy efficiency investments;

• Intensify regulations to an appropriate level inkey areas (including energy efficiency standardsof the energy equipment and appliances);

• Foster an energy and resource-saving lifestyleby raising energy conservation awareness,adjusting energy price levels properly, and thelike; and

• Strengthen international cooperation.

c) Major Energy Efficiency and ConservationProgrammes

40. Over the past 20 years, the government of theRepublic of Korea has made concentrated efforts tofoster energy-intensive industries such as iron andsteel, petrochemicals and machinery. This has ledthe industrial sector to account for more than halfthe nation's total energy consumption. Thegovernment has extensive energy efficiencyprogrammes particularly aimed at these energy-intensive industries.

41. Article 25 authorizes the Minister of MOTIE todesignate some heavy energy users as EnergyManagement-Required Users who must report tothe government their annual production, energyfacilities, equipment, annual energy use, andcorporate energy conservation plan along with theresults of implementing the previous year's plan.Two hundred specially identified companiesaccount for approximately 50 % of the totalindustrial energy use. The specially identifiedcompanies are required to set up and implementtheir own 5-year Corporate Energy ConservationPlan. The Minister of MOTIE may announceEnergy Management Guidelines to be adopted byheavy energy users.

d) Energy Audits and Technical Support

42. Article 30 states that the Minister of MOTIE mayorder the energy users to have an energy audit bythe designated institution if a need is established bythe Korean government's energy managementguidance. Energy audits have been conductedmainly by KEMCO since 1980. KEMCO offers afee-based detailed audit called a technical service

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audit for large companies and a free audit for smalland medium companies. Identified energy-savingmeasures are recommended coupled withtechnical assistance.

43. Article 35 instructs energy users to try to recoverand utilize waste heat produced in their workplaceor to help other third companies utilize it. TheKorean government furthermore supports energyservice companies by providing them with relevantinformation on new commercializable energyefficiency technologies, financial and taxationincentives and by holding relevant seminars in anattempt to induce investments in energy efficiencyand conservation through third party financing.

e) Financial and Taxation Assistance to EnergyEfficiency Investments

44. Since 1980, the government of the Republic ofKorea has provided long term and low interest rateloans for energy efficiency and conservationthrough the Fund for Rational Use of Energy. Everyfiscal year, a given amount is allotted to the eligibleloan applicants. Loans are provided among othersfor research and development, installation ofenergy conservation facilities. The Koreangovernment also offers tax credit for energyefficiency. Replacement of inefficient industrialfurnaces and kilns, installation of cogenerationfacilities, alternative fuel-using facilities and otherfacilities that are assessed to achieve more than10% of energy saving are all qualified for a 5%income tax deduction both for domestic andforeign products.

f) Regional Energy Planning

45. Every five years, all local governments are requiredto make and implement their own regional energyplan suitable for the geographical and socio-economic needs and conditions of their respectiveregions and in tune with the Basic National EnergyPlan. KEMCO provides training and education tothe local governmental and produces a guidebookon the fundamentals of regional energy.

g) Energy Impacts Assessment on Energy-intensive Projects

46. Articles 8, 9, 10 and 11 provide for a reporting andconsultation system of large-scale, energy-intensiveprojects. If a governmental or public institutiondesires to carry out a high energy-consumingproject such as urban development projects,energy resources development projects, industrial

site or complex preparation projects, port andrailroad construction projects, airport complexconstruction projects or tourist complexdevelopment projects, the institution should set upan energy use plan and ask MOTIE for consultationbefore execution of the project. If a privateorganization desires to execute projects that areestimated to consume energy in excess of a certainscale, the organisation should prepare an energyuse plan and report it to KEMCO before it initiatesthe projects.

h) Demand-side Management

47. Because of growing difficulties in securing suitablesites and the huge investment capital forconstructing new power supply facilities in theRepublic of Korea today, DSM is progressivelypursued. In July 1995, the government, through arevision of REUA in 1995, made it mandatory forall utilities to establish and implement a DSMinvestment plan on an annual basis and to reportthe plan and its implementation to the Koreangovernment.

i) Management and Publication of Energy Statistics

48. The Minister of MOTIE should gather, analyze andmanage domestic and foreign energy statistics andpublish them, in order to use the information inestablishing and implementing effectively theNational Energy Basic Plan and related policymeasures.

j) Public Awareness Programmes

49. On behalf of the Korean government, KEMCOengages in public campaigns. It produces anddistributes films and leaflets and uses mass mediasuch as television, radio, newspapers and tocommunicate its messages. KEMCO carries outjoint activities with businesses and Non-Governmental Organizations to boost people'sawareness and participation on a voluntary basis.KEMCO also organizes exhibitions and diversecultural events on a regional basis to showcasesuccessful energy conservation activities andprojects.

k) Energy Equipment Efficiency Management:Standards and Labelling

50. Target Energy Performance Standards (“TEPS”) andMinimum Energy Performance Standards (“MEPS”)are currently applied to six items: electricrefrigerators, air-conditioners, fluorescent lamps,lamp ballast, incandescent bulbs and passenger

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cars. MEPS aim at expelling inefficient designs fromthe market, while TEPS are designed to encouragemanufacturers to produce more energy-efficientgoods.

51. Article 48 prescribes the labelling duty of the heat-using equipment manufacturers/importers. Thelabel must contain specifications, performance andother features of the product. In addition, the RatingLabelling Programme provides the consumer witha relative ranking of the energy use of equipmentand appliances. Product models are classed intoone of five different grades, thus providingconsumers with better information for decisionmaking. Rating labelling is applied to electricrefrigerators, electric air-conditioners, incandescentlamps, fluorescent lamps and fluorescent lampballast.

l) Inspection of Heat-using Equipment

52. Some kinds of heat-using equipment are to beinspected by the city/province governor duringtheir manufacture, installation, re-installation,modification or replacement. Currently, six items(steel boiler, cast iron boiler, water heating boiler,pressure vessels group I, and metal heating furnace)in three categories of the heat-using equipment aresubject to inspection.

m) Promotion of Research and Development ofEnergy Technologies

53. The government leads Research and Development(“R&D”) activities in collaboration with industry,universities and research institutes. Priority projectsare financed by the government budget andenergy-related funds from the government andindustry.

54. The Research and Development Center for Energyand Resources (“RACER”) was founded as anaffiliate of KEMCO in 1992, to take charge ofmanaging the whole R&D process. At present, a10-Year Energy Technology Development Plan isbeing implemented. This Plan focuses on thefollowing three categories of energy conservationtechnologies: • Core technologies such as photovoltaic, solar

thermal, fuel-cell and IGCC; • General technologies such as waste, bio, wind

power and coal utilization technology; and • Basic technologies such as small hydro, ocean,

hydrogen and geothermal.

55. Renewable Energy Technologies are regulated bythe 1987 Alternative Energy DevelopmentPromotion Act. Under this Act, a Basic Plan for theDevelopment of New and Renewable EnergyTechnologies was established in 1988. The BasicPlan sets out four phases for enhancing new andrenewable sources of energy. Upon completion ofthe fourth phase by 2006, new and renewablesources of energy are planned to contribute 2% oftotal energy demand.

56. Currently, eight energy sources (solar, bio, waste,small hydro, wind, hydrogen, ocean andgeothermal) and two related technologies (fuel celland coal utilization technologies) are defined bythe Alternative Energy Development Promotion Actas target technologies. RACER is responsible formanaging R&Dfor new and renewable energysources through selection, support, operation,evaluation and management of the research anddevelopment projects. RACER receivesapplications for research projects for the followingyear, selects the appropriate research projects andprovides full funding to universities and researchcenters and a portion of the funding to privatecompanies.

2. Germany

57. Worldwatch Institute stated in the 2003 edition ofits “State of the World” report:

When the 1990s began, Germany had virtually norenewable energy industry, and in the view of mostGermans the country was unlikely ever to be in theforefront of these alternative energy sources. … Yetby the end of the 1990s, Germany had beentransformed into a renewable energy leader. With afraction as much potential in wind and solar power

as the United States, Germany has almost threetimes as much installed wind capacity (more thanone third of total global capacity) and is a worldleader in solar photovoltaics as well. In the space ofa decade, Germany created a new, multibillion-dollar industry and tens of thousands of new jobs.This metamorphosis provides helpful lessons for thescores of countries that have not yet determinedhow to unleash the potential of their ownindigenous renewable energy sources.

58. The promotion of renewable energies started in1998, with the promulgation of Germany’sRenewable Energy Act. The Act has quadrupled theamount of electricity produced and fed into thepublic grid from regenerative sources. It has

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resulted in the saving of some 56 million tonnes ofcarbon dioxide a year (2002) and has turnedregenerative energy production into big business(one with annual revenues of Euro 9 billion andemploying 130,000 persons). The RenewableEnergy Act also has spawned similar undertakingsin Spain, France, Austria, the Czech Republic andother countries.

59. In a second phase, the Renewable Energy SourcesAct has been introduced. It obliges electricity gridoperators to give priority to the purchase ofelectricity from solar energy, hydropower, windpower, geothermal power and biomass, and to paya specified price for it. These changes, which shalltake effect in 2004, will encourage the setting up ofoffshore wind parks and the further development oftheir successful counterparts on land. The level ofcompensation is based on the production costs. Asinvestors know with certainty that they can selltheir electricity at a fixed rate for 20 years, thebanks will give the credits needed. This hasresulted in the desired boom in the construction ofnew installations.

60. The revised Renewable Energy Sources Act willalso encourage the modernization of small-sizedhydraulic facilities and the building of Germany’sfirst geothermal energy stations. Finally, the Act willprovide home-based producers of photovoltaicpower with long-term security of support.

61. Not only the climate benefits from the boom inrenewable energy sources, which means anaverage of about 50 million tonnes of reducedgreenhouse gases per year. The labor market alsofeels the boost through this growing industry:Today, there are about 130,000 jobs in Germanythat are directly or indirectly linked to theexpansion of renewable energies.

62. The German government aims at doubling theshare of renewable energy sources in the energysupply sector by 2010, compared to 2000 levels.The aim is to increase gross electricityconsumption from 6.3% in 2000 to 12.5%, and theshare in primary energy consumption from 2.1% in2000 to 4.2% in 2010. The German governmenthas launched an offensive in favor of renewableenergy sources by setting this objective. The fastpaced developments in recent years have shownthat the ambitious 2010 target of doubling theshare can be met. Furthermore, the federalgovernment is striving to provide half of theGerman consumption of primary energy fromregenerative sources by the middle of the 21stcentury.

3. Australia

a) Regulatory Framework for Promotion of EnergyConservation and Energy Efficiency

63. Australia was established by its Constitution, whichdates from 1901, as a federal jurisdiction. Thecountry is governed centrally by theCommonwealth legislature. In addition, there aresix states and two territories. The power to enactenergy conservation legislation is shared betweenthe various Australian governments. The states andterritories have the power to legislate pursuant toSection 51 of the Constitution. TheCommonwealth has the power to legislate toimplement the terms of any internationalobligation. Where the Commonwealth and statelaws clash, pursuant to Section 109 of theConstitution, the Commonwealth laws will prevail.

64. Australia has signed the Energy Charter Treaty andthe associated Protocol on Energy Efficiency andRelated Matters (“Treaty” and “Protocol,”respectively). By acceding to these legalconventions, the Australian government hascommitted itself to take wide-sweeping legislativemeasures in support of energy conservation.

