CHAPTER 1

ENVIRONMENTAL DIPLOMACY AND INTERNATIONAL COOPERATION

Negotiating Environmental Regimes

"No longer, it was hoped (after the Earth Summit in Rio in 1992), would environmental

issues be regarded as a luxury or afterthought. Rather, they would become a central part

of the policy-making process, integrated with economic and social development. "1

Mr. Kofi Annan,

Secretary General, United Nations

GLOBAL ENVIRONMENTAL POLITICS AND NEGOTIATIONS

The global environment has now emerged as a major issue area in world politics, along

with international security and global economy Growing international concern about the

global environment is no historical accident. It is, in fact, a belated response to the major

components of the biosphere, including the atmosphere and the oceans, soil cover, the

climate system, and the range of animal and plant species, that have been altered by the

intensity of human exploitation of the earth's resources since the industrial revolution.

An environmental issue is a result of an emergent change in the environment, caused or

influenced by human activity, with consequences arousing social concern and creating

problems leading to political action. 2 Most governments did not regard environmental issues

such as whaling, trade in endangered species, or the environmental protection of Antarctica

as major political issues. Indeed they were diplomatic backwater - the province of

conservationists and scientists. The weathering of superpower competition and the

appearance of a new set of global environmental issues gave environmental politics and

1 Message On World Environment Day from The United Nations Secretary General, 5 June 2002, UN Press Release, http://www.unep.org/Documents!Default.asp?DocumentiD=25 I&ArticleiD=3067 2 Lynton K Caldwell, International Environmental Policy- Emergence and Dimensions, II edition, (US: Duke University Press, I 990), p. I 1

diplomacy a new definition in world politics with special emphasis on the future of North­

South relations, the management of resources, and the formation of alliances for the

protection and preservation of environmental heritage.

Since the 1972 Stockholm Conference, environmental issues have gained momentum on

the international agenda. This has been perpetuated by a growing awareness of the

fragility of the planet and the realisation that unbridled interference with earth's

environment does indeed have serious consequences for our own sustainability.

The conduct of diplomacy on environmental issues, also referred to as environmental

diplomacy, is different in many ways from the traditional power and security paradigm of

international relations. It is characterized by trends, such as scientific complexity and

uncertainty of the issue; the cross-currents of social, economic and political implications;

the influence of public opinion; the participatory nature of the negotiations involving

government and civil society at all levels; and lastly, long time spans to solve

environmental problems are often longer than the typical 4-5 year mandates of

governments.

Traditional diplomacy has struggled to keep up with the challenges of environmental

diplomacy. While diplomats still exercise significant influence, many additional actors,

both state and non-state, are becoming increasingly involved in the diplomatic decision­

making processes. They include government agencies (other than the foreign office),

local government, academic communities, the business sector, media, NGOs and others.

Interconnected issues like environment, trade, and human rights can only be addressed

collectively by a large number of countries. These multilateral diplomatic issues directly

affect the society at large. Multilateral diplomacy needs to be understood as part of the

process of democratising the diplomatic decision-making process, cutting across national

boundaries.

Nations negotiate with one another on a wide array of issues, rangmg from senous

problems of war, peace, and disarmament to the more ordinary matters of boundary

disputes, fishing rights, foreign aid, immigration, and international trade. The issues

themselves have remained fairly constant over the centuries, but the environment of

2

diplomacy has changed considerably after World War II. Since 1945 stx principal

conditions emerged that has had an impact on the conduct of diplomacy: 3

a. Great improvements in communication and transportation have, in effect, shrunk

the size of the world. Events anywhere are known almost everywhere else

virtually immediately, and reaction time is therefore much shorter than it was

formerly. For example, an ambassador can convey news to a home government

instantly and receive a policy directive without delay.

b. The Cold War polarized the whole international community between the United

States and the Soviet Union. Diplomacy everywhere was executed under the

shadow of this hi-polarization. Even with the relaxation of this tension in the late

1980s and early 1990s and the collapse of the Soviet Union, the loyalties of the

world's nations remained divided to an extent, even though the concept of Non­

aligned Movement still exists among a group of nations.

c. There are many more nations in the world now than ever before. With the demise

of the colonial empires many new nation-states have emerged in Asia and Africa

each wishing to make its voice heard in the international fora. These nations are in

competition with one another and with the great powers, and they frequently

succeed in playing the great powers against each other to gain favour with one or

another. Many of these countries are poor and underdeveloped, constituting what

has been called the 'Third World'. Their problems place a burden on the

diplomacy of the industrialized nations. Many of these countries have great

natural resources, but many also have unstable governments.

d. During the Cold War the possession of vast arsenals of nuclear weapons by the

United States and the Soviet Union created a balance of terror, a situation in

which world war was supposedly unthinkable. Theoretically, then, every nation in

the world had a vital stake in striving for peace.

3 These six principal development have been displayed in t11e Article, at http :1 /www .comptons. com/encyclopedia/ AR Tl CLES/0050/00543488 A.html

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e. Although nuclear war is unthinkable, conventional war is not. There have been

more than 40 4 conventional wars since 1945. The contemporary world is saturated

with hot spots, such as Central America, the Middle East, the Far East, and

portions of South America, South Africa, Central Asia, and the Hom of Africa. In

addition to trouble spots, there is a tendency of many nations to interfere in the

affairs of other countries in order to destabilize their governments for economic or

political advantage.

f. The sixth factor affecting diplomacy is the existence of the United Nations and

other international organizations These organizations have not replaced bilateral

diplomacy, but they have created larger forums for the airing of national

viewpoints. These institutions have also taken up issues which need to be

addressed by a 'group of nations' for effective implementation. The concept of

'Green revolution' carried forward by environmental NGOs has successfully

carved a niche in the society to create awareness to environmental issues that

affect our existence.

The effect of these six factors is to limit the independence of each nation as it pursues its

foreign policy goals. The growing number of independent nation~ has led to increased

interdependence in the world as a whole. In this regard, is economic interdependence is

of special significant, an example worth quoting is the increase in the price of petroleum

in the 1970s, otherwise called the 'Oil Crisis'.

In the present scenario, major environmental issues of a global scale - global warming,

ozone depletion, deforestation, and loss of biodiversity - represent a pressing challenge

for international relations. Isolated unilateral or regional initiatives can no longer give

adequate response to these challenges· that can be only addressed through international

cooperation. 'Awareness has grown among politicians, economists, scientists and general

public as to the necessity of managing global environmental problems through

environmental regimes.

4 There are still others like Bloomsfield who say that there are more than 1000 wars. The exact number of con\"entional wars is much debated depending upon the factors t11at qualifies it to be counted and also on how it is such deductions are arrived upon.

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Global environmental politics is not a single issue but a complex of issues, each of

which has its own structure and dynamics. If the consequences are broad and applied

globally, or if the actors in the issue transcend a single region, it is regarded to be a global

environmental issue. Most global environmental politics involve multilateral negotiations

to reach global agreements aimed at reducing trans-national environmental hazards. With

the increasing awareness of global environmental issues, decision-making institutions are

under constant vigil and are often lobbied and pressurised by environmental NGOs and

media.

