LOCALIZACIÓN DE LA CAPACIDAD

(a) UNEP’s mandate

UNEP is the only UN body with a mandate to focus specifi cally on environmental issues. Although only a ‘programme’ it has been the most active UN body in the devel-opment of multilateral environmental agreements, as well as promoting treaty imple-mentation and coordinating some of the growing number of treaty secretariats and meetings of parties.¹⁰⁷ It was established as a subsidiary body by the General Assembly in 1972, following the Stockholm Conference.¹⁰⁸ Fift y-eight member states are elected triennially to its General Council by the General Assembly on the basis of equitable geographic distribution. UNEP’s original terms of reference envisaged a limited role:

To promote international cooperation in the fi eld of the environment and to recommend, as appropriate, policies to this end; [and] to provide general policy guidance for the direction and co-ordination of environmental programmes within a United Nations System.¹⁰⁹ UNEP was thus expected to act as a catalyst in developing and coordinating an envir-onmental focus in the programmes of other UN bodies rather than initiate action itself. Its fi rst director said its role was ‘to complexify’, that is, to ‘remind others of, and help them to take into account all the systems, interactions and ramifi cations implied in their work’. He observed that it was the lack of this sectoral, cross-disciplinary view that had led to many environmental problems.¹¹⁰

Th e status and future role of UNEP were the subject of debate before, during, and aft er the Rio Conference in 1992.¹¹¹ Although its activities had to some extent helped in ‘greening’ specialized agencies, including Th e World Bank, and resulted in some important lawmaking innovations, it had not succeeded in coordinating the environmental work of UN and other bodies. Moreover, the creation of the CSD, the Global Environment Facility (GEF), and an Inter-agency Committee on Sustainable Development, added yet more competing institutions with overlapping responsibil-ities, and potentially diluted UNEP’s infl uence within the UN system still further.

Th us it did not have a clear role in the 1992 Rio Conference. Proposals for transform-ing it into a specialized agency, or creattransform-ing a new environmental agency, attracted little support in the UNCED preparatory meetings. Developed states rejected both

107 UNCED Agenda 21, Ch 38, para H (1)(h); UNGA Res S/19-2, 19 September 1997; UNGA Res 53/242, 28 July 1999; 1997 Nairobi Declaration on the Role and Mandate of UNEP, adopted by UNEP Governing Council decision 19/1 (1997).

108 UNGA Res 2997 (XXVII) (1972). See generally, Birnie, 20 Melb ULR (1995) 80–93. ¹⁰⁹ Ibid.

110 UNEP Governing Council, Introductory Statement by the Executive Director (11 February 1975) UNEP/GC/31, UNEP/GC/31/Add 1, UNEP/GC/31/Add 2, UNEP/GC/31/Add 3.

111 See Tarasofsky in Chambers (ed), Reforming International Environmental Governance, 66; Desai, Institutionalizing International Environmental Law, 166–88; Kimball, Forging International Agreements:

Strengthening Intergovernmental Institutions for Environment and Development (Washington, 1992); Szasz, in Brown Weiss (ed), Environmental Change and International Law (Tokyo, 1992) 340; Th acher, in Hurrell and Kingsbury (eds), Th e International Politics of the Environment, 183; Sand, Lessons Learned in Global Environmental Governance (Washington DC, 1990).

the extra costs and political implications of such a change, and there was no enthusi-asm for more bureaucratization of the UN. Th ere was more support for strengthening UNEP in its existing role and location. Agenda 21 called on UNEP to promote cooper-ation on policymaking, monitoring, and assessment, and mandated it specifi cally to give priority, inter alia, to development of international environmental law, environ-mental impact assessment and auditing, dissemination of information, and promo-tion of regional and subregional cooperapromo-tion.¹¹² Yet another ‘priority’ was accorded to coordinating (‘clustering’) the growing number of environmental treaties, and their secretariats.¹¹³

A further attempt to enhance UNEP’s role fl owed from a special session of the General Assembly held in 1997 to review progress since Rio. Th e decision was taken to try to revitalize UNEP, establishing a Global Ministerial Forum to give it a more authoritative sense of direction and greater prominence within the UN system.¹¹⁴ Th e UN Environmental Programme was described as ‘the leading global environmental authority that sets the global environmental agenda, promotes the coherent implemen-tation of the environmental dimension of sustainable development within the United Nations system, and serves as an authoritative advocate for the global environment’.

Th e extended mandate envisaged in Agenda 21 was confi rmed. In particular, UNEP would assume responsibility for coordination of UN environmental treaties and their implementation, as well as the further development of international environmental law. It would also provide scientifi c, technical and policy advice to the Commission on Sustainable Development.