65. In 1997, in the lead up to Kyoto, the greenhousestatement by the Prime Minister titled Safeguardingthe Future, mapped out the CommonwealthGovernment’s action plan to address Australia’scontribution to global climate change. The mostsignificant component of the package was theformation of a national agency on greenhousematters, the Australian Greenhouse Office(“AGO”). Established in 1998, and bringingtogether proms from three Commonwealthdepartments, the AGO formed the world’s firstnational government greenhouse agency. TheAGO is responsible for the coordination ofdomestic climate change policy and the delivery ofkey greenhouse response programs.

b) Domestic Appliances and Equipment

66. Energy consumed by equipment and appliances isa major source of greenhouse gas emissions.Indeed, these emissions are responsible for morethan a quarter of net greenhouse gas emissions inAustralia (excluding land use change and forestry).Consequently, improved energy efficiency ofappliances and equipment is a key objective forAustralian governments.

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67. The 1998 National Greenhouse Strategy sets outthe governments' policy objectives in this area inthe following terms: “Improvements in the energyefficiency of domestic appliances and commercialand industrial equipment will be promoted byextending and enhancing the effectiveness ofexisting labeling and minimum energyperformance standards”.

68. The AGO has given effect to this vision by adoptingtwo main strategies, namely, mandatoryprogrammes and voluntary programmes.

c) Mandatory programs

69. The AGO coordinates the implementation of state-based regulations, which compel industrystakeholders to meet Minimum EnergyPerformance Standards (“MEPS”) or to disclose theenergy efficiency of selected products throughAppliance Labeling.

70. MEPS programmes are made mandatory inAustralia by state government legislation andregulations which give force to the relevantAustralian Standards. Regulations specify thegeneral requirements for MEPS for appliances,including offences and penalties if a party does notcomply with the requirements. Technicalrequirements for MEPS are set out in the relevantappliance standard, which is referenced in stateregulations.

71. Regulations specify the general requirements forthe energy labeling of appliances, includingoffences and penalties if a party does not complywith the requirements. Technical requirements forenergy labeling are set out in "Part 2" of the relevantappliance standard, which is referenced in stateregulations.

72. It is currently mandatory for all of the followingelectrical products offered for sale in Australia tocarry an approved energy label:

• refrigerators and freezers, • clothes washers, • clothes dryers, • dishwashers, and • room air conditioners (single phase mandatory,

three phase voluntary).

73. The following products are also regulated on thebasis of MEPs, meaning that they have regulatedminimum energy efficiency levels:

• Refrigerators and freezers (from 1 October1999, revision 1 January 2005);

• Electric storage water heaters (from 1 October1999);

• Three phase electric motors (0.73kW to<185kW) (from 1 October 2001);

• Ssingle phase air conditioners (from 1 October2004, revision 1 October 2007);

• Three phase air conditioners up to 65kWcooling capacity (from 1 October 2001,revision 1 October 2007);

• Ballasts for linear fluorescent lamps (from 1March 2003) (Note that in addition to MEPS,ballasts also have to be marked with an energyefficiency index (EEI));

• Linear fluorescent lamps - from 550mm to1500mm inclusive with a nominal lamp power>16W (from 1 October 2004);

• Distribution transformers - 11kV and 22kV witha rating from 10kA to 2.5MVA (from 1 October2004); and

• Commercial refrigeration (self contained andremote systems) (from 1 October 2004).

d) Voluntary Programmes

74. The AGO works in partnership with stakeholdergroups to introduce programs that encouragemarket transformation by promoting highlyefficient equipment or by identifying selectedenergy efficient products through appliancelabeling.

75. The AGO is currently working with its stakeholdersto reduce standby power losses - the power usedby an electrical appliance when not performing itscentral function.

e) Buildings

76. As would be expected from a scenario of cheapenergy and a particularly mild climate, Australianbuildings have traditionally been wasteful ofenergy and thermally inefficient. In a land ofabundant and cheap energy, energy efficiency hadnot traditionally had a high profile. This has beenconfirmed by studies on the residential buildingsector and the commercial building sector by theAGO in 1999.

77. The Prime Minister’s Statement “Safeguarding theFuture” identified the building sector as a keyindustry in the reduction of greenhouse gasemissions. In March 1999, following wideconsultation, the Federal Government and thebuilding industry, represented by the AustralianBuilding Energy Council, reached a landmarkagreement on a comprehensive strategy aimed atmaking Australian buildings more energy efficient.

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78. The strategy encompasses:

• Federal Government and building industrysupport to encourage voluntary best practicesin building design, construction and operation,plus

• The elimination of worst energy performancepractices by incorporating a single standard forminimum performance requirements into theBuilding Code of Australia.

79. In 2002, a national public lecture tour, titled“Sustainable Housing,” was organized to promotethe benefits and showcase cutting edge examplesof energy efficient dwellings. Many of theseprogrammes were also designed to prepare thebuilding industry for mandatory energyperformance requirements. Key programmesfunded by the Commonwealth Governmentinclude the Housing Industry Association’sPartnership Advancing the Housing Environment,the Window Energy Rating Scheme, MasterBuilders Australia’s Building EnvironmentDividends Programme and the residentialconsumer and technical guide project titled YourHome.

80. Voluntary programmes have been developed tocreate awareness of the impact of industrymembers and their products on the environment.The AGO has funded the documentation andpromotion of excellence in energy efficient design.

81. The Commonwealth Government and the AGOare managing programmes which set MinimumEnergy Performance Standards (“MEPS”) forbuildings. A scoping study by AGO in 1999,concluded that the Building Code of Australia canbe amended to set MEPS for new residential andnon-residential buildings, if it takes place withconsensus agreement from all key stakeholders. Forresidential buildings, an important historicallandmark has been the development of the nation-wide House Energy Rating Scheme (“HERS”). TheHERS system consists of a five-star graded ratingsystem for all new residential dwellings. The HERSsystem is optional in most jurisdictions, but hasbeen adopted into legislation in the AustralianCapital Territory and Victoria. In both of thesejurisdictions, residential dwellings must rate at leastfour stars out of a maximum of five stars. Theintention of the Commonwealth Government isthat energy efficiency requirements will eventuallybecome mandatory across Australia.

f) Electricity Generation and Distribution

82. One of the key features in the Prime Minister’sclimate change statement are Efficiency Standardsfor Power Generation. Generator EfficiencyStandards took effect on 1 July 2000. The objectiveof the Generator Efficiency Standards Programme(GES) is to:

• Achieve movements towards best practice inthe efficiency of electricity generation usingfossil fuels, and to

• Deliver reductions in the greenhouse gasintensity of energy supply.

83. The Commonwealth enters into legally bindingagreements with businesses. Standards apply tonew electricity generation, significantrefurbishment and existing generation. Based oninitial estimates from independent experts, theprogramme is projected to save about 4 milliontonnes of carbon dioxide per annum. Annualreporting from businesses affected provides a clearpicture of progress towards these greenhousesavings.

84. Guidelines for the implementation of the measurehave been developed following extensiveconsultation with industry, electricity users and thewider community. The first in a set of twoguidelines outlines the key parameters of GES. It iscomplemented by a second set of guidelines thatdeal with the more technical aspects of theprogramme.

g) Transport

85. The Australian transport sector accounts for 73.9million tonnes of Australia's total net greenhousegas emissions, representing just over 16.1 % ofAustralia's total emissions. About 90.2 % of theseemissions come from road transport, includingcars, trucks and buses.

86. A mandatory fuel consumption labeling schemehas been developed for new passenger cars up to2.7 tonnes gross vehicle mass. Under this scheme,which came into effect on 1 January 2001, a fuelconsumption label is required to be placed on thewindscreen of all new cars sold in Australia. Thesemodel-specific labels will show the car's fuelconsumption in litres/100 km, based on tests setout in Australian Standard 2877.

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Resources

Internet Materials

AUSTRALIAN GREENHOUSE OFFICE available at http://www.greenhouse.gov.au

BIOMASS ASIA (CHINA) available at http://www.platts.com/features/biomass/asia.shtml

CHERNOBYL CENTER available at http://www.chornobyl.net/eng

CHERNOBYL, TEN YEARS ON - RADIOLOGICAL AND HEALTH IMPACT, AN ASSESSMENT BY THE NEA COMMITTEE ON RADIATION

PROTECTION AND PUBLIC HEALTH, OECD NUCLEAR ENERGY AGENCY, NOVEMBER 1995 available athttp://www.geocities.com/Heartland/Pines/3459/Histree/allchernobyl.html

COMPENDIUM OF ENERGY CONSERVATION LEGISLATION IN COUNTRIES OF THE ASIA AND PACIFIC REGION available atwww.unescap.org/esd/energy/efficiency

EEG GERMANY (English version) available at http://www.iwr.de/re/iwr/info0005e.html

ENERGY CHARTER TREATY available at http://www.encharter.org/

INTERNATIONAL ATOMIC ENERGY AGENCY available at http://www.iaea.org/worldatom/

INTERNATIONAL SUSTAINABLE ENERGY ORGANIZATION FOR RENEWABLE ENERGY AND ENERGY EFFICIENCY available athttp://www.uniseo.org

LEGISLATION OF UKRAINE, ON STATE REGULATION OF NUCLEAR AND RADIATION SAFETY available athttp://www.snrcu.gov.ua/eng/laws/pr000512.html

ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, ENERGY PAGE available athttp://www.oecd.org/topic/0,2686,en_2649_37459_1_1_1_1_37459,00.html

PACE LAW SCHOOL ENERGY PROJECT available at http://law.pace.edu/energy/index.html

THE ENERGY AND RESOURCES INSTITUTE available at http://www.teriin.org/

THE WIND OF CHANGE BLOWS THROUGH GERMANY available athttp://www.dw-world.de/english/0,3367,1446_A_763430,00.html

UNFCCC ENERGY TOPICS available at http://search.unfccc.int/query.html?col=fccc&qt=energy

UNITES STATES ENVIRONMENT PROTECTION AGENCY ENERGY INDUSTRY PAGE available athttp://www.epa.gov/ebtpages/induindustenergyindustry.html

87. As part of Australia’s response to climate changethe Commonwealth Government’s alternative fuelsprogrammes are designed to reduce greenhousegases and other vehicular emissions fromAustralia’s road transport sector. The aim of theprogrammes is to increase the use of alternativefuels, especially Compressed Natural Gas (“CNG”)and Liquefied Petroleum Gas (“LPG”), in mediumto heavy road vehicles.

88. The Government is currently negotiating withindustry to set National Average Fuel Consumption(“NAFC”) targets for new passenger vehicles for

2005 and 2010. In the November 1997 PrimeMinister's greenhouse policy statement,Safeguarding the Future, the Government specifiedthat it was seeking a commitment to a NAFC targetin 2010, which is 15% below business-as-usualoutcomes.

Prof. Adrian J. Bradbrook, Bonython Professor ofLaw, Law School, University of Adelaide


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Text Materials

Adrian Bradbrook, REGULATORY FRAMWORK FOR PROMOTION OF ENERGY CONSERVATION AND ENERGY EFFICIENCY IN

AUSTRALIA.

Adrian Bradbrook, Rosemary Lyster, Richard Ottinger, THE LAW OF ENERGY FOR SUSTAINABLE DEVELOPMENT, (CambridgeUniversity Press, 2005).

Attilio Bisio & Sharon Boots, ENCYCLOPEDIA OF ENERGY TECHNOLOGY AND THE ENVIRONMENT, (Wiley, 1995).

Chris P. Neilsen & Peter Lydon (Eds.), ENERGIZING CHINA: RECONCILING ENVIRONMENTAL AND ECONOMIC GROWTH,(Harvard University Committee on Environment: Harvard University Press, 1998).Earl Finbar Murphy, ENERGY AND ENVIRONMENTAL BALANCE, (Pergamon Press, 1980).

Eric R.A.N. Smith, ENERGY, THE ENVIRONMENT AND THE PUBLIC OPINION, (Rowman & Littlefield Pubs., 2002).