International cooperation on global issues can be achieved through negotiations, under

circumstances in which the environmental interests of States diverge. States have

different combinations of internal economic and political forces that influence their

policies towards environmental issues. The actual costs and risks of environmental

degradation are never distributed equally among all states. This makes some states less

motivated than others to participate in international efforts to reduce environmental

threats.

In fact, in every global environmental issue there is at least one, and sometimes more

than one group of States whose cooperation is so essential to a successful agreement for

coping with the environmental problem in question that they have an effective 'Veto

power' over the agreement When these States express their doubts or outright opposition

to the agreement, they become Veto States and form 'Veto Coalitions' 5.

Veto Coalitions constitute potential obstacles to effective international cooperation on

environmental issues, and their role is central to the dynamics of bargaining and

negotiations in global environmental politics. The importance of the Veto power can be

assessed by the fact that an economically powerful state may not be able to impose a

regime on a smaller state if the latter is strongly opposed to it Thus, some key developing

countries may credibly threaten to reject a global climate change agreement, even though

almost every industrialized state is now committed to a regime for regulating carbon

5 Gareth Porter & Lester Brown, Global Environmental Politics, (Boulder, Colorado, Westview Press, 1991), p. 17.

5

emission even though these developing states are dependent on highly industrialized

states for markets, capital flows and technology.

Therefore, success in overcoming obstacles to resolve a global environmental Issue

depends on the cooperation of the international community in combination of the

following four factors: a) key state leadership; b) incentives for veto states to support

regimes; c) political strength ofNGOs; support provided by multilateral institutions.

Negotiations -Games Or Debates?

Negotiation consists of a process of communication among states to arrive at a mutually

acceptable outcome on some issue or issues of shared concern. On the spectrum of

diplomatic activity it is to be distinguished, on one hand, from the simple exchange of

views and, on the other hand, from the practice of coercive diplomacy by which one party

attempts to impose it's wish unilaterally. 6

It is at this point that conflict theory can contribute to the analysis. In a 'game', 7 each

party tries to maximise its own pay off in terms of its interests and preferences, and does

not expect the other party's interests or preferences to change. In a 'debate'. each party

believes that its policy is based on some important truth which it must make others see

and act on, because it is, or should be, a truth for them as well as for itself In a game, the

question is: what incentives - carrots and sticks - can one devise for others so that it

becomes rational for them, in terms of their original preferences, to do what you want

them to do? In a debate, it is how can one induce others to see the world as one sees it?

Susskind and Ozawa8 tend to talk about international environmental diplomacy as if it

were essentially a debate, except when they discuss 'linkages'. Linkages imply bargains,

and thus games. If you agree to my getting X, which I want and you would rather not

concede to me but are prepared to, if necessary. I will agree to your getting Y, which you

want and which I am prepared to let you have, though I would have preferred not to. If

negotiations are conceived of as games, it makes no sense to provide assistance for other

" Raymond Cohen, Negotiating across cultures- Communication Obstacles in international diplomaC\·. (Washington DC, US Institute of Peace Press, 1991), p. 7. 7 Roderick Og1ey, 'Global Environmental Norms', in Jolm Vogler and Mark F. Imber (ed.), The Environment and International Relations. (London, Routledge, 1996), p. 61. 8 ibid, Roderick Ogley discusses the views put fortl1 by Lawrence Susskind and Ozawa in his article.

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parties with whom one expects to be bargaining. This will merely help them to drive a

harden bargain, in those negotiations conceived of as debates. However, this would be

useful, because it would help other parties to understand the truths that have been

discovered. Also, like legal aid for a defendant, it would ensure that, by presenting

aspects both ofthe situation and ofthe needs ofthe other party that might not have come

out had it not been properly advised, the body that has to decide the issue is in a better

position to reach an appropriate conclusion.

Treaty writing is usually treated as a zero-sum game. By the time countries come together

to negotiate treaty language, they have usually locked into a certain fixed position When

agreements do emerge, they are usually the result of compromises made by the most

powerful parties rather than the result of the creative resolution of differences

In a truly zero-sum game, there could be no point in negotiations. This means that the

parties are usually assumed to be on the 'contract curve', that is, in a situation where there

is no way that the proposals under discussion could be improved for all parties. Each

party, they allege, imagines that any amendment to its own proposal which would benefit

some other party must impose some cost, or reduction of benefit, to itself -- a very

closed-minded stance, which seems unlikely to hold good literally for any category of

genuine negotiations. Certainly, in negotiations about aspects of the environment, where

the facts are often novel and not easy to appraise, one would expect to find a 'debate'

element. But can such negotiations ever be a pure debate? Is there not always also an

element of 'game', because at least some countries' interests are opposed to those of other

countries?

Game theory would lead one to expect that since some states allegedly 'export' acid rain,

others suffer from 'importing' it. In this situation, effective norm-creation would be

unlikely since the former, who need to act on it, would have no incentive to.

Paradigms, Issues and Linkages

The growth of international environmental cooperation during the 1970s, as an aspect of

social transition, is basically an expression of mankind's relationship to earth. Social

7

scientists have called this vtew of human life on earth the "new environmental

paradigm" 9 The term paradigm used in this sense reflects the emergence of an

international movement for environmental protection. Evidently there has to be linkages

in the paradigm to help manifest itself more productively.

Peter Willets discusses four different linkage processes. 10 They are briefly examined

below:

1. Value linkages occur when we perceive different events to be part of the same

issue, because the same value is invoked.

2. Functional linkages arise when one action inevitably has a variety of

consequences that cannot be separated. In some cases the link may even be a

physical one, totally devoid of any political cause; the example has been given of

the Channel Tunnel: the act of digging hole linked environmental, health and

economic issues together.

3. Actor linkages will occur when one and the same set of actors are involved m

different issues and positions are taken in response to the status of the actors We

might expect virtually all policy in the Antarctic Treaty System to concern

environmental and economic values. However, the participation of the South

African government as a Consultative Party reluctably placed the issues invoked

by apartheid within the Antarctic policy system.

-1. Bargaining Linkages is a process of political interaction where vanous actors

agree to form coalitions to support each other's goals. One major example in

which environmental issues have been linked to other diverse issues is the UN

Convention on the Law of the Sea. None of the gains negotiated can be realised

unless the whole package is implemented, so none ofthe linkages can be broken

by individual actors.

9 Lynton K Caldwell, n 2, p. 20 10 Peter Willetts, "Who Cares About The Environment?" in Jolm Vogler and Mark F. Imber, The Enyironment and International Relations. (London, Routledge, 1996), p. 129-30

8

All four types of linkages may serve to create a 'policy system'. Value linkages, by

definition, only operate within a single-issue system, whereas the other three processes

are more likely to create linkages between a numbers of different issues. Responses to

other actors and to the bargaining processes are obviously themselves determined on the

basis of value preferences, though the different participants in a policy system are

probably not all responding to the same values. Both by definition and in terms of the

actual effects of a policy, functional linkages are clearly objective in nature. However,

these kinds of linkages will not affect politics, nor will they link different issues together

in a policy system, until their objective features are subjectively perceived. It may be

worth mentioning here that until the objective process of the erosion of the ozone layer

was perceived to exist and the subjective evaluation was made that action should be taken

to reduce CFCs in order to reduce deaths, there could be no political linkage.