Subsequent decisions have sought to improve UNEP’s funding to enable it to carry out its responsibilities, have called for stronger linkages between UNEP and the GEF, and initiated a broader review of the UN’s whole range of environment-related bod-ies.¹¹⁵ Th ese are potentially signifi cant developments, which are consistent with the 2002 WSSD’s emphasis on greater coherence and collaboration between international institutions.¹¹⁶ It remains the case, however, that the WSSD specifi cally affi rmed the coordinating role of ECOSOC, not that of UNEP, and did nothing to re-arrange the present architecture of international environmental governance. It is hard to see how this can redress the ‘sense of policy incoherence among the diff erent international bodies dealing with environmental issues’.¹¹⁷

(b) UNEP’s role in developing international environmental law

It is notable that UNEP was not initially given a specifi c mandate to develop inter-national environmental law. Not until the adoption of Agenda 21 was such a task

112 UNCED Agenda 21, Ch 29.

113 Ibid, Ch 38, and UNGA Res 55/198 (2001). See infra, section 3(3).

114 UNGA Res S/19-2, Programme for the Further Implementation of Agenda 21, endorsing the Nairobi Declaration adopted at the 19th Governing session of UNEP in 1997. See Desai, 40 Ind JIL (2000) 455.

115 UNGA Res 53/242 (1999); 1997 Nairobi Declaration on the Role and Mandate of UNEP, adopted by UNEP Governing Council decision 19/1 (1997).

116 UN, Report of the WSSD, UN Doc A/CONF 199/20 (2002), ‘Plan of Implementation’, paras 139–40.

117 Tarasofsky in Chambers (ed), Reforming International Environmental Governance, 70.

explicitly envisaged. Nonetheless the necessity for promotion of both binding and non-binding instruments to achieve its purposes was appreciated from the outset.

An ambitious Environment Programme initiated in 1975 had only been partially achieved by the end of UNEP’s fi rst decade.¹¹⁸ In order to give greater focus to its sub-sequent lawmaking eff orts, a ‘Programme for the Development and Periodic Review of Environmental Law’ (referred to as the ‘Montevideo Programme’)¹¹⁹ was adopted in 1982. Th is established priorities for the following decade, and included the adop-tion of convenadop-tions on the ozone layer and transboundary transport of hazardous wastes. Th e Montevideo Programme would be implemented both by UNEP itself and jointly with other UN bodies, regional organizations, and NGOs including IUCN. It was revised in 1993 and again in 2001 to respond to the recommendations and deci-sions of UNCED and subsequent reviews.¹²⁰

Agenda 21, together with subsequent resolutions and decisions, for the fi rst time expressly mandated UNEP to undertake further development of international envir-onmental law, as well as promoting its implementation and coordinating the growing number of treaty secretariats and meetings of parties.¹²¹ Th e task of coordination was intended ‘to achieve coherence and compatibility, and to avoid overlapping or confl ict-ing regulation’, between existict-ing environmental regulatory regimes and new ones,¹²² but in performing this role, UNEP ‘should strive to promote the eff ective implemen-tation of those conventions in a manner consistent with the provisions of the conven-tions and the decisions of the parties’.¹²³

Principle 27 of the Rio Declaration and Chapter 39 of Agenda 21 also called for development of international law on sustainable development and set out certain objectives. Particular emphasis was placed on participation by developing countries, on taking account of their diff erent capabilities, on the need for international stand-ards to be based on consensus and non-discrimination, and for improvements in the implementation and administration of international agreements. At the request of the Commission on Sustainable Development, UNEP initiated a study of ‘the concept, requirements and implications of sustainable development and international law’.¹²⁴

118 See generally UNEP, Environmental Law in the UNEP (Nairobi, 1990); Petsonk, 5 Am UJILP (1990) 351; Desai, 40 Ind JIL (2000) 455.

119 Report of the Ad Hoc Meeting of Senior Government Offi cials Expert in Environmental Law, UNEP/GC 10/5/Add 2, Annex, Ch 11 (1981).

120 UNEP/Env Law/2/3 (1991), UNEP/Env Law/4/4 (2001).

121 Agenda 21, Ch 38, para H (1)(h); UNGA Res S/19-2 (1997); UNGA Res 53/242 (1999); Desai, 40 Ind JIL (2000) 455. See also the 1997 Nairobi Declaration on the Role and Mandate of UNEP, adopted by UNEP Governing Council decision 19/1 (1997) which refers to ‘international environmental law aiming at sustain-able development.’ Timoshenko and Berman, in Werksman (ed), Greening International Institutions, 43, conclude that: ‘Apparently, this mandate is wider than just the co-ordination of the environmental conven-tions’ secretariats, and includes the co-ordination of the whole process of international lawmaking in the fi eld of sustainable development.’

122 Timoshenko and Berman, loc cit, 43.

123 UNGA Res S/19-2 (1997) para 123. On the pros and cons of clustering MEAs see Oberthur in Chambers (ed), Reforming International Environmental Governance, 40–65.