Fred P. Bosselman, ENERGY, ECONOMICS AND THE ENVIRONMENT: CASES AND MATERIALS, (Foundation Press, 2000).

Helen Cothran (Ed.), ENERGY ALTERNATIVES: OPPOSING VIEWPOINTS, (Greenhaven Press, 2002).

Janos Pasztor, BIOENERGY AND THE ENVIRONMENT, (Westview Press, 1990).

Leigh Hancher, EC ELECTRICITY LAW, (Chancery Law Pub., 1992).

Mapping the Energy Future: Energy Modelling and Climate Change Policy, in INTERNATIONAL ENERGY AGENCY (Paris1998).

Patricia Birnie & Alan Boyle, INTERNATIONAL LAW AND THE ENVIRONMENT, (Oxford University Press).

Patricia D. Park, ENERGY LAW AND THE ENVIRONMENT, (Taylor & Francis, 2002).

Regina S. Axelrod, CONFLICT BETWEEN ENERGY AND URBAN ENVIRONMENT: CONSOLIDATED EDISON VERSUS THE CITY OF NEW

YORK, (University Press of America, 1982).

Stephen Berry, Dr. Tony Marker & Mr. Philip Harrington, AUSTRALIA’S APPROACH TO ENERGY EFFICIENCY AND THE

BUILDING CODE, Australian Greenhouse Office.

THE ENVIRONMENTAL IMPACTS OF PRODUCTION AND USE OF ENERGY, United Nations Environment Programme (Nairobi1980).

WORLD ENERGY ASSESSMENT: ENERGY AND THE CHALLENGE OF SUSTAINABILITY, UNDP, UNDESA & the World EnergyCouncil (2000).

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26. CORPORATIONS AND THE ENVIRONMENT

I. Introduction

1. All economies depend on the success of businessto manufacture much-needed commodities,process products, provide services and undertake avariety of economic activities either in their homemarket for export and import, or as foreigninvestors in other countries. In the process,businesses provide employment, and are a sourceof livelihood for many people across the globe.Despite these benefits, business also contributesgreatly to environmental damage throughcontamination of environmental media (soil, waterand air) and depletion of natural resources.

2. As business activities widen in scope andgeographical range with the opening up of marketsand investment opportunities through global tradeinitiatives, their potential for damage to theenvironment increase as well. As a result, laws,rules and regulations have been createdspecifically to control business activities in order toprevent harm to human health and theenvironment, and to reduce historic adverseimpacts. Alongside these laws and regulations,there are increasing requirements on business toact in a transparent manner both to aid investmentdecisions and to keep the public informed of theimpacts of business, whether locally or globally.

3. Law exists at three levels. At the international level,law exists in the form of binding rules andregulations that have been established ininternational treaties and agreements andcustomary practices. In regional legal orders, suchas the European Union and the North AmericanFree Trade Agreement, both legal instruments andvoluntary codes of conduct help regulateenvironmental impacts, if only to produce levelplaying fields amongst competitors in theseregions. At the national level, many countries havecreated domestic laws to regulate businesses.Some of the national laws have been created totranspose rules stipulated at the international level.In addition, there are rules and regulations createdby businesses themselves for self-regulation in thebusiness community, and voluntary regulations byindividual companies. These exist in the form ofbusiness charters, codes of conduct, codes ofethics, corporations' best environmental practices,and in other forms. Some of the rules andregulations have been initiated by, or developed

with assistance from environmental organizationssuch as the United Nations EnvironmentProgramme.

4. This Chapter provides an overview of binding andnon-binding international environmentalagreements and other instruments establishingbinding and non-binding rules to governbusinesses. It also gives examples ofimplementation of the rules to illustrate theirapplicability. An overview of business self-regulation is also provided. The discussionincludes environmental regulations created bybusiness organizations and rules created byindividual businesses for self-regulation. There areexamples of voluntary compliance by industry withenvironmental self-regulation to show thesignificance of voluntary business regulations asinstruments for health and environmentalprotection by limiting the adverse impacts ofbusiness activities. Further, this chapter providesthree examples of regional approaches toenvironmental agreement and shows that there issometimes greater symmetry of interstate regionallevel allowing more to be achieved. It alsoprovides examples of national laws, rules andstandards intended to regulate business. Some ofthe national legislation implements rules andstandards established at the international level.Implementation and enforcement of the nationallaws are also considered as they are crucial to theprevention and reduction of adverse impacts ofbusiness activities on the environment.

5. Private businesses and other forms of industrialenterprise exist in every country of the world.While some operate within the country of theirestablishment, others have invested outside of theirdomestic base. As such, these businesses andenterprises have the capacity to relocate businessoperations from one country to another, and arecommonly referred to as transnationalcorporations. Such businesses have played acrucial role in the social and economicdevelopment of many countries. They manufacturecars, chemicals of many different kinds,refrigerators, air conditioners and many otherproducts that people need. In addition, they alsoprocess agricultural and other products, makeclothes and other essential items, and tradenationally and internationally in a wide variety ofproducts. In the process of doing these things,private business support the livelihoods of manypeople by providing vital sources of food andemployment; they also contribute towards theirprofessional development, thereby transformingsocial systems by providing major opportunities for

ExampleImpacts of Poor Oil Extraction Practices: The Niger Delta Crisis

There is a long and terrible record of environmental destruction and human rights violations in the oil-producingregions of Nigeria. The gross level of environmental degradation caused by oil exploration and extraction in the NigerDelta has gone unchecked for the past 30 years. Evidence shows that the oil companies operating in Nigeria have notonly disregarded their responsibility towards the environment but have acted in complicity with the military's repressionof Nigerian citizens... * Gas flaring: Testimonies to wasteful oil industry operations, gas flares are a distinctive feature of the Niger Deltalandscape. Most of these flares burn 24 hours a day…gas does not have to be flared off, and in many countries there islittle flaring…Yet companies in the Delta opt for flaring because…it is by far cheaper than the alternatives...the impactof gas flares on the local ecology and climate, as well as people's health and property, is evident. The extremely highlevels of CO2 and methane gases that are released to the atmosphere also impact climate patterns beyond the local

level…Yet, the oil industry seems blatantly oblivious to the consequences of this wasteful practice… * Pipeline leaks: …On-site oil leaks and ruptured pipelines are a serious problem in the Niger Delta…On average,three major oil spills in the Niger Delta are recorded each month. In the first quarter of 1997 alone, Shell recorded 35incidents of oil spills in its operations...Under Nigerian law, companies are not obliged to clean up or compensate forthe effects of spills caused by sabotage… * Health: …serious respiratory problems witnessed in many communities can be linked to environmental pollution.Respiratory problems, coughing up blood, skin rashes, tumours, gastrointestinal problems, different forms of cancer, andmalnourishment, were commonly reported ailments in many communities…Another problem facing the people of theNiger Delta is the illicit use of land by oil companies. In the community of Umuebulu, Rivers State, hardly 50 metersaway from its perimeter, there is an unlined chemical waste pit. The company reportedly acquired this land under thepretence of building a "life camp"— an employee housing complex…The wall keeps people out but doesn't serve as aprotection against the noxious fumes coming from the site. Some members of our delegation …immediately recognisedthe smell of industrial waste…

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trading. The magnitude of wealth possessed bybusinesses indicates that they are capable ofcontributing significantly to the development ofmany nations.

6. In this way, private business plays a pivotal role indevelopment. Many countries in Africa, LatinAmerica, Asia, and Eastern Europe have chosenforeign direct investment as the key to theireconomic development. Foreign investment allowsmany foreign businesses to bring their capital andstart business operations in the jurisdiction inquestion. However, while business activities makesignificant contributions to life and economichealth in many areas, they may consume naturalresources, produce goods that might poseenvironmental problems and contribute tounacceptable human health and environmentaldeficits.

7. Many developing countries have liberalized theireconomies and relaxed their laws, especiallyconcerning labour and the environment in thehope of encouraging more foreign investors tobring in capital that will foster economic growth.In many cases, the rapid economic growthenvisaged through such foreign investmentmilitates against notions of sustainabledevelopment in the host countries. Absence ofregulations for business, deregulatory programmes,weak or relaxed regulation, waiver of theapplicable standards and lack of enforcement, as

well as problems of corruption have contributed tothe destruction and degradation of the environmentand its resources in many jurisdictions.

8. In many countries around the world, businessactivities have contributed to contaminatation ofair, water and soil by for example generating(hazardous) wastes that are inadequately disposedof such and are sometimes discharged bymanufacturing industries directly into the ground,polluting nearby water resources. Businesses alsoproduce and market products that are harmful tohuman health and the environment. In somecases, businesses do so without informingconsumers of the dangers of such products, or withfalse assurances to consumers that such productsare safe.

9. Moreover, in the quest for raw materials to meettheir business needs, industries and otherbusinesses have destroyed forests and forest watercatchment areas through logging and changing theentire nature of the landscape and land use. Inmany places, businesses have also over-extractedfish, minerals, oil and other natural resources. Forexample, reports indicate that activities ofmultinational oil corporations in the oil rich areasof the Niger Delta have not only over-extracted oiland gas resources, but have also heavily pollutedthe environment through poor and dangerousextraction and disposal operations, partly due tothe relaxation, and lack of effective enforcement of

* Environment, loss of biodiversity: The Niger Delta has the third largest mangrove forest in the world, and the largestin Africa. Mangrove forests are important for sustaining local communities because of the ecological functions theyperform and the many essential resources they provide including soil stability, medicines, healthy fisheries, wood forfuel and shelter, tannins and dyes, and critical wildlife habitats. Oil spills are contaminating, degrading, and destroyingmangrove forests…Endangered species—including the Delta elephant, the white-crested monkey, the riverhippopotamus…are increasingly threatened by oil exploitation…Destruction of habitats...The construction ofinfrastructure for oil facilities is done with little or no regard for environmental considerations. To facilitate roadconstruction, waterways are frequently diverted, to the detriment of fish populations.” A US Non-Governmental Delegation Trip Report, Oil for Nothing: Multinational Corporations, EnvironmentalDestruction and Impunity in the Niger, Delta

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applicable environmental regulations. This has ledto severe contamination of the soil, water and otherenvironments in the Delta region, leading to thedeaths of fish and other aquatic resources thatprovided food and supported the livelihoods in thearea. The poor practices have also made fishingand farming impossible, caused many kinds ofhealth ailments and threatened to render wholepopulations destitute.

10. One of the problems that is highlighted in theDelegation Trip Report above is the lack of effectiveregulation of multinational corporations indeveloping countries. Businesses, especiallyforeign investors, continue to engage in practicesthat degrade the environment. This degradationcalls for regulatory measures at all levels tosupplement weak domestic efforts. As a result ofthe accelerated rate of business activities worldwide and as a result of scientific advance, there hasbeen increasing awareness and concern aboutharm to human health and environmental damagecaused by private business activities. Theseproblems make it necessary for business andindustry to be regulated at all levels, and for theprinciple of sustainable development to beestablished in international and nationalenvironmental laws to ensure that foreigninvestment and other business activities lead todevelopment that is sustainable in nature.