The Traditional Realist approachj 1 can easily accommodate the idea that politics consists

of various issues that are related to each other through actor linkages and bargaining

I inkages. Functional linkages would here just be seen as physical constraints on the

exercise of power. The major departure from Realism made by a value-based paradigm is

the idea that an independent subjective process exists in which actors choose values to

support, pursue stakes to realise those values and mobilise other actors to support those

values.

The Global politics approach is to assume that the pursuit of values is the reason for

attaining power, rather than that the pursuit of power is the reason for adopting value

positions. To separate value linkages from actor linkages and bargaining linkages is to

claim that one central process, the process of perceiving the world, is not determined by

power. Policy systems can be seen as the focus for resolving conflicts between

environmental values and security or economic values. We have to accept the situation

where neither the Idealist presumption that international cooperation can and should

occur nor the Realist presumption that security and economic conflicts will limit such

cooperation. The outcome will depend on the priority accorded by political actors to the

values that can best be maximised through cooperation. The rise and growth of

environmental politics was only possible due to the absence of static objective national

II Ibid, p. 130

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interest and also because there is no constant ranking of values into issues that involve

either' high politics' or 'low politics' .12

INTERNATIONAL REGIMES IN ENVIRONMENTAL POLITICS AND

INTERNATIONAL COOPERATION

International regimes have been defined and re-defined over a period of time.

International regimes as defined by Gareth Porter and Lester Brown, ... '(it) is a set of

norms, rules or decisions making procedures, whether implicit or explicit that produces

some convergence in the actor's expectations in a particular issue area. ' This broad

definition may be applied to a wide range of international agreements, from coordination

of monetary relations to super-power relations.

An international regime has otherwise been defined as . . . 'a system of norms and rules

that are spec(fied by a multilateral legal instrument among states to regulate national

actions on a given issue. '13 The main form taken by multilateral legal instruments on

global environmental problem is the convention, which may contain all the binding

obligations expected to be negotiated or may be accompanied by a more detailed

instrument elaborating its rules and regulations. If it is negotiated in anticipation of later

elaborating texts, it is called 'a framework convention'. It is intended merely to provide a

set of principles, norms, and goals relating to a relevant issue. It normally imposes a few.

if any, specific and binding obligations on the parties. A framework convention assures

the negotiations, either simultaneously or upon its completion, of one or more protocols'

which spells out specific binding obligations of the parties to the framework convention.

When the negotiations of the framework convention and protocols are done in sequence,

rather than simultaneously, the stage of bargaining and regime creation may take several

years.

Partially, what the regime intends to promote depends on the patterns of interest of the

actors involved. There will always be some groups which will oppose changes affecting

others positively. As has already been discussed under Veto Coalition, pressure from

powerful states could be vital in securing and enforcing principles and norms. Non-

!2 Ibid, p. i3 i.

13 Gareth Porter & Lester Brown, n 6, p. 20.

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coercive forms of influence, such as existence of leaders, lobby groups or 'epistemic

communities' are also important. 14

The nature of issue area is also important. The scientific or social complexities of the

processes that the regime is aiming to manage or prevent will have an effect as will the

number and diversity of the actors involved. Moreover, international or public concern

'to do something about the problem' can be intensified through early warnings or

events. 15 The appearance of ozone hole over Antarctica and its subsequent analysis

helped to gather support to phase out CFCs and other ozone depleting substances.

Using the term regime a little more broadly than usual, world environmental regime can

be defined as a partially integrated collection of world level organisations,

understandings, and assumptions that specify the relationship of human society to

nature. 16 The environmental issues of global warming, sea level rise, ozone depletion etc.

have affected our surrounding environment to such an extent that it calls for a concerted

international effort. And this is where international cooperation and understanding of

highly sensitive issues find a place in international environment politics.

In the opening session of the Rio Summit, the Secretary General of 1992 L'0JCED, Dr

Maurice Strong strongly commented in the following words:

"The need for international cooperation is inescapable and growing almost

exponentially.. the United Nations and its system of agencies,

organisations and fora on which international cooperation depends ... they

represent not the precursors of world government but the basic framework

for a world system of governance which is imperative to the effective

functioning of global society." 17

14 Peter Haas, "Knowledge, Power and International Policy Coordination", International Organisation, vol. 46,no. I, 1992,~ 26 15 Owen Green, Environmental Regimes, in John Vogler and Mark F. Imber (ed.), The Emironment and International Relations, (London, Routledge, 1996), p. 200 16 John W. Meyer, David Jolm Frank, Ann Hironaka, Evan Schafer and Nancy Brandon Tuma, "The Structuring of a World Environmental Regime 1870-1990", International Organisation. \'Ol. 51, no. 4, Autumn 1997, p. 623 17 As reprinted in John Volgcr & Mark F. Imber, The Environment and International Relations, (London, Routledge, 1996), p. 8.

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In a world governed by respective nations, the disposition and ability of national

governments to make and honour agreements are fundamental conditions for

'international cooperation'. In today' s world of environmental concern, agreements and

treaties are sought to be accepted and implemented by almost all countries. Governments

are asked to cooperate in implementing these international agreements in which national

interests may be regarded even unclear. Perceived differences in national interests are the

primary obstacles to all international cooperation. In international efforts requiring

sustained coordination some nations may refuse to participate or may cooperate

ineffectively. Moreover, the disposition of nations to cooperate may vary with changes in

their governments of the day, as demonstrated in policy reversals by the government of

the US during the early 1980s. 18

The complexity associated with the trans-national/trans-border character of

environmental issues and the challenge thrown by the present problems present a

challenge to international cooperation taking into account the premise of exclusive

national sovereignty are quite evident. International environmental cooperation is

confronted by a paradox which is characteristic of the kind of issues in which the effects

of national policies transcend national boundaries. As noted, it is not realistically possible

for a nation to unilaterally administer and address issues which may involve other nations

as well. Each nation has to undertake its share of the action provided the action can be

apportioned by national jurisdiction. The inequality between nations can vary from the

dedication to the objectives of environmental cooperation to techno-scientific capabilities

to financial support to the cause The paradox that arises in such a situation is that

international cooperation is impossible without national concurrence, but mere

concurrence as a formality is insufficient to ensure effective cooperation. The solution to

this complex issue has been solved through creation of institutional structures19 capable of

operating with limited authority apart from the governments that created them. For

18 Lynton K. Caldwell, n.2, p. 13. 19 Prominent in tllis sense was the creation of UNEP in 1972, wllich proves to be an umbrella organisation in field of environment. IUCN, Greenpeace, WWF, Friends of the Earth, etc. Are other environmental organisations that have significantly developed institutional structures to address environmental issues.

