Identificación de las plantas vasculares etnomedicinales del caserío

A second - and more active - entrance door of NGOs to international law is, definitively, environmental law. The oldest environmental treaty with a worthy reference to NGOs is the Ramsar Convention.121In order to review and promote the implementation of the convention, it established a Conference of the contracting parties whose representatives should include persons who are experts on wetlands or waterfowl by reason of knowledge and experience gained in scientific, administrative or other appropriate capacities (Art 7 (1)). Since that expertise is quite rare in diplomatic corps, the convention demanded the participation of people customarily found in civil society organizations, such as the Academia or NGOs.

However, the participation of civil society has gone much further ahead than the condition of simply having individuals among the State represen- tatives, because the Convention has nominated an NGO, the International Union for Conservation of Nature and Natural Resources (IUCN), to act as the substantive Secretariat of the Convention, performing ‘the continuing bureau duties under the Convention until such time another organization or government is appointed by a majority of two-thirds of all contracting par- ties’, a replacement that has not yet occurred. The activities to be per- formed by the IUCN include: (i) to assist in the convening and organizing of Conferences; (ii) to maintain the List of Wetlands of International Importance and to be informed by any of the contracting parties of any ad- ditions, extensions, deletions or restrictions concerning wetlands included in the List; (iii) to be informed by any contracting party of any changes in the ecological character of wetlands included in the List; (iv) to forward notification of any alterations to the List, or changes in character of wet- lands included therein, to all contracting parties and to arrange for these matters to be discussed at the next Conference; (v) to make known to the contracting party concerned, the recommendations of the Conferences with respect to such alterations to the List or to changes in the character of wet- lands included therein.122 The Ramsar Secretariat has also signed several Memoranda of Understanding and Cooperation with NGOs, including five international organization partners and ten other NGOs.123

The substantial activities of the IUCN in the protection of the wetlands differ from those performed by the ICRC with regards to the protection of human rights. Nevertheless, despite this material and procedural discre- pancy, these activities maintain a common situation within international law, since both have received a mandate from the States to act on their be- half in the fulfillment of an agreed convention.

The IUCN is also an active member of the Intergovernmental Committee for the Protection of the Cultural and Natural Heritage of Outstanding Universal Value (the World Heritage Committee) established within the UNESCO by the Convention concerning the Protection of the

World Cultural and Natural Heritage where, together with a representative of the International Center for the Study of the Preservation and Restoration of Cultural Property (Rome Center), a representative of the International Council of Monuments and Sites (ICOMOS), and other NGO representatives, invited at the request of States parties, it participates in the meetings in an advisory capacity (art 8 (3)).124

Another important environmental convention supporting the legitimacy of NGOs in the international real is the CITES,125drafted as a result of a resolution adopted in 1963 at a meeting of members of the IUCN. The convention ensures that any international NGO technically qualified in pro- tection, conservation, or management of wild fauna and flora which has in- formed the Secretariat of its desire to be represented at meetings of the conference,shall be admitted as observer, without voting rights, unless at least one-third of the parties object (art 11 (7)). This provision represents a substantive step forward in terms of civil society participation, because, differently from the UN conferences, in which the participation depends on the acceptance of the Secretariat, at CITES Conferences the participation is guaranteed, unless a qualified group of member-states reject it. The partici- patory right is also extended to national NGOs, provided that their partici- pation is approved by the State where they are located (art. 17 (2)).

A fourth international environmental structure with relevant participation of NGOs is the Global Environment Facility (GEF), a global partnership among one hundred and seventy-eight countries, international institutions, NGOs, and the private sector established to address global environmental issues while supporting national sustainable development initiatives. The GEF started as a World Bank program in 1991 but due to the outcome of the 1992 Rio Earth Summit, it became an independent organization in 1994,126designated to be the financial mechanism for the UN Convention on Biological Diversity (CBD), the UN Framework Convention on Climate Change (UNFCC), the Stockholm Convention on Persistent Organic Pollutants (POPs) and the United Nations Convention to Combat Desertification (UNCCD). It also provides funding to projects in partner- ship with the Montreal Protocol of the Vienna Convention on Ozone Layer Depleting Substances.127 The GEF is open to participation of any State member of the UN or its specialized agencies and is structured into a General Assembly, a Council and a Secretariat. Participation with the right to vote at the General Assembly is given only to State representatives. Partnerships with NGOs are not created at the Assembly or Council levels, being focused on the Secretariat and the Implementing Agencies, either for consultation or assisting in the design, execution, and monitoring of pro- jects. The GEF maintains regular structured consultations with NGOs through the‘GEF-NGO Network’.