1. The International Legal Regime

11. Laws that are intended to impose binding rules onbusiness have been set out in many global,regional and bilateral agreements. A few examplesof such agreements will suffice to explain thenature of such rules and how they can apply toregulate business activities. For the most part, theprovisions covered here are to be found in greaterdetail elsewhere in the Manual. In the followingSection, five examples that pursue slightly differentobjectives are highlighted. The examples includevery specific regulation of a particular industry(tobacco) in order to minimize its impact; an

instrument that addresses the prevention of diffuseglobal damage by industry (climate change);another that tackles cross-border pollution(hazardous waste) and finally one that seeks toimpose civil liability for environment damage (oilspillage).

a) United Nations Convention on the Law of Sea andthe Fish Stocks Agreement

12. The United Nations Convention on the Law of theSea (“UNCLOS”) is a global agreement containingbinding rules that apply to parties to the agreementwith respect to the marine environment, andmatters regulated by the treaty. It has beenconsidered in greater detail in other chapters of thisManual. In this Chapter, an examination of itsprovisions is limited to those relevant to regulationof business in the marine environment. Theobjectives of UNCLOS include protection ofmarine mammals, plants and other organisms andtheir habitat from harm resulting from pollutionand other human activities such as seatransportation and fisheries activities. Suchactivities are conducted by businesses andindustries operating within and outside the marineenvironment, whose operations threaten themarine environment. Shipping and fisheriesindustries provide good examples. UNCLOS andits Agreement relating to the Conservation andManagement of Straddling Fish Stocks and HighlyMigratory Fish Species (“1995 Fish StocksAgreement”) aim to control the activities in order tomeet the set objectives.

13. For the fisheries industries, article 61 of UNCLOSand article 6 of the 1995 Fish Stocks Agreementrequire coastal states that are parties to theagreements, and other parties whose nationalsoperate fisheries in the marine environment, to setlimits on the amount of fish and other marineorganisms that can be harvested over a period oftime, or within a given area. The requirement isintended to avoid over-fishing that can, and has, inmany cases, resulted in depletion of fish stocks andin the extinction of fish and other species in coastalareas and in the high seas.

14. Further, article 61(3) of UNCLOS and article 18 ofthe 1995 Fish Stocks Agreement require fishingvessels to use proper fishing gear that do not allowsmaller fish to be caught or destroy other marineorganisms that fishermen do not require. Thearticles also require fisheries industries to complywith any existing requirements and measuresintended to conserve fish and other marineorganisms. Such measures include those taken torestore populations of harvested species tomaximum sustainable levels, in conformity withany national laws created by parties to regulatefisheries. Article 18 of the Fish Stocks Agreementexpressly prohibits fishing vessels from engaging inany activity that undermines the effectiveness ofconservation measures set out in UNCLOS or otheragreements. For example, fishing vessels areprohibited from carrying out their activities, such asprocessing of fish in the high seas, in a way that canresult in pollution of the waters. In addition, article10(c) of the Fish Stocks Agreement requiresfisheries industries to adopt international standardsfor responsible conduct during fishing operationsto supplement UNCLOS requirements and toensure that fisheries activities do not harm marineliving resources and the marine environment. Suchstandards have been established, for example, inarticle 8 of the Food and Agriculture Organization’sCode of Conduct for Responsible Fisheries.

15. There are also requirements upon parties toUNCLOS and to the 1995 Fish Stocks Agreementto control fisheries industries. Article 18(3) of the1995 Fish Stocks Agreement requires parties tocreate national laws to implement licensingrequirements for all fishing vessels authorised tocarry out fisheries activities in their territorialwaters, and for all vessels to fly their national flagswhile undertaking fisheries operations in coastalwaters and in the high seas. Parties are alsorequired to prohibit vessels that do not have fishinglicences from undertaking fishing activities and tospecify conditions for conservation that businessesengaging in fisheries must meet when issuinglicences. Parties are also required to placeconditions in fisheries licences that will ensure thatfisheries activities are properly conducted to avoidadverse consequences to fish stocks, other marineorganisms, or the marine environment. Forexample, parties may issue a licence on conditionthat a particular vessel harvests only a specified fishstock.

b) Framework Convention on Tobacco Control

16. The World Health Organisation’s (“WHO”)Framework Convention on Tobacco Control

(“2003 FCTC”) is a global agreement negotiatedover a period of years under the auspices of theWHO. The agreement was unanimously adoptedby representatives from 191 countries at the 56thWorld Health Assembly on 21 May 2003. The2003 FCTC is specifically intended to regulate thetobacco industry and related businesses involvedin the manufacturing, packaging, selling,advertising, and otherwise dealing with tobaccoand tobacco products. The rules set out will bebinding upon such tobacco businesses in andbetween countries that are parties to theAgreement. 2003 FCTC entered into force on 27February 2005, and has currently (January 2006)117 parties.

17. The Preamble to 2003 FCTC states that one of theobjectives of controlling tobacco businesses is toprevent and reduce adverse human health andenvironmental impacts and consequences oftobacco, tobacco consumption, and exposure totobacco smoke. To accomplish these objectives,when issuing licences article 4(5) requires parties todevelop rules within their countries that wouldmake tobacco businesses liable for any damagecaused as a result of smoking and using othertobacco products. In its introductory parts, the2003 FCTC notes the fatal and other human healthimpacts of tobacco toxicity. Tobacco businesseswill be held liable for such deaths, even incountries that did not have such liability laws priorto the 2003 FCTC.

18. Article 5(2(b)) requires parties to create, maintainand enforce national rules and regulations that willreduce tobacco consumption. In the interest ofsafeguarding the environment and human health,governments have agreed to take measures thatwill reduce tobacco sales and that might,eventually drive some of the industries out ofbusiness, without incurring liability underinternational trading agreements, such as theGeneral Agreement of Tariff and Trade (“GATT”).Further, articles 9, 13, and 21 require parties tocreate national laws requiring businesses todisclose the exact contents of tobacco andundertake a comprehensive ban of all tobaccoadvertising, promotion and sponsorship. This willalso have a direct impact on the tobacco industry,especially by curbing the marketing of cigarettesmoking as safe.

c) Ozone regime

19. The Vienna Convention for the Protection of theOzone Layer (“1985 Vienna Convention”) and theMontreal Protocol of 1987 (“1987 Montreal

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Protocol”) provide excellent examples of howinternational agreements might change the face ofa whole industrial sector. These agreements ariseout of concerns for the global atmosphere and,more particularly, concerns relating to thedepletion of the ozone layer that would otherwisescreen ultraviolet rays. For a fuller discussion of thetwo Conventions, see chapter 9 above. The 1985Vienna Convention proved difficult to negotiatebecause of concerns from developing countriesregarding the impact of controlling the substancesthat depleted the ozone on emerging industries,and resistance from developed countries on thebasis that the phenomenon of ozone depletion wasunproven. Consequently, the 1985 ViennaConvention was simply a framework demandingfurther assessment of and exchange of informationabout ozone depletion. Nonetheless, the 1985Vienna Convention is significant for a number ofreasons, namely because it addressed a globalproblem of diffuse pollution created by certainindustrial sectors and opened a debate aboutprecautionary action.

20. Following the 1985 Vienna Convention, the 1987Montreal Protocol set clear targets for the reductionof substances that deplete the ozone layer, such aschlorofluorocarbons (“CFCs”), which were subjectto a programme of phased reduction until theagreed limits. The 1987 Montreal Protocol wasmade possible by the interim work conducted byscientists under the auspices of UNEP allowingagreement both on the reality of ozone depletionand the timing of necessary action. Since thebeginning of 1989, when the Protocol entered intoforce, there have been five major revisions of theMontreal Protocol’s schedules for phasing outdepleting substances.

21. The 1985 Vienna Convention and 1987 MontrealProtocol offer many lessons. Precautionary actionproved not merely possible but also necessary andsuccessful. The role of industry was vital. Thechemical industry in the United States helped tolead the way through its recognition of the problemand its willingness to seek replacement substances.The 1987 Montreal Protocol is well recognized asone of the most successful ventures of internationalenvironmental law because stakeholders and theirexperts were involved in the design of theprogramme. Moreover, in a good example ofdifferentiated responsibility, it was recognized thatdeveloped nations bore more responsibility for thecreation of the problem and this is reflected in thelonger period of adaptation allowed for developingcountries in the Convention and in the Protocol.Finally, working in this way, and with carefully

prepared targets and pre-planning, industry hasfound it possible to move to alternativetechnologies without massive dislocation in themarket for refrigerants and other goods. (Seeexample in box titled ‘Best Environmental Practicesof Technology Industries below). The pity is that thesuccess of the 1987 Montreal Protocol is provingmuch more difficult to repeat in the context ofglobal warming caused by concentrations ofgreenhouse gases.

Example Best Environmental Practices of Technology Industries

A number of companies that operate globally,including Honda, Trane, Aviation Partners, Energy Starand Seiko Epson have been able to use cutting-edgetechnology to protect the climate and/or the ozonelayer from harmful substances, which demonstrates thecontributions these companies are making toenvironmental protection. For example, EpsonCorporation started using chlorofluorocarbons in itsmanufacturing processes in 1970. At the time, adverseimpacts of CFCs on the environment were not known.CFCs are colourless, odourless, energy-efficient andseemed also perfect in almost every way for themanufacture of refrigerants, air conditioners and manyother products until 1974, when research revealed thatthe chemicals were not only toxic but were alsodepleting the ozone layer that protects life on earthfrom the harmful effects of the sun.

Once the adverse effects of CFCs became known andnegotiations for the Convention on Climate Changebegan, Epson’s managers understood that as a matter ofgood business practice, since the company hadcontributed to the introduction of CFCs in theatmosphere, it was the duty of the company to takeaction to protect the ozone layer by eliminating CFCs.Using technological innovations, Epson’s efforts beganin 1988 after the company's president declared that itwas the company’s policy to eliminate CFCs. At a timewhen the Montreal Protocol only envisaged a fiftypercent reduction in CFCs, Epson pledged to eliminatethe use of CFCs in its Japanese companies within fiveyears. The company later accelerated its goal to fouryears, and still managed to phase out CFCs by October1992, more than three years before the time called forby the final Montreal Protocol phase-out schedule.Through technological innovation, Epson has beenable to replace CFCs with substances that do notdeplete ozone.

d) Basel Convention

22. The Basel Convention on the Control ofTransboundary Movements of Hazardous Wasteand their Disposal (“1989 Basel Convention”)offers more lessons. Many manufacturing industriesproduce harmful wastes as a result of the processesof production. Following an outcry over industrial

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practices in exporting harmful wastes in the 1980s,and interim moves by the European Commission,the Organization for Economic Cooperation andDevelopment and the United Nations (“UN”), the1989 Basel Convention sought to regulateinternational trade in such wastes. This was noeasy matter since industries in developed nationswere reluctant to narrow their disposal options forproblematic waste streams, but the pace of changewas forced by the urgent insistence of Africannations that international trade in wastes should bebanned. The 1989 Basel Convention operates onthe basis of prior informed consent. Wastes cannotbe trans-shipped from one state to another withoutthe exporting state first informing and receiving theapproval of the recipient state. This promotes arespect for national sovereignty in that anylegislation in that recipient state banning orrestricting the importation of waste must behonoured. Moreover, whether or not suchmeasures are in place parties to the 1989 BaselConvention should not allow their industries toexport waste unless they believe that the wasteswill be treated in an environmentally soundmanner. This will involve some consideration ofthe capacity and facilities of the receiving state.Where trans-shipment does take place under priornotification, there are rules on packaging, labellingand transportation to ensure the propermanagement of the waste. Importing states caninsist on insurance or other financial guarantee.