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environmental issues, as with other areas of international relations, the structure of

international cooperation has been changing. 20

International cooperation tends to assume the efficacy of international law and

organisation. In many cases it builds directly upon regime analysis, which, s we have

seen, was principally directed during the 1970s and 1980s towards understanding

environmental management. In line with similar interest in the role of institutions, this

approach assumes institutions to be critical to the setting of agendas for coordination of

policies international level and most significantly to the environmentally related

behaviour of governments and other actors 21

Nonetheless, sustained international cooperation IS essential for tackling many

environmental problems relating to agreements negotiated by States, and the

development of institutions. They provide an important framework for the interactions

both between international and domestic actors and processes. Moreover, a regime

provides the basis for formulation and implementation of policies to tackle environmental

Issues.

Legitimacy Of International Regimes

Legitimacy of an international regime can be defined as the persuasive force of its norms.

procedures and role assigned. As such, legitimacy is manifested in a degree of positive

attitude to the regime: a regime is legitimate when specific rules are accepted by various

actors because they recognise the normative basis, the procedure through which they are

adopted and implemented, and the positions of actors in terms of rights and obligations.::

There are two characteristics of regime legitimacy. Firstly, unlike legality, legitimacy of

international regimes is a matter of degree: legitimacy runs the scale from complete

acclaim to complete rejection. Secondly, the legitimacy of international regimes is a

highly relative phenomenon: it may vary considerably between and within groups of

subjects and third parties, depending on their attitude towards the regime. It may also

:o Lmton Caldwell, n. 2, pp. 14-16. :J J~lm Volger & Mark F. Imber, n. 17, p. 8. :: OlaY Schram Stokke and Davor Vidas (ed.), Governing the Antarctic- the Effectiveness and Legitimacv of the Antarctic Treatv Svstem, (Cambridge, UK, Cambridge University Press, 1996), p. 23

13

vary over a period of time, due to changes in the nature of the problem, or subject matter,

addressed by a regime 23

For analytical purposes, two broad categories of legitimacy criteria 24 can be formulated:

a) the extent of applicability of the rules of the regime b) the level of acceptance of a

regime by relevant subjects.

For international regimes, applicability has both an internal and external aspects.

The internal aspect involves whether its rules are conducive to the solution of the

problem addressed and is internally consistent. To be externally applicable, the

normative and structural components ofthe regime must be consistent with major

developments in the international community. This involves placing a particular

regime in the wider normative order of the international community, and seeing

whether there is discord or harmony in their relationship.

The second criteria for regime legitimacy is acceptance. International regimes do

not operate in vacuum, but within broader international community. It also has

internal and external aspect. Among parties to a regime, acceptance is manifested

by acknowledging, implementing and adhering to regime provisions. It may also

be demonstrated by parties' presentation and support of the regime in wider

international fora or in interactions with other actors. Third parties can be

addressed by the regime either in general terms, as in formulations about the

'interest of all mankind', or more directly when regimes differentiate between

potential rights of third state 25 Also their rights or interests may be affected by the

regime. 26 The level of regime acceptance by these external factors will be

manifested through strength and persistence of their attitude on a scale ranging

23 J. Hertz, "Legitimacy, Can we retrieve it?", Comparative Politics, Vol. 10, no. 3, 1978, p. 320 24 Olav Schram Stokke & Davor Vidas, n. 22, p. 23. 25 Art. XIII, para I, of the Antarctic Treaty introduces such differentiation by stipulating that the treaty shall be open for accession by any state which is a member of the UN, while other states may accede only if invited to so so, with the consent of all Consultative Parties.

:6 Article X of the Antarctic Treaty obliges parties to the Treaty to 'exert appropriate efforts' to ensure that

no one engages in any activity in Antarctica contrary to the principles and purposes of the Treaty.

14

from open criticism, implied opposition, indifference, acquiescence,

acknowledgment or recognition and finally accession to the regime. 27

The evolution of regimes is conditioned by changes in a variety of social, economic,

technological and other aspects of international life. Before being fully established, a

regime passes through several stages of initiative, negotiation and adoption - then entry

into force. However, a de facto decline of a regime in political terms does not necessarily

imply the loss of legal force. A failed regime may remain, for a short or longer time,

legally in force- dubbed as a 'paper tiger' 28 Domestic policy and law often influence the

nation's approach to the regime by affecting the specific foreign policy of the state by

limiting the range of normative or structural arrangements which are acceptable to that

state. A process of change may be initiated by challenges to the regime, posed either by

changes in the nature of the problem or by parties to the regime or third parties. Such

challenges will put to test the ability of regime to adapt to a new situation. Sometimes

these changes may jeopardise the legitimacy of the regime, if it strives to change the

basic components ofthe Treaty.

INTERNATIONAL LIABILITY FOR ENVIRONMENTAL DAMAGE

The fundamental legal concept guiding relations between states is the sovereignty of

states. According to this principle, states are not restricted in the use of natural resources

within their territory as long as they do not interfere with the interests of other states

enjoying the same right. Hence, the principle of state sovereignty implies both the right of

an independent exploitation of existing natural resources and the right to inviolability of

the national territory. 29 Therefore, if an activity gives rise to transboundary environmental

damage or risks of such damage, the rights of the concerned states arising out of the same

international legal norm are at stake.

20 Olav Schram Stokke & Davor Vidas, n. 22, p. 25 :s ibid, p. 26 :

9 Both aspects are included in Principle 21 of the 'Declaration of Principles' adopted by the 'UN Conference on the Human Environment' in 1972; see the Final Report of the Conference, UN Doc. A/CONF.48/14/Rcv.1, 11 ILM (1972) 1416.

15

With continuing industrialization and increasing risks of transboundary environmental

damage, there is a growing need to establish specific rules that are precise enough to be

applicable and that are therefore apt to be 'effective'. However, a derivation of these

specific rules in the area oftransboundary environmental damage from the general law of

state responsibility involves a number of fundamental problems. According to the

traditional concept of international law, the notions of 'responsibility' and 'fault' are

closely interrelated. The establishment of the breach of a primary norm of international

law by the source state is the pre-condition for the right of the affected state to be

compensated for the damage suffered.30 If such a breach can be established, the source

state will be obliged to repair the whole damage. If it cannot be established, it will not be

liable to repair any part of it. Trans-boundary environmental damage is rarely repaired.

However, highly complex industrial activities create risks which can be minimized but

not completely eliminated The concept of state responsibility does not foresee any duty

to compensate for damage due to activities which are not prohibited by international law.

Furthermore, according to traditional international law, established legal wrongfulness of

an activity having caused transboundary harm entails the obligation to cease its operation

The source state cannot avoid this consequence even if it is prepared to repair the damage

which has occurred 31 In many cases, however, states have a strong interest in promoting

certain activities and in according them a status of lawfulness, although these activities

may entail transboundary risks. Therefore, such risks cannot be sufficiently regulated

even by a detailed codification of the law of state responsibility. On the contrary,

establishing too close a link between fault and the obligation to compensate for damage

frequently does not result in an internationally accepted ban of a particular dangerous

activity. But rather in a refusal by the source state to compensate; since any acceptance of

30 Thomas Gehring and Markus Jachtenfuchs, "Liability for Transboundary Environmental Damage, Towards a General Liability Regime?", Environmental Law Journal, (New York University Law School web), 1992, p. l 31 See Magraw, 'Transboundary Harm, The International Law Commission's Study of "International Liability"', 80 AJIL 1986, p. 318. For a contrary view see Boyle, 'State Responsibility and International Liability for Injurious Consequences of Acts not Prohibited by International Law, A Necessary Distinction?', 39 ICLQ, 1990, p. 12-14.