124 Infra, Ch 3, section 3.

UNEP’s achievements are considerable, if measured purely by the number and importance of the legal instruments for which it has been responsible, but its catalytic role in the legal fi eld was clearly strongest during its fi rst two decades. Its contribution to international lawmaking can be grouped loosely into three categories: (i) conclu-sion of international agreements;¹²⁵ (ii) development of soft -law principles, guidelines, and standards;¹²⁶ (iii) provision of assistance for draft ing of national environmental legislation and administration in developing countries.¹²⁷ It pioneered both the use of so-called ‘framework treaties’ and ‘soft law’ instruments.¹²⁸ It has also sought to codify the law on shared natural resources.¹²⁹ Th e Regional Seas Programme introduced some innovatory concepts, such as protected areas and especially sensitive areas, and now covers some fourteen regions.¹³⁰ UNEP guidelines provided the basis for nego-tiation of the 1989 Basel Convention for the Control of Transboundary Movement of Hazardous Waste, and resulted in the adoption of further regional agreements, and more recently (with FAO) a Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade.¹³¹ Guidelines on environmental impact assessment have resulted in refi nement and adoption of these practices on a wider basis and their inclusion in the 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context.¹³²

We will examine in later chapters the results of UNEP’s lawmaking eff orts. Th eir approach has been based on fi rst formulating the scientifi c positions, then developing legal strategies, and in the process building political support. In the support-building process many compromises have to be arrived at, especially in the interests of main-taining a ‘sustainable development’ policy. Th us the conventions are replete with con-structive ambiguities and the more controversial issues are oft en left , at least initially, to soft law, the procedures and status of which are oft en made deliberately obscure.

125 Th ese include the so-called ‘Regional Seas Conventions’, on which see infra, Ch 7; 1979 Convention on the Conservation of Migratory Species of Wild Animals 1979, infra, Ch 12; 1985 Vienna Convention for the Protection of the Ozone Layer, infra, Ch 6; 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, infra, Ch 8; 1992 Convention on Biological Diversity, infra, Ch 11; 1998 Convention on the Prior Informed Consent for Certain Hazardous Chemicals and Pesticides in International Trade (in collaboration with FAO), infra, Ch 8; 2001 Convention on Persistent Organic Pollutants, infra, Ch 8.

126 Th ese include the 1978 Principles of Conduct in the Field of the Environment for the Guidance of states in the Conservation and Harmonious Utilisation of Natural Resources Shared by Two or More States;

1985 Montreal Guidelines for the Protection of the Marine Environment against Pollution from Land-based Sources; 1987 Conclusions on Legal Aspects Concerning the Environment related to Off shore Mining and Drilling Carried Out Within the Limits of National Jurisdiction; 1987 Cairo Guidelines and Principles for the Environmentally Sound Management of Hazardous Waste; 1987 Goals and Principles of Environmental Impact Assessment; 1989 London Guidelines for the Exchange of Information on Chemicals in International Trade; 1995 Global Programme of Action for the Protection of the Marine Environment from Land-based Activities; 2002 Guidelines on Compliance with and Enforcement of MEAs.

127 SeeUNEP, New Directions in Environmental Legislation and Administration Particularly in Developing Countries (Nairobi, 1989) and Environmental Law in the UNEP, 36–40.

128 Supra, Ch 1.

129 1978 Principles of Conduct etc in the Conservation and Harmonious Utilisation of Natural Resources Shared by Two or More States, infra, Chs 6, 11.

130 Infra, Ch 7. ¹³¹ Infra, Ch 8. ¹³² Infra, Ch 3, section 4(3).

Th e General Assembly only asked states to ‘use’ the UNEP Principles on Shared National Resources as ‘guidelines and recommendations in formulating conventions’;

the Weather Modifi cation Provisions were for ‘consideration in the formulation and implementation of programmes and activities’ relating to that fi eld;¹³³ the Off shore Mining Conclusions were to be considered ‘when formulating national legislation or undertaking negotiations for the conclusion of international agreements’.¹³⁴ In prom-ulgating the World Charter for Nature the General Assembly was more peremptory: it stated that ‘the principles set forth in the present Charter shall be refl ected in the law and practice of each State, as well as at the international level’, though this phraseology alone does not render this Charter binding.¹³⁵ Th e Montreal Guidelines on Land-based Pollution were addressed to ‘states and international organizations’, which were asked to ‘take them into account’ in the process of developing appropriate agreements and national legislation.¹³⁶ Th e Cairo Guidelines on Waste Management were merely addressed to states ‘with a view to assisting them in the process of developing policies’

for this purpose¹³⁷ and the London Guidelines on Information Exchange on Traded Chemicals were presented to them to ‘help them in the process of increasing chemical safety in all countries’.¹³⁸ Nonetheless, the distinction between ‘hard’ and ‘soft ’ law becomes blurred as states begin to act on these recommendations or incorporate them in treaties.