23. There are a number of issues to note. The first isthat the 1989 Basel Convention sits alongside otherinternational agreements, particularly the LoméConvention banning export from the EC to Afro-Caribbean-Pacific States, and the BamakoConvention prohibiting importation of waste intoAfrica from non-contracting states. In a sense, thelatter convention is anone example of a number ofregional agreements in this area that key into(though alter) the Basel Convention. The EuropeanUnion has regulation pre and post dating the 1989Basel Convention. All exports for disposal areprohibited, and from 1998, in line with a decisionunder the Basel Convention, all shipments forrecovery from non-industrialized countries areprohibited. The pre-notification system under theMexico-United States Hazardous WasteAgreement dates back to the mid-1980s. A secondissue is that the mechanisms under the conventionare cumbersome. Determining which goods arewastes and which are economic goods can bedifficult, requiring elaborate listings of hazardouswaste products. Pre-notification, even though itcan involve advanced notification of regularshipments of waste of a similar description, placesonerous obligations on industry and require a good

deal of regulatory supervision. As originallydrafted, the Basel Convention had no agreement ofliability for breach of the rules, and although thishas improved a little by the adoption of a protocolon compensation for injury and economic losscaused by hazardous waste, this has yet to beratified by, for example, the European Community.

24. On the other hand, the 1989 Basel Convention hasdone much to promote waste minimization byindustry, better local waste recovery andenvironmentally sound waste practices. Moreover,the prior consent procedure again provided aworking model for other international agreements,through which states seek to control industrialexports that might have damaging environmentaleffects. For example, the Cartagena Protocol to theBiodiversity Convention seeks to protect biologicaldiversity from the potential risks posed bybiotechnology through a process of advancedinformed agreement. Again, this is a procedure forensuring that countries are provided with theinformation necessary to make informed decisionsbefore agreeing to the potentially damagingimports into their territory.

e) Liability for oil pollution

25. The international regimes for the compensation ofoil pollution damage provide further insight.International civil liability refers to liability of legalor natural persons under the rules of national lawwhere these are adopted in line with aninternational treaty obligation demandingharmonized minimum standards. Such schemeshave been increasingly debated over the lastdecade as a means of managing environmentalharm. Although a number of international civilliability regimes have been negotiated, few are inforce and only one, the oil pollution regime hasany practical experience of compensating victimsof environmental harm. The regime was inresponse to the recognition that increasing sea-borne transportation of oil constituted a growingpollution risk as well as a threat to the seas and theoceans.

26. The regime consists of the Convention on OilPollution Damage (“1969 Oil PollutionConvention”) and the 1971 International FundConvention, which were updated and replaced in1992 through new protocols. They were updatedagain in 2000. The liability regime for oil pollutionis based on strict liability. Under the 1969 OilPollution Convention, the ship owner is strictlyliable for pollution damage resulting from spills ofpersistent oils suffered in the territory (includingterritorial sea) of a state party to the convention.

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Ship owners only are placed under an obligation tomaintain insurance specifically to cover pollutiondamage. Under the regime, liability is limited andunder article 6(a), impairment of the environmentother than loss of profit from such impairment islimited to costs of reasonable measurement ofreinstatement actually undertaken or to beundertaken. The 1971 International FundConvention provides additional funds, where thelimit of compensation available under the 1969 OilPollution Convention is exceeded. Payments arefinanced by levies on oil importers.

27. The limits of liability are criticized for being toolow and every time there is a new incident, whichshow that the limits are insufficient, they areamended and increased. Further, limits on liabilitycould be contrary to the polluter-pays principle,which requires that a polluter should beresponsible for the full cost of the damage they maycause. There is further criticism to the extent ofarticle 6(a), which in a strict sense excludescompensation for ecological damage as the fundonly compensates economically quantifiablelosses. The EC argues for a stronger regime basedon a stricter application of the polluter-paysprinciple and that the limits of liability of the shipowner should not be unbreakable. In 1969, a strictliability regime with compulsory insurance mayhave been revolutionary, however, with therequirement to increase liability with every newpollution incident, the regime has been criticizedfor providing better protection to industry than tothe victim. Despite this, it is still the onlyinternational civil liability regime what has activelyrequired business to compensate victims.

2. International Non-Legally Binding Instruments

28. There exists a body of international agreements,declarations, codes of conduct, and other non-binding instruments setting forth non-legallybinding rules that are specifically intended toinfluence businesses. Although they are not legally-enforceable, many of the regulations, known alsoas rules, standards, guidelines, codes of practice orethical codes, have been widely accepted andapplied in many countries to preventenvironmental harm, reduce adverse healthimpacts, and serve several other purposes. A fewexamples will demonstrate the applicability of suchregulations.

a) Agenda 21 and the Rio Declaration

29. Agenda 21 is a non-legally binding instrument forenvironmental protection and susatainabledevelopement. With regard to businesses, Agenda

21 establishes a duty to disclose toxic emissionsdata. It requires industries to provide responsiblegovernmental authorities, international bodies andother interested parties with data of substances thatthey produce in order to allow an assessment ofrisks and hazards that they pose to human healthand the environment. This would allow measuresto be taken to prevent, for example, industrialaccidents such as the Bhopal and Seveso tragedies.The rule is backed by Principle 13 of the 1992 RioDeclaration on Environment and Development,which provides:

Rio Declaration Principle 13

“States shall develop national law regarding liabilityand compensation for the victims of pollution andother environmental damage. States shall alsocooperate in an expeditious and more determinedmanner to develop further international lawregarding liability and compensation for adverseeffects of environmental damage caused by activitieswithin their jurisdiction or control to areas beyondtheir jurisdiction.”

30. Chapter 30 of Agenda 21 contains a framework forcorporate environmental responsibility. Thechapter entitled, “Strengthening the Role ofBusiness and Industry,” exhorts corporations torecognize environmental management as amongthe highest corporate priorities. How corporationsoperate and the policies they follow can play amajor role in reducing impacts on resource use andthe environment. In recognition of this, Chapter 30puts forward two programme areas to further therole of business and industry. The first relates to“promoting cleaner production,” which focuses onefficient resource utilization, reporting and codesof conduct on best environmental practices. Thesecond programme highlights “promotingresponsible entrepreneurship,” which requires theimplementation of sustainable developmentpolicies and responsible and ethical managementof products and processes.

31. Chapter 30 has been considered by some to be themost important chapter within Agenda 21; whenthe chapter was published, it took anunprecedented approach to the role of businessand the environment. It clearly identified thatcorporations were necessary for achievingsustainable development. In addition, chapter 30highlighted the role of mixed policy initiatives fromeconomic instruments, regulation and voluntarypractices to encourage and persuade corporationsto achieve improved environmental performance,whilst also achieving economic development.

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b) Pesticides Code

32. The International Code of Conduct on theDistribution and Use of Pesticides (“PesticidesCode”) is the worldwide guidance document onpesticide management for all public and privateentities engaged in, or associated with, thedistribution and use of pesticides, includinggovernmental authorities and the pesticideindustry. The Pesticides Code was adopted in1985 and is designed to provide standards ofconduct and to serve as a point of reference inrelation to sound pesticide management practices.

33. The Pesticides Code sets out standards of conductfor businesses engaged in distribution, marketing,international trade and other activities involvingpesticides. It was developed by the Food andAricultural Organization (“FAO”) in response to thehealth and environmental concerns about activitiesinvolving pesticides both in the country ofmanufacture and in countries to which they wereexported, particularly developing countries. Someof the problems that the FAO identified were theexport of banned pesticides to developingcountries which caused chemical burns and otherhealth problems, long persistence of pesticides inthe environment, environmental contaminationand other negative environmental impacts indestination countries, and the presence of residuesof banned and restricted pesticides in importedagricultural commodities. Some of the developedcountries expressing concerns are those whosebusinesses export the pesticides abroad, a problemknown as “cycle of poison”.

34. The FAO also noted that developing countrieslacked necessary pesticide laws. Moreover, theyhad little capacity to determine whether pesticideswhose uses are banned or restricted in the countryof origin could be safely used in their importingcountries. They lacked expertise to conductscientific evaluations of pesticides to be able toeffect appropriate regulations on domesticpesticide businesses. The FAO Pesticides Codeprovides some basic guidance on some of theseissues. Article 4.1 of the Pesticides Code requirespesticide industries to carry out tests on pesticidesto fully evaluate their hazard and risks to humanhealth and the environment, taking into accountthe various conditions in regions or countries inwhich they are used. Pesticide industries are alsorequired to share with governmental authorities,and with others carrying on pesticide trade, anyinformation that they hold about the dangers andrisks of pesticides.

35. Further, article 4 of the Pesticides Code requiresindustry engaged in manufacturing, distributionand use of pesticides to train their employees in thesafe handling of pesticides to avoid causing harmto health and the environment. In addition, articles6 through 10 of the Pesticides Code requirepesticide manufacturers and others engaged inpesticide businesses to properly label all pesticideswith correct information on their proper uses,hazardous nature, and precautionary measures.Pesticide manufactuers are also required to ensurethat any unwanted pesticides or pesticide residuesare disposed of in a proper way to avoid harm tohuman health and environmental contamination.

36. With regard to the export and import of bannedand restricted pesticides, the FAO introduced aprocedure for exchange of information betweenexporting and importing countries that adhere tothe Pesticides Code. An important aspect of thisprocedure is the requirement under article 9 thatdeveloping countries make an informed decisionon whether or not they will import pesticides thathave been banned or restricted in exportingcountries, and to give prior consent to every importof such pesticides. Once they do so, the PesticidesCode requires that they pass this information to theFAO, which then notifies other countries ofmeasures to prohibit or restrict pesticide imports.On the other hand, the Pesticides Code alsorequires exporting countries to inform destinationcountries of any intended exports of banned orrestricted pesticides. Countries that adhere to thePesticides Code are required to establish nationalauthorities or focal points to facilitate informationexchange between the countries.

37. Although the application of the Pesticides Code hasbeen voluntary, it has served as a useful point ofreference, especially to countries that did not havelaws to regulate pesticides. Its significance is alsoreflected in the binding international agreementsthat have been subsequently created to regulatepesticides, such as the Basel, Bamako and PriorInformed Consent Conventions. In these and otherinternational agreements, the prior informedconsent procedure and other aspects of thePesticides Code have been incorporated and havebecome legally-binding on states that are parties tothose agreements.

38. Further, although implementation of the PesticidesCode has been voluntary, a number of industriesand industry associations have adopted andapplied it. For example, CropLife America hasactively supported implementation of thePesticides Code among its members. CropLife

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America is the national trade associationrepresenting the developers, manufacturers,formulators and distributors of plant sciencesolutions for agriculture and pest management inthe United States. Its member companies develop,produce, sell and distribute virtually all the cropprotection and biotechnology products used byAmerican farmers. The mission of CropLife is tofoster the interests of the general public andCropLife member companies, which it does bypromoting innovation and the environmentallysound discovery, manufacture, distribution and useof crop protection products. CropLife has found thePesticides Code useful in accomplishing thismission. On the basis of the Pesticides Code, itencourages members to adopt environmentallysound production methods, and to comply withrelevant laws for environmental and healthprotection.

c) Fisheries Code

39. The FAO has also developed a Code of Conduct forResponsible Fisheries (“Fisheries Code”), whichhas been substantively discussed in chapter 17 ofthis Manual. In article 6(6) and in other provisions,the Fisheries Code sets out rules and standardsspecifically for the fisheries industry and requires,for example, that those engaged in fisheriesactivities select environmentally safe fishing gearand adopt fishing practices that will not lead todepletion of fish stocks.