16

the duty to repair damage would imply acknowledgement of a violation of international

law and thus endanger the future operation of the activity in question.

In the past three decades, states have concluded a number of conventions containing primary

liability rules with respect to some specific risk creating activities, especially in the areas of

international maritime law, nuclear law, and space law. In some cases, they accept state

liability. This should however not lead to the conclusion that states were generally prepared

to be held liable for trans-national environmental damage. On the contrary, an examination

of the conventional regimes reveal a more differentiated picture of existing state practice

with far-reaching consequences for the future development of international law

ofnenvironmental liability. For a realistic analysis of the emergence and later application of

liability rules it is indispensable to take into account how these rules actually came into

being, to explore which groups participated in the law making process and to identify their

regulatory interests. 32

ENFORCEMENT AND COMPLIANCE MECHANISMS IN INTERNATIONAL

ENVIRONMENTAL AGREEMENTS: 33

As already discussed earlier, international agreements are based on the voluntary

acceptance by sovereign states that recognize it to be in their interest to sacrifice some

degree of sovereignty in return for commitments from others. At the same time, States

tend to comply with international legal obligations in order to maintain good standing in

the international community, besides finding the cost of non-compliance heavier than that

of compliance.

In most cases, states do comply with their international obligations but the extent of

compliance varies. They consider the longer-term advantages of compliance to outweigh

shorter-term gains obtained as a result of non-compliance in any specific instances.

International environmental agreements as yet haven't evolved to the extent of having

sophisticated centralized enforcement mechanisms to ensure strict compliance, thus

32 Thomas Gehring and Markus Jachtenfuchs, n. 30, p. 6 33 Scott A. Hajost and Quinlan J. Shea, "An Overview Of Enforcement And Compliance Mechanisms In I ntcmational Environmental Agreements"; http://www. inece.org/1 stvoll/hajost.htm

17

relying on government mechanism for enforcement As a result, their viability remains

dependent upon the good faith, efforts of parties to comply with stated obligations as in

the agreement, and abide by the decisions of organisations established there under.

While states generally comply voluntarily with their international obligations, there is an

additional supporting principle of international law that treaties must be observed - the

principle codified in the 1969 Vienna Convention on the Law of Treaties. Article 26 of

the Convention, entitled "pacta sunt servanda" provides that every treaty in force is

binding upon the parties to it and must be carried out by them in good faith. This

principle of customary and conventional international law underpins all the other

mechanisms embodied in international agreements concerning compliance and is the

most fundamental legal basis for the requirement that states meet their treaty obligations.

The informal means that states use to seek compliance to agreements from other parties,

include informal persuasion and consultation, as well as what has been termed the

"mobilization of shame" -the public identification and dissemination of specific acts of

non-compliance or questionable compliance. States generally prefer to settle their

differences through dialogue and quiet diplomacy, 34 and usually resort to more formal

and public means only after all other methods fail Under these less formal procedures

there may be dialogue and consultation among the parties to an agreement identification

of potential problems by a Secretariat to an agreement, and possibly discussions

concerning a state's compliance with the findings subsequently published in a report.

The principle of liability for environmental harm has been recognised even by governments

which least favour international action for the protection of environment There seems to be

no doubt about the liability of states for damages which they may cause (e.g. through

negligence) to the environment of other states. Principle 21 of the Stockholm Declaration

applies not only to this kind of damage, but also to the common spaces, to the environment

of areas beyond the limits of national jurisdiction (e.g. the upper atmosphere, the oceans and

the deep sea bed, the outer space and Antarctica), and the same principle is embodied in

34 Consider, for example, the U.S.-Canada acid rain dispute which, while public, has not been brought to formal dispute settlement procedures, or the French-New Zealand dispute over the sinking of the Greenpeacc vessel the "Rainbow Warrior."

18

Article 21 (d) of the World Charter for Nature, and in many marine pollution conventions,

including the UN Law of the Sea (1982). However, under the present state of international

law, this liability is not regarded as absolute except for nuclear damage or in relation to outer

space. Yet even in these cases the acceptance or enforcement of liability is highly uncertain,

an apt example is the trans-boundary effects of the Chernobyl nuclear disaster. 35

Compliance with International Environmental Agreements

The concept of an international law of the environment is relatively new. It is principally

a result of twentieth century technological advances and a corresponding increased

understanding of the environmental consequences. There has been a growing recognition

that "pollution and other sorts of environmental harm are propagated regardless of state

sovereignty and its limits," and that, accordingly, "the struggle against it must be

internatio'1al."36 Furthermore, "the quality of the environment and natural resource

management are no longer regarded as solely domestic concerns, for em·ironmental

impacts may be much more wide-ranging: they may dramatically affect foreign

economies, or public health, and they may even ignite belligerent actions."r

Focusing specifically on the past solutions available to address the harm done to the

environment, legal actions were originally taken within the existing structure of

international law which placed little emphasis on the environment. For example, in older

treaties involving environmental-related disputes, established principles of international

law were extended to cover the issues in question, rather than legal concepts being

modified to incorporate environmental concepts38 In essence, two principles of

international iaw traditionaily have been applied to environmental issues. First. "a nation

should not permit action within its territorial jurisdiction to harm the interest of other

35 Lynton K Caldwell, n. 2, p.l22 36 A Kiss, "Survey of Current Developments", International Environmental Law 12, (1976). See also Benedick, Environment in the Foreign Policy Agenda, Department of State Bulletin 55, (June 1986). 37 "Directions of Environmental Law in the International System, An Assessment of Tasks and Challenges

I

for Lawyers, in Environmental Pollution and Individual Rights", An International Symposium (1978), p. 192-4. 3

H Lynton K Caldwell, "Concepts in Development of International Environmental Policies'·. International Environmental Law 12, (1974).

19

nations." 39 Second, "nations should cooperate to serve the mutual interests of their

respective peoples." In recent years, there has evolved the concept that international

cooperation should, when necessary, take the form of legal efforts to protect the

environment and that international law should recognize the human right to a "clean,

pure, healthy, and even decent environment"

General Characteristics of State Liability

There exists no universal treaty governing liability for trans-boundary environmental

damage, the treaties that are in effect generally address a particular issue, be it acid rain

or climate change. In the absence of a binding agreement between nations, injured

parties must look to international law, one cornerstone of which is treaty law. The

advantages and necessity of bilateral and multilateral agreements for international

environmental issues are obvious. There are limits to the scope of environmental harm to

which even the most powerful country can respond unilaterally. For example. the oceans

are particularly difficult to protect exclusively on the national level given the existence of

borders and the right of free passage for foreign vessels through coastal waters.