The Earth Summit approved Agenda 21, introducing a global partner- ship for sustainable development. According to this extensive document,

partnerships with civil society, through its major groups, are recognized, valued and pursued. According to its paragraph 27.1, ‘NGOs play a vital role in the shaping and implementation of participatory democracy’ and ‘should be recognized as partners in the implementation of Agenda 21’.128

Given these few examples, it becomes evident that the development of international environmental law does not conform to the classic doctrinal division of States/subjects – Non-state/objects not only because it allows for the participation of individuals and civil society organizations, some with executive roles such as the IUCN in the Ramsar convention, but mostly because ‘international law imposes direct environmental responsi- bilities on individuals and companies through the polluter pays principle, transboundary civil liability for environmental damage and extra-territorial criminal jurisdiction over certain environmental offences’.129

What becomes clear after quoting these few agreements, among the doz- ens of environmental treaties, either at the international or regional levels, legitimizing the role of civil society, is that environmental law is not sim- ply a system of rules and obligations, but rather a complex decision-mak- ing process in the realm of goals, values, methods and priorities that oper- ate both at the municipal and international levels, through the notions of ‘common concern’(Agenda 21),‘property of humankind’and ‘sustainable development’, which cannot be legitimate if relying only on the hands of States. It demands the participation of other actors, including individuals, through procedures of transparency and public participation, such as those prescribed in the Aarhus Convention and the NAAEC.

Challenging this understanding, some authors argue that these so-called ‘environmental human rights’suffer from cultural relativism and lack the universal value normally thought to be inherent to human rights and may prove potentially meaningless and ineffective - such as the right to devel- opment - and undermine the very notion of human rights.130 Others sup- port that international conventions that define the civil responsibility of in- dividuals and companies for damages caused to the international environ- ment actually have defined internationally a legal regimen to be applicable within the countries concerned. Thus, they have not created an interna- tional responsibility to individuals and companies, but rather created a uni- form municipal responsibility to those internal subjects.131

With all due respect to the quality of the arguments, we understand that people’s rights to the environment are not only‘material rights’but mostly ‘procedural rights’ (Aarhus, NAAEC, etc), because international treaties have legitimized their access to environmental justice and their participation in environmental decision-making. These rights require and benefit from notions of civil participation in public affairs already reflected in existing civil and political rights (1966 International Covenant on Civil and Political Rights, arts 19, 25) and environmental documents (1992 Rio Declaration, principle 10), which achieved an universal character by their adoption in

several other treaties and international documents such as the World Charter for Nature,132 the 1985 Vienna Convention,133the 1987 Montreal Protocol,134 the 1992 Framework Convention on Climate Change,135 the 1991 UN/ECE Espoo Convention on Environmental Impact Assessment,136 the 1991 UN/ECE Helsinki Convention on the Transboundary Effect of Industrial Accidents,137 the 1992 Biological Diversity Convention,138 and the 2003 CoE Lugano Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment,139just to quote a few.

Regarding the second argument, that environmental law defines inter- nationally a uniform municipal law for individual responsibility, we under- stand that, even considering that it may be true in certain aspects of envir- onmental protection, it is not general at all, because the purpose of the international environmental law is protecting the human being in general, focusing on the effects of human behavior that transcends the States boundaries. The fact that a given individual will be prosecuted or penalized under a certain municipal regimen does not imply that the challenged con- duct is irrelevant for other individuals living in other States. This interna- tional impact evidences that environmental law is not just a coordinated set of municipal legal standards, rather a truly international concern that require international regulation.

As concluding remarks to this chapter, we can summarize that the prac- tice of States in international treaties and other documents concerning the role and status of NGOs is not uniform, albeit recognizing their importance in one way or another. Additionally, one can observe that the more recent the document, the greater the participation of civil society, evidence that undoubtedly attests a evolutionary relevance in the international arena. Recalling protests against the WTO Conference in Seattle, in 1999, Charles-Albert Morand wrote that

‘por reprendre la distinction de Montesquieu, elles (les ONG) n’on pas directement la faculté de statuer, mas parfois la faculté d’empêcher. (…) Pour le juriste positiviste, cela ne représente rien, puisque formellement les Etats ne perdent pas leur monopole dans la formation du droit international. Mais sociologiquement et politi- quement cela représent l’irruption de la societé civile dans la vie in- ternationale. (...) Par leur action, les ONG peuvent infléchir l’appli- cation et l’interpretation des normes internationales, dans la mesure où elles dépendent du contexte, de l’opinion publique internationale.’140

As we will observe in the forthcoming chapters, NGOs are promoting changes in international custom and definitively affecting the decisions of judicial and quasi-judicial bodies.

Notes

1 H Hillgenberg, ‘A Fresh Look at Soft Law’ (1999) EJIL, v 10 n 3, 504.

2 The author of this study had this experience, when accredited as a member of the Brazilian delegation to the 2002 World Summit on Sustainable Development, in Johannesburg.