40. Although it is voluntary and has no enforcementmechanisms, the Fisheries Code has been adoptedand applied by fisheries industries in a number ofcountries. In Australia, for example, the FisheriesCode has been used to develop a Code of Conductfor a Responsible Seafood Industry by theAustralian Seafood Council (“Australian Code”).The Australian Code sets out principles andstandards of behaviour for responsible practices toensure that those engaged in the seafood industrycarry out their activities in an ecologicallysustainable manner. The principles and standardsset out are intended to ensure the effectiveconservation, management and development ofliving aquatic resources, with due respect toecosystem and biodiversity. For example, itrequires those engaged in the seafood industry tominimize the catch of non-target species, minimizethe incidental catch of non-utilized speciesincluding marine mammals, reptiles and seabirdsand to avoid causing adverse impacts onassociated or dependent species. To meet theserequirements, it recommends limitation of the sizesof fishing nets and other gear, modification of

fishing gear where necessary and effecting closedareas or closed fishing seasons to allow fish stocksto increase.

d) OECD Guidelines

41. The OECD is an economic organization whosethirty member countries include, inter alia, theUnited Kingdom, United States, Japan, Australia,Belgium, Canada, Greece, Mexico and Finland.The OECD’s guidelines are a set of standards andrules to govern multinational corporations andother businesses from or operating within theircountries that were developed in constructivedialogue with the business community, labourrepresentatives and Non-GovernmentalOrganizations in member countries. The guidelinesare intended to be applied by the businesses todomestic and overseas activities on a voluntarybasis and as part of OECD’s policy efforts toachieve the highest attainable economic growth inmember countries and to promote the economicdevelopment of countries in which OECDmultinationals carry out business. The OECD’sguidelines supplement applicable national andinternational laws governing business activities andhave been applied worldwide, even by businessesother than those originating in OECD countries.The OECD seeks to accomplish its objectivesthrough the guidelines by, among other things,addressing health and environmental problemsthat might result from business activities. Therefore,the guidelines cover a broad range of issues,including consumer interests, such as health, safetyand the environment.

42. The section of the OECD’s guidelines onenvironment encourages multinational enterprisesto raise environmental performance throughimproved internal environmental management.This requires, for example, that businessesoriginating in OECD countries make efforts todevelop technologies that reduce emissions ofhazardous substances and gases into theatmosphere. The guidelines also requiremultinational corporations to have goodcontingency plans to avoid adverse environmentalimpacts. Amongst other things, multinationalcorporations must maintain contingency plans forpreventing and mitigating the consequences ofindustrial accidents and emergencies.

43. Further, multinational corporations are required toconduct assessments of the potential impacts oftheir planned business activities. The essence ofthis is that where assessment shows that high andunacceptable levels of environmental harm are

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likely to result, planned activities should beabandoned. Assessments are also to be conductedin the course of conducting business activities andthe guidelines require multinational corporations totake cost-effective measures to deal with actual andpotential impacts on health and the environmentrevealed by assessments. Corporations are requiredto develop and provide products or services thathave no undue environmental impacts, are safe intheir intended use, are efficient in theirconsumption of energy and natural resources, andcan be reused, recycled, or disposed of safely.Corporations are also required to adhere to and torespect laws, regulations and administrativepractices, including international agreements thataffect their businesses in the countries in whichthey operate.

44. There is no mechanism for enforcing thesestandards, but governments that are members ofthe OECD are expected to encourage companiesin their countries to observe this code of conduct.Each member country is supposed to set up anational contact point- a government office orbody that includes representatives of governmentagencies, industries and other interested parties tofacilitate application of the guidelines. Under theOECD scheme, any interested party can file acomplaint regarding alleged violations of theOECD Guidelines with the national contact points.Although no legal enforcement of the guidelines,even by the national contact points is envisaged,efforts by governments to implement the guidelineshave led to their acceptance and application inmany business activities.

e) International Standards - ISO

45. The International Standards Organization (“ISO”) isa network comprising national standards institutesof 156 countries, on the basis of one member percountry. It is a Non-Governmental Organizationand its national delegates represent all theeconomic stakeholders concerned includingprivate businesses, consumers, governmentregulators and other interest groups. Thus, ISO isable to act as a bridging organization in which aconsensus can be reached on solutions that meetthe requirements of all interested parties. The ISO,which officially began operations on 23 February1947, has a Central Secretariat in Geneva,Switzerland, that coordinates its work.

46. The ISO’s specific role is to facilitate theinternational coordination and unification ofindustrial standards. In its work to achieve thispurpose, ISO has developed uniform standards for

a wide variety of products, services, businessprocesses, operations and coding of products andother items. ISO sets standards, for example, byspecifying what quality standard a certain itemmust meet, to be generally acceptable in thatbusiness sector. It may also specify that to be of aparticular acceptable quality, a product must havecertain components or appear in a certain shapeand colour. In construction, ISO might specify, forexample, that a building intended formanufacturing pesticides must have ventilationand other engineering requirements. Thespecifications become the world standards thatproduct qualities, engineering designs,manufacturing processes, safety operations,business activities and services must meet to beacceptable, or to be suitable for use internationally.These then become the rules with respect toproducts, services and designs that are applicableinternationally.

47. Between 1947 and today, ISO has developed morethan 13,700 international standards for a widespectrum of products, activities, services,technologies and the like. For example, standardsfor screw threads help keep the frames of children'sbicycles and aircraft together, and solve the repairand maintenance problems that could be causedby lack of standardization. ISO standards such asthese allow international consensus onterminology, quality, quantity and other aspects ofproducts and processes, thus making technologytransfer easier.

48. In addition, ISO has developed specific standardsthat relate directly to public health andenvironmental protection. The first is ISO 9000,which is a series of product quality managementstandards or requirements that can help allbusiness organizations, including industry, tomanufacture products, adopt production processesin the manufacture of the products and provideservices that meet customer satisfaction andrequirements, and are recognized throughout theworld. Included in the ISO 9000 requirements is adescription of production practices that a companyfollows to ensure that its products and services metcustomer satisfaction. The ISO 9000 series ofstandards of requirements can achieve publichealth and environmental objectives, for example,by ensuring that manufactured products andservices rendered are of such qualities that do notharm health and the environment.

49. Unlike ISO 9000, whose major systemrequirements are defined by customers and otherstakeholders, ISO 14000 lays out standards for

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environmental management, including standardsfor Environmental Management Systems (“EMS”)under ISO 14001. ISO 14000 is primarilyconcerned with what a business organization doesto manage the impacts of its activities on theenvironment and the system includes methods ofevaluating environmental impacts and forresponding to emergencies. For example, if abusiness is engaged in manufacturing, ISO willspecify what the business needs to do to avoidenvironmental contamination. Whatever ISOspecifies is achievable by similar manufacturingactivities anywhere in the world to meet the sameends of environmental protection- minimizingharmful effects on the environment caused by itsactivities, and enabling businesses to continuallyimprove their environmental performance. TheISO 14000 series of standards emerged primarily asa result of two major events with potentiallyconflicting goals, namely the Uruguay Round ofnegotiations of the GATT, which began in 1986,and the Rio Conference on Environment andDevelopment held in 1992. While the GATT talksaddressed the need to avoid or remove non-tariffbarriers to trade, the Rio Earth Summit establishedan international commitment for protection of theglobal environment. With careful implementation,ISO 14000 standards should unite both trade andenvironmental concerns, more so because it hasthe potential to promote world trade while at thesame time encouraging and assisting industries tobe more environmentally responsible.

50. ISO standards are voluntary. As a Non-Governmental Organization, ISO has no legalauthority to enforce the implementation of itsstandards. However, the standards have beenwidely applied in many countries bymanufacturers and other businesses and bygovernments. In many countries, the standardshave been incorporated into national legislation forcontrol of businesses and have legal marketrequirements. For example, ISO’s specifications ofdimensions of freight containers and bank cardshave been adopted world wide. In addition, theenvironmental standards, for example, ISO 9000,are currently implemented by more than half amillion organizations in more sixty countries. Theenvironmental standards provide the organisationswith a framework for quality managementthroughout the processes of producing anddelivering products and services for the customerthat ensures health and environmental safety andprotection. The fact that the standards aredeveloped in response to market demand, and arebased on consensus among the interested parties,ensures their widespread applicability. It isimportant to note that the supply chain promotes

ISO standards, for example, by a businessdemanding that its suppliers meet ISO standards.

f) Other instruments

51. In addition to the non-binding internationalinstruments, there exists a large body of rules,regulations, codes of practice, conduct andguidelines developed by businesses themselves fortheir own self-regulation, on a voluntary basis.Many of these are developed by businessorganisations, and are specific to particular sectors.For example, in the tourism and travel sector, thereexists a Charter of Ethics for Tourism and theEnvironment, among others. Some are specific toparticular industries, such as agro-chemicals andengineering, for which there are the VancouverCommuniqué and Code of Best AgriculturalPractices to Optimize Fertilizer Use and the Codeof Environmental Ethics for Engineers, respectively.There are also codes that apply across sectors, suchas the Business Charter for SustainableDevelopment that was initiated by the InternationalChamber of Commerce. Many of the codes andother industry regulations are applicableinternationally. There are also individualbusinesses that have developed rules for their ownapplication.

52. For example, the Business Charter for SustainableDevelopment (“Business Charter”), which wasformally launched in April 1991, sets out sixteenprinciples on environmental management to guidebusinesses in their investment ventures andbusiness activities. The Business Charter directsbusinesses that before starting an activity orenterprise, they should conduct an assessment ofthe project’s environmental impacts. Similarly, theyshould conduct an assessment of the impacts ofhistoric activities before decommissioning a facilityor leaving a site.

53. Further, as a matter of priority, corporate entitiesshould establish and implement policies,programmes and practices for conducting theiroperations in an environmentally sound manner.Once this is done, corporate entities shouldintegrate these policies, programmes and practicesfully into each business as an essential element ofmanaging all of its functions. As an essentialcomponent of environmental measures, theyshould also educate, train, and motivate employeesto conduct their activities in an environmentallyresponsible manner. The guidelines provided bythe Business Charter are vital for sustainabledevelopment.

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54. Although the application of the provisions of theBusiness Charter and other regulations in thiscategory is voluntary, the provisions are oftenadhered to by businesses for a variety of reasons.For some, adherence is due to pressure fromconsumer groups and non-governmentalorganizations to maintain clean and safe productsand production processes. For others, adherence isa matter of business decisions to maintain goodreputation and good standing with governments,consumers and other stakeholders, or to cut thecost of environmentally damaging ways of doingbusiness. For example, members of EuropeanFertilizer Manufacturers Association (“EFMA”)subscribe to the principles contained in theBusiness Charter and promote them within theirorganisations while undertaking programmesunder Responsible Care, their self-regulationguideline. Industries that are members of EFMAhave embraced the environmental principles setout in the Business Charter in their operations.

55. Within Europe, the European Chemical IndustryCouncil, of which EFMA is an affiliated member,coordinates the development and implementationof principles, programmes and activities underResponsible Care and the Business Charter. TheEFMA has developed best available techniquesbooklets covering the production processes for allthe main fertilizer products for use by theauthorities in the process of developing Europeanbest available fertilizer technologies that wouldprevent harm to human health and theenvironment.

56. Private business has the potential for good and bad.Further, there is an increasing awareness of thepotential of business activities to cause negativehealth and environmental impacts that are likely toincrease with accelerated rates of business activityespecially cross-border activity. Existinginternational controls over businesses, includingmultinational corporations, are mostly non-legallybinding and the examples provided show that thereis an increase in the emphasis given to this form ofregulation. In relation to self-regulation andvoluntary codes, there have been a number ofcatalysts, including stakeholder or company-to-company pressure, the influence of investors in theform of large shareholders and insurers, andcompany reporting which increasingly includesenvironmental reporting.

57. Among its many benefits, non-legally bindingagreements can be more practical and effective incontrolling business conduct, especially where itcrosses boundaries. Non-legally binding

documents are also driven by market forces andcan deliver greater benefits where businesses areprepared to go beyond what the law requires inorder to gain competitive advantage. Non-legallybinding agreements are also seen to be cheaperthan the cost of regulation to the state in enforcingand to business in complying, which is increasinglybecoming unacceptable. Moreover, they areperceived as quicker to develop and more flexiblethan legislation. Where a non-legally bindingagreement is developed with full participation byall interests involved thus genuinely representing aconsensus on what action is best, they can work ina more satisfactory manner.