International agreements between countries provide the most direct means of prevention

and control as they lay down rules and regulations to maintain particular and precise

environmental standards. Upon ratification, the provisions containing these standards

immediately acquire an obligatory character under the terms of the agreement ,0

While treaties offer an opportunity to address specific non-compliance with

environmental standards, they contain significant limitations. The most obvious among

them is the fact that a group of interested or affected states must arrive at a consensus as

to the scope and contents of the agreement. Differing perceptions of national self-interest

and the historical reluctance to commit to overly restrictive rules can make this a difficult

process. Common environmentai standards may be seen as imposing unfair economic

burdens, for example, particularly on developing countries. Thus, the net result of

39 Refer to Corfu Channel Case (U.K. v. Alb.), 1949 ICJ 4. See also Principle 21 of the Stockholm Declaration. 4° Convention on t11e Protection of the Marine Environment oft11e Baltic Sea Area, ILM, vol. 13, (22 March 1974), p. 547.

20

-\.

-I ~-

negotiations may be weak obligations that reflect the "lowest common denominator"

among the signatories. 41

A breach of the agreement, particularly a multilateral agreement, may affect one country

in particular or a group of countries as a whole. Whenever the rights and interests of one

state are "specifically affected," that state suffers a particular injury which under the law

of international responsibility is supposed to be treated exactly as is any other particular

injury. 42 The affected state is an "injured state" that which owed an obligation to make

"reparation in an adequate form." The problem becomes more complicated when the

breach of a multilateral agreement does not affect one state in particular, but all the

signatory countries. It is well established that the affected states collectively suffer an

injury and are entitled to claim adequate reparation.

It is important to note that treaties provide for collective and unilateral remedies against a

violating state. Collective reparation can be found in the provisions of the constitutive

charters of international organizations which provide for remedies against a defaulting

party. For example, Article 19 of the United Nations Charter provides for a collective

remedy insofar as the General Assembly may suspend the voting rights of a state in

default of payment.

When a treaty does not include provisions addressing the consequences of a violation, the

situation is more complex. In many instances, one of the affected states might choose to

take steps to unilaterally rectify the violation. The traditional approach to this eventuality

links the lawfulness of any unilateral action to an actual and identifiable injury to the

aggrieved country. Unfortunately, this approach is flawed with respect to its application

to treaty law. 43

11 J. L. Hargrove, Post-Stockholm, "Influencing National Environmental Law and Practice lltrough International Law and Policy", Proceedings 66, American Societv oflntemational Law, 1972. :: Article 60(2)(b) of the Vienna Convention on the Law of Treaties. 43 Scott A. Hajost, n. 34.

THESIS 341 .2909989 02295 En

llllllllllllllllllllllll/1 II Ill TH10394

21

Enforcement and Compliance Mechanisms

(a) Reparations

Whatever the legal approach, once it is determined that a state is out of compliance or

has otherwise violated a substantive provision of an agreement, a variety of legal

consequences may follow. The general rule stated by the Permanent Court of

International Justice in the Chorzow Factory case, namely that a breach of an obligation

triggers a second obligation to make reparation, is applicable. Reparation should as far as

possible, erase the consequences of the violation and re-establish the situation which

would have existed if that violation had not been committed. Because restoration of the

status quo ante is usually not possible or feasible once environmental damage has

occurred, other means must be found to satisfy the injured parties.

International agreements often contain provisions governing the settlement of disputes

which may arise in the context of reparation negotiations. One relatively infrequently

used means of reparation worth noting is a declaratory judgment which, when made by

an appropriate international tribunal, may provide satisfaction to an injured party. Though

a simple finding in favour of the injured state may not restore the environment, it may

have a deterrent effect on the violating state on its future behaviour.

Though compliance mechanisms such as reporting requirements can come into play as

forms of reparations, they are commonly present as independent provisions of

international environmental agreements. The two most effective forms of reparation are

the payment of compensation for damage already done and pollution abatement, which

involves the cessation or modification of the violator's behaviour.

(!;U Compensation

Compensation is a common form of reparation where restitution in kind is not practical.

The general rule is that a monetary payment for damage suffered is appropriate. There

are, however, variances, particularly to provide some new benefit to the injured party to

make up for its loss. For example, the Finland-USSR frontier treaty allows the two

22

countries to "make reparation for any loss for damage caused ... by granting the Party

suffering the loss or damage certain privileges in the watercourse of the other Party."44

The criteria for determining the actual award when monetary compensation is given are

complex and, of course, depend on the forum in which a claim is presented. It may also

be difficult to assess the value of the affected environmental resources.

Two further collateral issues may be considered. The first is the possibility of assessing

punitive damages as a deterrent in especially egregious cases. Though the decisions of

international tribunals offer little support for such an approach, the International Law

Commission (ILC) has attempted to define a category of "international crimes" whose

commission might warrant more than normal reparation. Where international

environmental agreements address liability, they typically do nothing more than call upon

the parties to develop liability systems.

A second collateral issue is the role of liability-limiting agreements which are attempts

by countries to limit the potential for huge claims following events such as the Bhopal

disaster, or the Amoco Cadiz and Exxon Valdez super tanker spills. Some countries, such

as the United States, have refused to ratify conventions whose liability pro\isions they

consider to be inadequate according to their legal and political judgment. and instead

utilize the enforcement provisions of domestic legislation to govern liability issue like

spills from vessels entering their ports.

The Liability issue in the Antarctic Treaty System is under considerable discussion and

debate for the last I 0 years, i.e. since the signing of the Madrid Protocol in 1991. By

being a contentious issue it requires a lot of compromises and assurances by the

Contracting parties. The last ATCM at St. Petersburg, Russia, saw a progress towards an

amicable solution to some issues, even then these issues are far from over.

44 "Helsinki Rules on the Uses of the Waters of International Rivers," Report of the Fifty-Fifth Conference, (Helsinki, 1966), p. 503.

23

[0 Pollution Abatement

Compensation, while an important means of making an injured party whole, will not

prevent a reoccurrence of identical or similar activities by the violating party. It is

reasonable to expect that provisions will be made to eliminate or modify environmentally

detrimental behaviour. At the same time, the total cessation of an injurious activity may

not be necessary except in extreme circumstances such as where there is a need for a

prohibition on the manufacturing and export of dangerous substances, or the dumping of

hazardous wastes in a certain body ofwater.

It is far more common for states to agree to liability regimes that entail an obligation to

minimize or reduce those detrimental effects rather than to completely cease activity.

Typically, the violator's abatement obligation is qualified by language such as "in so far

as such measures are economically feasible." The Finland-Sweden Frontier Rivers

Agreement, which calls for the cessation of construction that "injures a substantial public

interest," is modified to the extent that it provides that construction can resume "on the

condition it is of particular importance for the economy "

(ill Compliance Monitoring

Growing international concern over environmental problems has led to the inclusion of a

wide array of enforcement and liability provisions in bilateral and multilateral agreements

which govern the behaviour of states after environmental injuries have already occurred.

Scholars have increasingly noted that by approaching environmental problems from a

liability perspective, adversarial confrontations are regulated but not reduced.