3 PH Baher, ‘Mobilization of the Conscience of Mankind: Conditions of Effectiveness of Human Rights NGOs’ in E. Denters, N. Schrijver (eds),Reflections of International Law from the Low Countries(Nijhoff, The Hague 1998) 135-155.

4 UN ECOSOC NGO Committee,The NGO Committee: a ten year review(New York 2008) 5.

5 H Hillgenberg,A Fresh Look at Soft Law(n 1) 501.

6 NGOs were instrumental in the drafting of the Declaration, as we can observe in UNGA Res. 217A (III) (10 December 1948).

7 This is the case of the World Tourism Organization, a specialized UN Agency, and the International Institute for Democracy and Electoral Assistance, an international organization headquartered in Sweden, which has, as members, States and intergo- vernmental organizations and, as associate members, international non-governmen- tal organizations, all with seats and voting rights at the Council.

8 Reparation for Injuries Suffered in the Service of the United Nations(Advisory Opinion) [1949] ICJ Rep 174.

9 Texaco Overseas Petroleum Company and California Asiatic Oil Company v Government of Libyan Republic(Merits) (1979) 53 ILR 389.

10 H Hillgenberg,A Fresh Look at Soft Law(n 1) 508. 11 H Hillgenberg,A Fresh Look at Soft Law(n 1) 509.

12 MR Sanches, ‘Atores na˜o estatais e sua relac¸a˜o com a Organizac¸a˜o Mundial do Come´rcio’, in A Amaral Junior,Direito do Comércio Internacional (Juarez Oliveira, Sa˜o Paulo 2002) 154.

13 CA Morand, ‘La Souverainete´, un concept de´passe´’, in LB de Chazournes and V Gowland-Debbas,The International Legal System in Quest of Equity and Universality

(Martinus Nijhoff, The Hague 2001) 174. 14 H Hillgenberg,A Fresh Look at Soft Law(n 1) 514.

15 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) UNTS 1760.

16 Legality on the Threat or Use of Nuclear Weapons(Advisory Opinion) [1996] ICJ Rep 226 para 29.

17 G Tunkin, ‘Is General International Law Customary Law Only?’ (1993) EJIL n 4, 541; B Fassbender, ‘The Better Peoples of the United Nations? Europe’s Practice and the United Nations’, (2004) EJIL, v 15 n 5, 879.

18 C Chinkin, ‘The Role of Non-Governmental Organisations in Standard Setting, Monitoring and Implementation of Human Rights’, in J Norton, M Andenas and M Focter,The Changing World of International Law in the Twenty-First Century: a tribute to the late Kenneth R. Simmonds,(Kluwer Law, The Hague 1998) 46.

19 Some authors consider that the ECOSOC ‘consultative’ status should be regarded as equal to ‘observer’. See, GFS Soares, ‘As ONGs e o direito internacional do meio am- biente’ Revista de Direito Ambiental, v 17, 21.

20 UN ECOSOC NGO Committee,The NGO Committee: a ten year review(New York 2008) 51.

21 UN NGLS mission statement available at http://www.un-ngls.org/ accessed on 15 March 2009

22 UNGA Report of the Secretary General on ‘Arrangements and practices for the inter- action of non-governmental organizations in all activities of the United Nations sys- tem’ (10 July 1998) UN Doc A/53/170.

23 ECOSOC Res 2/3 (21 June 1946) UN Doc E/43Rev.2. 24 UNGA Res 173 (III) (17 November 1947).

25 Doc A/943.Projet de réglementation pour la convocation des conférences internacio- nales: raport du Secrétaire General. Article 7: ‘Aux confe´rences d’Etats convoque´es conforme´ment au present re`glement, les institutions spe´cialise´es relie´es a` l’Organisation des Nations Unies et les organisations non gouvernamentales aux- quelles le Conseil a accorde´ le statut consultatif jouiront des memes droits and privi- leges qu’aux sessions do Conseil sous reserve des dispositions de l’article 2’. 26 AC Kiss,Repertóire de la pratique française em matiére de droit international public

(Centre National de la Recherche Scientifique, Paris 1962) v 5, 363. 27 UNGA Res 606 (VI) (1 February 1952).

28 AC Kiss,Repertóire de la pratique française(n 26) 366.

29 Just to summarize a few, we quote Resolutions 2435 (XXIII) (19 Dec 1968), 2717 (XXV) (15 Dec 1970), 3271 (XXIX) (10 Dec 1974), 31/149 (20 Dec 1976), 32/90 (13 Dec 1977), 34/56 (29 Nov 1979), 34/114 (14 Dec 1979), 35/34 (14 Nov 1980), 35/64 (5 Dec 1980), 57/299 (20 Dec 2002), 59/171, 59/193, 59/201 and 59/204 (all from 20 Dec 2004), and 60/161 (16 Dec 2005).