58. Where non-legally binding agreements are lacking,or where there is scepticism about non-legallybinding documents because of inadequate self-regulatory schemes which appear merelycosmetic, stringent regulation may be preferredbecause they carry sanctions for breaches and maybe preferred as better guarantees of effectiveness.There are also specific areas where mostconsumers and consumer organizations would notaccept non-legally binding agreements as anapproach to regulation, especially on matters offraud, risk to life and/or health, where unfairadvantage is taken of people vulnerable for avariety of reasons, where competition alone cannotdeliver essential services to consumers who are notof commercial interest to suppliers, and wherestrict regulation is needed to make competitionwork. Society in general has an interest in theoutcome of regulation in these areas beyond thecollective interest of individual consumers, whichnon-legally binding agreements alone cannotguarantee.

3. Regional Agreements

a) North American Free Trade Agreement

59. The North American Agreement on EnvironmentalCooperation Between the Governments of Canada,The Government of the United Mexican States andthe Government of the United States of America(“NAAEC”) is a regional agreement between thegovernments of Canada, Mexico and the UnitedStates that was adopted on 10 September 1993,and currently is in force. The agreement came as asupplement to the North American Free TradeAgreement (“NAFTA”) that was created the sameyear and came into force on 1 January 2004.NAFTA was intended to promote free tradebetween the three parties but it was realised,shortly after its conclusion, that free trade betweenthe countries might adversely affect environmental

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conditions in the countries. This realisationprompted the creation of the side environmentalagreement.

60. The three parties to the environmental agreementwere convinced of the importance of conservation,protection, and enhancement of the environmentin their territories in achieving sustainabledevelopment for the well-being of present andfuture generations. It was felt that real benefits oftrade between the parties could only be realised iftrade did not result in environmental deficits.Among other rules affecting private businesses inthe countries, article 1(d-f) of NAAEC requiresparties to promote the use of economic instrumentsfor the efficient achievement of environmentalgoals. This means, for example, that parties couldtax manufacturers for emitting pollutants into theatmosphere to persuade them to adopt cleanermethods of production.

61. Further, article 2 of NAAEC requires parties toregulate imports and exports of products bybusinesses in the relevant countries. Specifically,businesses are prohibited from exporting to anyone of the three countries substances that areprohibited in their country and parties have theresponsibility to ensure that the prohibition iscomplied with. For example, if the use of aparticular chemical is banned in the United Statesbecause of its potential to cause adverse health andenvironmental impacts, businesses in Canada andMexico are prohibited from exporting thatchemical to the United States. Similarly, businessesin the United States will be prohibited fromimporting that chemical from Canada or Mexico,and any other country. Enforcement of theregulation is through machinery established at thenational and regional levels to ensure adherence tothe agreement.

62. In order to achieve high levels of environmentalprotection and compliance with environmentallaws and regulations established in the agreementand in the national legislation of parties, each partyis required by articles 2(a)- (f) and 37 of NAAEC toeffectively enforce its environmental laws andregulations through appropriate governmentalaction. This may include conducting inspections ofmanufacturing and other business premises and theadoption of licensing and permitting requirementsto control discharges of pollutants and mitigateother kinds of environmental harm. Further, inaddition to national offices and authorities, partiesare required to create inter-governmentalcommissions and bodies through which cross-border activities likely to cause environmentalharm can be controlled. In view of accelerated rate

of trade between parties that NAFTA wouldencourage, effective implementation is demandedto prevent and reduce pollution and other harmfulenvironmental effects that businesses could causewithin the countries.

b) Association of South East Asian Nations

63. Unlike the constitutional basis of the EuropeanUnion, the Association of South East Asian Nations(“ASEAN”), established in 1967, is based moreupon mutual agreements and common goals ratherthan upon legislative acts. ASEAN is comprised often member states, including Indonesia, Malaysia,Philippines, Singapore, Thailand, BruneiDarussalam, Vietnam, Laos, Myanmar andCambodia, with a population of about 500 million.Business and industry play a crucial role in thesocial and economic development of the regionand the abundance of natural resources to befound in the member states contribute to theregions economic growth. ASEAN is faced withthe challenge of balancing environmentalconcerns with the imperatives of development.ASEAN has recognised that the protection of theenvironment and the sustainable management ofnatural resources are essential to the long-termeconomic growth of the region.

64. A main goal of ASEAN is the harmonisation ofenvironmental laws and standards throughout theregion. However, a prime motive for the creationof the Association was to achieve peaceful co-operation amongst the members, whilstmaintaining mutual respect for each other’sindependence and sovereignty. As such,agreements negotiated at ASEAN must be ratifiedand implemented into national laws. Mostenvironmental agreements are still not in force, forexample, the 1985 Agreement on Conservation ofNature and Natural Resources. This Agreement isone of the only environmental agreements tospecifically contain provisions relating to business.Article 10(b) requires the development of soundindustrial processes and products and article 10(d)holds the originator of any environmentaldegradation responsible for its prevention,reduction and wherever possible, for rehabilitationand remediation.

65. One agreement that has entered into force, inNovember 2003, is the ASEAN Agreement onTransboundary Haze Pollution. See chapter 8above. It is the first such regional arrangement inthe world that binds a group of contiguous states totackle transboundary haze pollution resulting fromland and forest fires. Members accepted that smallfarmers or large plantation companies, to clear

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land at a minimum cost, had often deliberately setfires. ASEAN recognised not only theenvironmental degradation caused by the fires butalso highlighted the negative impact on the region’seconomy. A zero burn policy has beenimplemented and a number of plantationcompanies have been investigated and prosecutedfor illegal burning. Part of the zero burn policyincludes dialogue with plantation companies toraise awareness of zero burn practices andtechniques and has developed a best practicepolicy on zero and controlled burning forcompanies within the region. This may be anindicator to businesses that were the environmentand the economy are intrinsically linked, countrieswithin this region may be more willing to act.

c) European Union

66. As discussed above, international agreements onthe liability of business for environmental damageare not easy to achieve, but at a regional level moremay be possible. In 2004, the European Unionintroduced the European Union Directive onEnvironmental Liability, a legal measurecommitting all member states to introduce liabilityrules where industrial operators cause seriousdamage to natural resources (land, water, speciesand habitats). If activity in the course of a businessor undertaking causes such damage then liabilitywill result. For operational activities scheduled inthe law (basically, industries regulated underEuropean environmental law) liability will be strict(i.e., it is necessary only to show causation). Otheroperators can be liable but only if fault is proven.

67. Imminent threats can be curtailed by demandingpreventive action. Where damage does occur,immediate clean-up and control will be necessary,but there will also be liability to ensure the longerterm restoration of the site. If this takes time theninterim damages for biodiversity loss can beordered. This will generally take the form of someadditional compensatory remediation or perhaps atanother habitat. Such liability for biodiversitydamage (e.g., to a species not in the ownership ofany natural or legal person) is unusual, and non-governmental organizations have the right torequest action. This is thought to be necessary toprompt intervention on behalf of the environment.Member states within Europe have the option ofallowing a defence to the operator where it canshow that the operation met the requirements of anenvironmental permit, or where the operator wasworking according to the state of scientific ortechnical knowledge at the time of the damage.

68. It remains to be seen how effective these provisionswill prove to be as they have yet to come into force.However, combined with the greater transparencydemanded of industry in relation to environmentalperformance, and easier access to information onthe state of the environment, held by public bodies,there could be early requests by NGOs for legalaction, to which the competent authorities willthen be mandated to respond. The stumblingblocks may prove the difficulties in provingcausation in relation to, for example, thedeterioration of habitats, the lack of backgrounddata on the state of habitats, and the costing ofremedial measures where these are not simply aquestion of restoration cost.

III. National Implementation:

National Legislation Governing Private Businesses

69. National legislation strengthens compliance withinternational environmental agreements and otherinstruments. National legislation also representsnational policy on why, how and which businessesand industries must be controlled to protect healthand the environment from adverse impacts. Thispart of the chapter is intended to provide examplesof national legislation, including theimplementation of business regulations establishedat the international level and laws that incorporatevarious industrial and other business codes. It alsoprovides examples of how the legislation has beenimplemented and its applicability to the preventionof harm to health and to the environment frombusiness activities based in two developed and twodeveloping countries.

1. The Oil Pollution Act of the United States ofAmerica

70. The Oil Pollution Act of 1990 (“OPA”) and thefederal rules made under it in Title 33 of the Codesof Federal Regulations, parts 155 and 157 of 1996,are the United States’ federal laws that regulates oilproduction, transportation and distributionindustries. One of the specific matters regulated byOPA is the construction and size of oil vessels.Section 5225 of OPA provides that a tank vesselshall have or be constructed with a “double hull,”but it does not define what amounts to a doublehull. To fill the gap, the United States Coast Guardpromulgated regulations, which were published on10 March 1996, stating that a double hullconstruction shall have dimensions consistent withstandards established by the International MaritimeOrganisation (“IMO”), an established UnitedNations agency with the responsibility of settingstandards and adopting regulations that apply to all

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vessels that operate internationally. The UnitedStates had adopted its standards for vesselconstruction earlier the same year.

71. A sample provision of OPA is as follows:

Rules for the Protection of the Marine EnvironmentRelating to Tank Vessels Carrying Oil in Bulk

Title 33—chapter I, part 157

(a) With the exceptions stated in Sec. 157.08(n), thissection applies to a tank vessel-- (1) For which thebuilding contract is awarded after June 30, 1990; (2)That is delivered after December 31, 1993; (3) Thatundergoes a major conversion for which; (I) Thecontract is awarded after June 30, 1990; or (ii)Conversion is completed after December 31, 1993;or (4) That is otherwise required to have a doublehull by 46 U.S.C.(b) Each vessel to which this section applies must befitted with: (1) A double hull in accordance with thissection; and (2) If Sec.157.10 applies, segregatedballast tanks and a crude oil washing system inaccordance with that section. (c) Except on a vessel to which Sec. 157(10d) (d)applies, tanks within the cargo tank length that carryany oil must be protected by double sides and adouble bottom as follows: (1) Double sides mustextend for the full depth of the vessel's side or fromthe uppermost deck, disregarding a roundedgunwale where fitted, to the top of the doublebottom…" Subpart B--Design, Equipment, andInstallation." (Sec. 157.10d, Double hulls on tankvessels).

72. The laws concerning double hull requirements foroil tankers have been applied in many court casesfiled by persons engaged in the shipping industryin the United States. For example, in the case ofRay vs. Atlantic Richfield Company, the UnitedStates Supreme Court struck down the laws of oneof the states that attempted to set out tankerconstruction regulations conflicting with thedouble hull federal requirements. This means thatthe federal government of the United States hasoverriding powers to regulate matters concerningtanker construction and design and can apply rulesacceptable internationally for this purpose. Thisposition was reaffirmed by Court in another 1996case, International Association of IndependentTanker Owners vs. Lowery.

73. In a similar case, Maritrans Inc. vs. United States, adomestic tank operator sued the United States inthe United States Supreme Court, alleging that thepremature retirement of its single-hull tank vessels(that failed to meet double hull requirements bythe date stipulated) was unconstitutional because itamounted to taking of its property withoutcompensation. The Supreme Court applied the

double hull laws and the authority of the federalgovernment to enforce the laws and ruled that infact retiring the complainant’s vessels was lawful.