Furthermore, there is no corresponding benefit to the environment. It is appropriate that

enforcement provisions should be supplemented by provisions for prevention of

environmental damage, thereby, requiring the states to take some preventi\·e measures

even before commencing environmentally threatening activities.

w Evaluation Requirements

An essential issue is the weight that a state must g1ve m its internal management

decisions to the trans-boundary impact of environmentally dangerous activities.

24

The need for proper environmental planning was a major theme at the 1972 Stockholm

Conference on the Human Environment; Principle 17 of the declaration states that

"appropriate national institutions must be entrusted with the task of planning, managing

or controlling the environmental resources of states with a view to enhancing

environmental quality". General state practice reflects the concern that states share with

respect to boundary and frontier resources. Many early treaties, however, are

exceptionally vague in defining the obligations entailed in applicable provisions; the

1960 Frontier Treaty between the Netherlands and Federal Republic of Germany only

references the "due regard" each is expected to give to the other's "interest in the

boundary waters". The Nordic Convention is more precise in that parties must treat the

damaging effects that environmentally-threatening activities might cause in another

country as ifthey were created domestically.

At the present time, the institution of the environmental impact assessment process is a

basic principle which is reflected in a multitude of international agreements which vary in

the degree to which they are legally binding. The following, for example, have the force

of treaty: the 1985 Agreement of the Association of South-East Asian ~ations on

Conservation of Nature and Natural Resources (Articles 14, 19, and 20); the Convention

on Protection and Utilizing the Aquatic Environment of the Caspian Region (Article 12)

Annex I ofthe Protocol on Environmental Protection to the Antarctic Treatv extensivelv

covers the provision for EIA for activities in Antarctica and Southern Oceans.

ill Notification Requirement

The duty to notify states of possible trans-boundary harm is an emerging principle of

international environmental law. In the context of the Chernobyl incident, the United

States concluded that the Soviet Union had a duty to notify. (After Chernobyl, the IAEA

rapidly adopted in 1986 Convention on Early Notification of a Nuclear Accident.) OECD

policies promulgated by the Nuclear Energy Agency (NEA) often serve as the basis for

some international organizations as well as a means of raising public awareness. The

OECD has attempted to expand international law relating to trans-boundary air pollution

by developing further the principles of notification and consultation. Requirements for

25

notifying others in risk of environmental harm have been most developed in the marine

environment context. It may be noted that The Antarctic Treaty parties have adopted a

binding recommendation on environmental impact assessment; the report of contracting

party conducting lEEs and CEEs is tabled at the annual A TCMs.

Many international agreements require there to be a certain level of potential damage

before there is a duty to inform, a threshold often loosely described only as "significant

harm". Further, while some agreements contain standards as to the timeliness of

notification, others do not. An exception to the general rule is the Moon Treaty which

does not suffer from vagueness, in that it obligates all parties to notify the Secretary

General of the United Nations before any radioactive materials can be placed on the

moon, regardless of the level of environmental damage posed 45

(g) Consultation Requirement

The duty to consult theoretically also arises when a proposed activity is expected to cause

a level of damage that may be higher than that required for the duty to inform. Because

consultations can involve extensive discussions and potential liability, it is a duty which

states in some cases may be unwilling to comply with, including the supply of

rudimentary information to the affected states.

Most of the consultation standards that exist in international agreements lack specific

guidance on the degree of threatened environmental damage and the duty to consult other

states. While the normal presumption is that a state requesting consultations must

demonstrate the consultation procedure that would be established by the Council of

Europe in the draft European Convention for the Protection oflnternational Watercourses

Against Pollution and it also adopts a significantly different approach. Article 12

requires automatic consultations among all relevant parties at the request of any one

party. The burden is shifted to any state that wants to avoid consultations to demonstrate

that it is not "bound to enter into negotiations''

45 "United Nations Agreement Concerning the Activities of States on the Moon and Other Celestial Bodies", UN General Assembly Res. 34/68, (5 December 1979).

26

While the ultimate objective of consultation is the resolution of disputes between parties,

the provisions of various international agreements require different results. Though many

conventions do refer to the negotiation of an explicit agreement as the objective of

consultation, it is often unclear what the results will be if the parties are unable to agree.

In such cases, probably a third-party intervention to facilitate an agreement may be

appropriate.

Dispute Resolution Mechanisms

Article 2, paragraph 3 of the U.N. Charter requires that: "All Members shall settle their

international disputes by peaceful means in such a manner that international peace and

security, and justice, are not endangered." The U.N. General Assembly, in adopting the

I 982 Manila Declaration on the Peaceful Settlement of Disputes, emphasized the "need

to exert utmost efforts in order to settle any conflicts and disputes between states

exclusi\'ely by peaceful means" and that "the question of the peaceful settlement of

disputes should represent one of the central concerns for states and for the United

Nations". "6

When national governments engage in activities which irreparably damage the global

environment and threaten human health, their behaviour may give rise to disputes. As

noted earlier, claims brought by other states for breach of obligations under international

law or under treaty can usually be handled through traditional interstate dispute resolution

processes such as diplomacy and adjudication. As to treaty agreements, there frequently

exists not only general obligations of peaceful settlement, but also requirements or

recommendations related to the use of specific dispute resolution techniques such a

negotiation, conciliation and arbitration. At the present time, there are over 250 bilateral

and multilateral agreements that incorporate "compromissory clauses" or other

obligations to settle disputes peacefully47 The International Court of Justice has been

identified time and again, as a possible forum for resolving disputes as to the

interpretation or application ofthe agreements.

"6 UN General Assembly Res 37/10, (15 November 1982).

"7 Scott A. Hajost, n. 34.

27

The principal element differentiating the various dispute resolution techniques is the

extent to which third parties can legitimately participate in helping to bring about or

determining the settlement and, conversely, the extent to which the parties can reject a

settlement proposed by the third party. In practice, distinctions between these techniques

may be more theoretical than real, and a particular process of dispute settlement may

combine elements of several techniques.

Settlement Procedures

(a) Negotiation

Negotiation is a process whereby the parties directly communicate and bargain with each

other in an attempt to agree on a settlement of the issue. By choosing to employ this

technique, parties retain maximum control ofthe dispute resolution process and outcome.

Negotiation is clearly the predominant and preferred method of resolving disputes. The

use of other techniques, including adjudication, is invariably preceded, accompanied by

and arranged through some sort of negotiation process.

Many existing environmental agreements require notification, and it may be considered

part of the state's consultation duty In most instances, negotiation is required only in

response to a specific problem and only when it has reached a certain threshold of

seriousness. This also allows for an early identification of potential areas of disagreement

as well as an opportunity to agree on other contentious issues.

Third parties interventions can facilitate negotiations. Through investigation and analysis,

they provide a neutral body of data to serve as the basis for negotiations and, recommend

appropriate measures. Third parties can also encourage dispute resolution through

meditation and conciliation.

(b) Arbitration

This technique involves the referral of the dispute by agreement of the parties, or at the

request of one party depending on the agreement, to an ad hoc tribunal for a decision

usually on the basis of international law. The parties to the dispute establish in advance

28

the issue or issues to be arbitrated and the machinery and procedure of the tribunal,

including the method of selection of the arbitrator. While arbitration is normally binding,

the parties can agree in advance that the tribunal's opinion will only be advisory.