30 UNGA Res. 49/2 (19 October 1994). 31 UNGA Res. 54/195 (17 December 1999). 32 UNGA Res. 48/265 (24 August 1994). 33 UNGA Res. 52/250 (7 July 1998).

34 UNGA Report of the Secretary General on ‘Arrangements and practices for the inter- action of non-governmental organizations in all activities of the United Nations sys- tem’ (10 July 1998) UN Doc A/53/170 para 10.

35 Reparation for Injuries(n 8).

36 Although authorized to make relevant decisions by a two-thirds majority of the mem- bers present and voting (Article 18 para. 2, UN Charter).

37 H Hillgenberg,A Fresh Look at Soft Law(n 1) 514.

38 Although NGOs with consultative status, as a rule, should be accredited (ECOSOC Res. 1996/31 para. 42).

39 In 2009, the Council was composed of the following countries: Algeria, Barbados, Belarus, Bolivia, Brazil, Cameroon, Canada, Cape Verde, China, Congo, Coˆte d’Ivoire, El Salvador, Estonia, France, Germany, Greece, Guatemala, Guinea-Bissau, India, Indonesia, Iraq, Japan, Kazakhstan, Liechtenstein, Luxembourg, Malawi, Malaysia, Mauritius, Morocco, Mozambique, Namibia, Netherlands, New Zealand, Niger, Norway, Pakistan, Peru, Philippines, Poland, Portugal, Republic of Korea, Republic of Moldova, Romania, Russian Federation, Saint Kitts and Nevis, Saint Lucia, Saudi Arabia, Somalia, Sudan, Sweden, the United Kingdom, the United States, Uruguay and Venezuela.

40 JD Aston, ‘The United Nations Committee on Non-governmental Organizations: Guarding the Entrance of a Politically Divided House’, (2001) EJIL v 12 n 5, 943-962. 41 Albeit the existence of other ‘focal points’ and ‘unique’ interfaces of the UN with NGOs, as explained in the beginning of this chapter, the cited role of the Committee on NGOs was mentioned in a report available at < http://www.un.org/News/Press/ docs/2009/ecosoc6375.doc.htm>accessed 18 March 2009.

42 According to the Committee on NGO press reports available at http://esango.un.org/ paperless/Web?page=static&content=committee accessed 18 March 2009.

44 ECOSOC Res. 1996/31 para 8 prescribes that ‘national organizations (…) may be ad- mitted (…) after consultation with the Member State concerned. The views expressed by the Member State,if any, shall be communicated to the non-governmental organi- zation concerned, which shall have the opportunity to respond to those views through the Committee on Non-Governmental Organizations.

45 Dalits (untouchables) in India, women and gays in Muslim countries, Palestinians in Gaza and civil liberties in Cuba and China, just to quote a few.

46 B. Manin, in his workPrinciples of Representative Government,supports the centrality of mass communication in the current system of political representation, in which the media has replaced the parliament as thelocusof public debate.

47 JD Aston,The United Nations Committee(n 40).

48 UNGA Secretary General Report on ‘Views of Member States, Members of the Specialized Agencies, Observers, Intergovernmental and Non-Governmental Organizations From All Regions on the Report of the Secretary General on Arrangements and Practices for the Interaction of Non-Governmental Organizations in All Activities of the United Nations System’ (8 September 1999) Doc A/54/329. 49 JD Aston,The United Nations Committee(n 40) 951.

50 ECOSOC Res. 1297 (XLIV) (27 May 1968).

51 According to < http://www.un.org/dpi/ngosection/about-ngo-assoc.asp>accessed 20 March 2009.

52 See, in this regard and for association requirements < http://www.un.org/dpi/ngosec- tion/ngo-partnership.asp>accessed 20 March 2009.

53 The Arria Formula enables off-the-record consultation with people not admitted to Council meetings, such as NGOs, off of the Security Council’s premises. It was im- plemented in March 2002. See, J Paul,The Arria Formula(New York, 2003) < www. globalpolicy.org/security/mtgsetc/arria.htm>accessed 24 April 2009.

54 See, for example, A Cassese, ‘Terrorism is Also Disrupting Some Crucial Legal Categories of International Law’, (2001) EJIL, v12 n 5, 993; and F Hoffman, ‘Watershed or Phoenix from the Ashes? Speculations on the Future of International Law After the September 11 Attacks’, (2001) GLJ n 16, both written in the heat of the attacks. For a more comprehensive study, see RP Barnidge Jr,Non-State Actors and Terrorism(TMC Asser, The Hague, 2008).

55 Even before the attacks, several authors had supported the inadequacy of the Westphalian system of juxtaposed states for the 21st century international community and its failure in incorporating non-state actors. Some offered a provocative so-called ‘plausible’ conception of contemporary international law, arguing that the whole no- tion of ‘subjects’ or ‘objects’ has no credible reality and functional purpose, demand- ing the adoption of the concept of ‘participants’ in the international legal system,