2. Philippine Fisheries Code of 1998

74. The preamble to the Philippines Fisheries Code(“Philippines Code”) states that the code is thePhilippine’s law for the development,management and conservation of fisheries andaquatic resources. The Philippines Codeincorporates many of the principles set out in theFAO Code of Conduct for Responsible Fisheries, aswell as the fisheries regulations established underUNCLOS and its Agreement on Straddling FishStocks and Highly Migratory Fish Species. ThePhilippines is one of the parties to UNCLOS.Section 4(1) of the Philippines Code states thatCode applies to The Philippines fisheries sectors,including firms or companies that supply,construct and maintain fishing vessels and nets. Inrelation to these matters, the Philippines Codemakes provisions that echo the language ofUNCLOS and the FAO Code.

75. The Philippines Code strictly regulates fisheriesactivities and, among other things, places a limiton the amount of fish catch that is allowed forparticular businesses operating in Philippinewaters under Sections 4(7) and 8. This is intendedto guard against over-fishing that might lead to lossof species of fish. Section 4(4) of the PhilippinesCode also prohibits pollution of the waters formingpart of the territory of the Philippines and requiresthose engaged in fishing and related activities totake all reasonable steps, measures and actions toavoid polluting the waters in the course of theiractivities. Further, Section 9 of the PhilippinesCode provides for closed seasons during whichfishing may not take place in all or parts of itswaters to allow increase in fish stocks and preventdepletion of fish species. Under Section 12, theCode requires environmental impact assessment ofthe waters to be conducted to determine whetherand to what extent fisheries activities are causingpollution and other adverse impacts. This wouldallow appropriate measures to be taken to dealwith such problems. In addition, Sections 30 and51 provide for licensing of fishing vessels,including commercial boats. Conditions may beplaced on licences to ensure proper fishingpractices that would avoid damage to fish andother marine living organisms, and to the marineenvironment.

76. A sample provision of the Philippines Code is asfollows:

The Philippine Fisheries Code of 1998Republic Act No. 8550, Section 12

“The Secretary may prescribe limitations or quota onthe total quantity of fish captured, for a specifiedperiod of time and specified area based on the bestavailable evidence. Such a catch ceiling may beimposed per species of fish whenever necessary andpracticable: Provided, however, that in municipalwaters and fishery management areas, and watersunder the jurisdiction of special agencies, catchceilings may be established upon the concurrenceand approval or recommendation of such specialagency and the concerned. (Section 8)

All government agencies as well as privatecorporations, firms and entities who intend toundertake activities or projects which will affect thequality of the environment shall be required toprepare a detailed Environmental Impact Statement(EIS) prior to undertaking such development activity.The preparation of the EIS shall form an integral partof the entire planning process pursuant to theprovisions of Presidential Decree No. 1586 as wellas its implementing rules and regulations.”

77. The Philippine’s Department of Environment andNatural Resources is the governmental authoritycharged with the responsibility of implementingthe Philippines Code. In collaboration with thecountry’s League of Municipalities of thePhilippines, the department has undertaken anumber of coastal resources managementconservation activities under the Philippines Code.These comprise actions, steps and programmesthat achieve sustainable use and management ofeconomically and ecologically valuable resourcesin the coastal areas, including the training ofcoastal communities on the use of proper fishinggear and proper waste disposal methods to avoidpollution of the waters. This earned the departmentand collaborating organisations a Best CoastalManagement Programs Award in 1998.

3. National Pollutant Inventory of Australia

78. Increasingly, businesses are being required toprovide information on the environmental impactsof their operational activities. Individuals,communities, and non-government organizationsseek information on what emissions businessesrelease into air, land and water. The concept of thecommunity right to know as an element of“environmental democracy” allows all thoseaffected by the outcome of environmental issues,

not just governments and industry, to have accessto environmental information, which allowscommunity members to be a part of any decision-making process. In essence, it is an instrument tomake business operation more transparent andmore accountable to the wider community. Inreturn, people gain information on potential risksand hazards to the environment and to humanhealth.

79. In a commitment to community right to know, theFederal Government of Australia introduced theNational Pollutant Inventory (“NPI”) which, wasadopted as the first National EnvironmentalProtection Measure in 1998. NPI is an Internetdatabase designed to provide community, industryand government with information on the types andamounts of substances emitted into theenvironment from business facilities. NPI requireslarge industrial facilities, within certain identifiedindustrial sectors, to report the emission of selectedpollutants over a specified threshold on an annualbasis. Estimates are based on self-reporting ofdischarges, which are prepared as a condition of anemission licence. The purpose of the database isnot only to provide publicly accessible andavailable information on emissions to theenvironment, but also to provide information toenhance and facilitate policy formulation anddecision-making. The system is dependent uponthe self-reporting of those businesses required toparticipate.

80. However, Australian industries are required toreport on only ninety substances, in contrast,American industries must report on nearly 600substances in the Toxic Release Inventory. Theextent of the NPI does not extend to information onstorage, transportation or to the disposal ofchemicals. A further criticism of NPI is that it isrestricted to only a few facilities and therefore onlyprovides selective information. To encouragecandid reporting, clause 26 of the NPI states thatinformation supplied will not be used as evidencein any legal proceedings. The intention is toencourage businesses to be open and honest abouttheir activities, thereby providing accurate data.

81. As a Federal Government instrument ofcommunity right to know, the NPI fails.Exemptions, compliance and enforcement of thesystem are the responsibility of each individualAustralian state. As a result, there are a number ofinequalities in the practice and procedure of thesystem. For example, only New South Wales’Protection of the Environment Operations Act of1997 permits third party enforcement, a central

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principle of a successful community right to knowsystem. Businesses within different states inAustralia, therefore, experience different legislativerequirements. However, the NPI can be used bybusinesses as a benchmark for their emissions andcase studies on eco-efficiency are available fordifferent industrial sectors providing details oncleaner production techniques and thereforemeans of reducing emissions.

4. Kenya and the Standards Act (Chapter 496)

82. The process of Kenya’s development of standardsfor industry is very closely linked to standardssetting activities of the ISO. To promotedevelopment, adoption and application ofstandards for products and services, the Kenyangovernment created the Kenya Bureau of Standards(“KBS”) through the Standards Act, Chapter 496.The KBS is a member of the ISO, and has, throughthe years, participated in ISO’s standard setting andstandard specification activities that have beendiscussed previously within this Chapter.

83. In Kenya, the KBS is the governmental bodycharged with the statutory responsibility for settingindustry standards for products and services. In thisrespect, activities of the KBS include actualdevelopment and specification of acceptableingredients, qualities, and uses of products, amongother standards. For example, KBS has setstandards for the pesticide, diazinon, whichspecifies that diazinon must have a technical gradematerial and emulsifiable concentrates of aparticular kind. The standards for diazinon alsospecify that in Kenya, diazinon refers to theacceptable common name by the ISO for diethyl(isoprophyl-6-methyl-4pyrimidyl) phosphorothiate.

84. Under Section 4 of the Standards Act, activities ofthe KBS also include: promoting adoption;development and application of standards inindustry and commerce; assisting the government,industry and businesses with preparation ofsuitable codes of practice; controlling products thatare marketed in the country, both locallymanufactured and imports. To be able to performthese functions efficiently and to ensure thatstandards established are uniform to those of theISO, the KBS collaborates very closely with theISO. It has participated in ISO training and othercapacity-building activities and has adopted manyof ISO’s standards for application in Kenya.

85. Sample provisions of the Standards Act are asfollows:

Kenya Standards Act Section 9(4)

An Act of Parliament to promote the standardisation ofthe specification of commodities, and to provide forthe standardisation of commodities and codes ofpractice; to establish a Kenya Bureau of Standards, todefine its functions and provide for its managementand control; and for matters incidental to, andconnected with, the foregoing. (Preamble.)

Where a Kenya standard has been declared undersubsection (1), the Minister, on the advice of thecouncil, shall, by order in the Gazette, prescribe a dateafter which no person shall manufacture or sell anycommodity, method or procedure to which therelevant specification or code of practice relates unlessit complies with that specification or code of practice.(Section 9(2).)

Where any person manufactures, or intends tomanufacture, any commodity in respect of which astandardisation mark has been specified underparagraph (b) of subsection (1), he may notify theBureau of his intention to comply with the approvedspecification and his wish to apply the relevantstandardisation mark, and the Bureau, if it is satisfiedthat he is capable of manufacturing the commodity inaccordance with the relevant specification, shall issuehim with a permit to use that standardisation mark.

86. The KBS also has the statutory mandate toparticipate in the enforcement of establishedstandards and is involved in the implementation ofChapter 496 to ensure that goods and items sold inKenya, including imports, meet standards andspecification that are acceptable in the country. Tomake this possible, the KBS has established, underits statutory authority, testing facilities in Nairobiwhere products are tested to determine whetherthey meet acceptable standards. The KBS carriesout regular inspections of manufacturing and otherpremises, especially where complaints are madethat particular products are causing health orenvironmental harm. In such cases, the KBS takessamples of the products, tests them at its facilitiesand if found to fall short of established standards, ithas authority to confiscate them for safe disposal.

87. Further, by Legal Notice Number 227 of 1995, theKenya Government expanded the functions of KBSand gave it authority to inspect imported products,including chemicals, to determine whether theproducts meet national standards before they arereleased into the Kenyan market. For this purpose,the KBS has set up offices at major entry points to

Resources

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A US NON-GOVERNMENTAL DELEGATION TRIP REPORT, OIL FOR NOTHING: MULTINATIONAL CORPORATIONS, ENVIRONMENTAL

DESTRUCTION AND IMPUNITY IN THE NIGER, DELTA available at www.essentialaction.org/shell/Final_Report.pdf

ENVIRONMENTAL COMPLIANCE AND AUDITS HOME PAGE available at http://www.businesslaws.com/envtl.htm

ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, CORPORATE GOVERNANCE available athttp://www.oecd.org/topic/0,2686,en_2649_37439_1_1_1_1_37439,00.html

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THE WORLD HEALTH ORGANISATION’S FRAMEWORK CONVENTION ON TOBACCO CONTROL available at www.fctc.org

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Aaron Gershonowitz, HOW THE ENVIRONMENTAL REGULATORY SYSTEM WORKS: A BUSINESS PRIMER (2nd ed.) (GovernmentInstitutes, 1993).

the country, including Mombasa and Busia. In thecourse of inspection, if KBS finds that imports donot meet specified standards, or that they can beharmful to health and the environment, thepractice has been to take legal action to send themback to their country of origin.

88. These examples of national legislation show thatappreciable efforts have been made to implementinternational instruments to regulate business andindustry at domestic levels. However, there is stilla lot of room at the national level for all players,including governments, environmentalorganizations and other parties to increase efforts tocause business and industry to adopt andimplement voluntary and legally binding measuresto ensure that business activities are conducted in a

manner that reduces and/or prevents adverseimpacts on health and the environment. Inparticular, developing countries should beencouraged to incorporate the concept ofsustainable development into their policies andregulatory mechanisms to allow consideration ofthe costs and benefits of business activity as ameans to achieve development.

Prof. Robert Lee, Co-director ESRC ResearchCentre for Business Relationships, Accountability,Sustainability and Society (BRASS)/ Cardiff LawSchool, Cardiff University


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Kerry R. Turner, ENVIRONMENTAL ECONOMICS: AN ELEMENTARY INTRODUCTION, (John Hopkins University Press, 1993).

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Lisa K. Seilheimer, Supreme Court Review: October 1997 Term: United States v. Bestfoods, in 5 ENVTL. LAW. 303(September 1998).

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CORPORATIONS AND THE ENVIRONMENT

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William Hancock (Ed.), CORPORATE COUNCEL’S GUIDE TO ENVIRONMENTAL LAW, (Business Laws, Inc., 1989).

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