Although there are few arbitral decisions on record involving environmental disputes,

many international environmental agreements rely on arbitration as the primary means of

dispute settlement should negotiations between the parties prove unproductive. For

example: The Baltic Sea Convention declares that states "shall" use arbitration if

negotiation and mediation fail. However, the agreement further notes that this will require

"common agreement" among the parties to the dispute and does not describe the arbitral

process. Many agreements outline in detail an arbitral process that must proceed at a

prescribed time, even if one party is uncooperative.

(c) Adjudication

This technique involves the referral of the dispute, by agreement or consent of the

parties, to the International Court of Justice or some other standing and permanent

judicial body for a binding decision, usually on the basis of international law. As in the

case of arbitration, and if the rules establishing the court allow, the parties may agree to

advisory or non-binding opinion rather than a binding decision, or to a declaratory

judgment specifying the principles which the parties should apply in the settlement of

their dispute. A declaratory judgment was issued in the North Sea Continental Shelf case.

Several environmental agreements contain provisions encouraging parties to submit their

disputes to the ICJ, as a last resort. In practice, disputes normally come before the court

only after the parties agree to refer their differences to the court. Provision is made in

Article 36 of the ICJ Statute for compulsory jurisdiction when both parties have

previously submitted declarations accepting the court's jurisdiction with regard to that

agreement or dispute, or when treaties in force between them authorize referral to the

court. The right of the court to determine its own jurisdiction enhances its ability to hear

cases even when one of the parties refuses to appear.

29

Enforcement and Compliance Provisions: Practical Applications

There are several additional requirements, such as reporting obligations and the duty to

adopt appropriate domestic legal measure that may be found in international

environmental agreements. With the exception of liability provisions, which are rarely

encountered, these additional requirements generally track the mechanisms discussed in

preceding sections, such as consultation, monitoring and dispute settlement.

(a) Duty to Legislate

As already discussed, parties to international agreements are bound by general

international law to carry out their treaty obligations, which include the adoption of

appropriate and necessary domestic legal measures. This helps to assure other parties

that each state has taken the required domestic steps to review and implement obligations.

Many agreements contain explicit language obligating states to adopt national legislation

aimed at preventing and punishing violations ofthe agreement.

An apt example is that of the 1972 Convention on the Prevention of Marine Pollution by

Dumping of Wastes and Other Matter (the London Dumping Convention or LDC) which

provides that each party is to take "appropriate measures to prevent and punish conduct in

contravention of the Convention". Under the 1978 Protocol Relating to the International

Convention for Prevention of Marine Pollution .. from Ships (MARPOL), parties are

obligated to provide the Secretariat with texts of laws, orders, decrees, regulations and

other instruments promulgated for purposes of the convention, and to establish sanctions

pursuant to their domestic laws in the event of violations thereof Under the 1973

Convention on International Trade in Endangered Species of Wild Fauna and Flora

(CITES), parties are obligated to report biennially on all legislative, regulatory and

administrative measures taken to enforce the convention and to take measures to penalize

trade in violation ofthe convention.

The 1972 Convention for the Protection of the World Cultural and Natural Heritage

requires that parties should take appropriate legal and administrative measures for the

identification and conservation of "natural heritage," including the habitats of threatened

30

species, and that they report to the General Conference of the United Nations Educational

Scientific and Cultural Organization (UNESCO) information on the legislative and

administrative provisions they have adopted in accordance with the convention.

The United Nations Environment Programme (UNEP) Regional Seas Agreements for the

Mediterranean and the Wider Caribbean generally provide that parties shall take

appropriate measures to discharge their obligations, as well as report regularly to the

meetings ofthe parties.

The LRT AP Convention generally provides for the development of "policies" for

combating air pollution, and for the exchange of information thereon, including major

changes in national policies likely to cause significant changes in long-range

transboundary air pollution National policy reports are a regular agenda item at meetings

ofthe parties.

The 1985 Vienna Convention on the Protection of the Ozone Layer, which is patterned

after the UNEP Regional Seas agreements, obliges the parties to adopt appropriate

legislative or administrative measures and to transmit such information to meetings of the

parties (In response to the concerns of developing countries, the obligation to legislative,

among other general obligations, was qualified by a party's capabilities.) Interestingly,

while the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer contains

more detailed obligations than its parent Vienna Convention which does not contain a

specific provision on adopting and reporting on legislative measures.

The 1989 Basel Convention on the Control of Trans-boundary Movement of Hazardous

Wastes and their Disposal requires that each party undertake the appropriate legal and

administrative measures necessary to implement and enforce the convention including

measures to prevent and punish ccnduct in violation thereof

Many Contracting parties to the 1991 Protocol on Environment Protection to the

Antarctic Treaty (henceforth referred to as Madrid Protocol) have enacted domestic

legislations to implement and enforce the provisions of the protocol. This protocol,

31

however, doesn't make it mandatory for all parties to enact separate legislations but may

adopt the provisions through decrees and other instruments.

(b) Reporting Obligations

International environmental agreements generally incorporate reporting requirements

which affect specific aspects of the agreement's implementation, including the collection

of data, record keeping, and other activities, such as the reporting of national legislative

actions previously discussed. In general, reports are prepared and submitted by states at

specified intervals and in a specified format for distribution to other parties. Not only

does the information provide assurances as to the compliance of statues by states, but it

also promotes future effective implementation by virtue of access to an expanding

database.

The LDC provides a good example of contemporary reporting requirements Parties are

required to inform the Secretariat, inter alia, of any acts of dumping that occurred without

a permit in cases of force majeure, of any acts of prohibited wastes in non force majeure

ernergency situations (Ai1icle V, 1 and 2), and of all dumping permits issued, including

the nature, quantities, location and timing of permissible acts of dumping (.-\rticle VI,

and 4).

CITES reqmres that records be kept of all transactions involving protected species,

including the types of permits authorized Furthermore, a party must report annually to

the Secretariat (Article VIII, 6 and 7) Such reports allow the parties to CITES to

ascertain the volume of trade in a given species as well as to review the propriety of

permits issued.

MARPOL mandates that parties report on required certificates, such as for the

seaworthiness of vessels, provide a list and description of reception facilities (as they are

required to provide adequate facilities), and report the penalties imposed annually

(Article 11).

The LR TAP Convention contains one general reporting obligation, namely that parties

exchange data on the emissions of air pollutants and the amount of emissions that cross

32

national borders (Article 8). On the other hand, the Convention's NOx Protocol contains

detailed reporting obligations, including the reporting of levels of national annual

emissions, and calculations on progress made in establishing required national emission

standards for pollution control measures and the availability of unleaded fuel (Article 8).

The Montreal Protocol also contains precise reporting requirements relating to annual

production and imports and exports of controlled substances (Article 7), and requires that

parties notify the Secretariat of any allowed transfer of production between parties and of

any addition to calculated production levels allowed by the Protocol. Reporting of the

data enables the Secretariat and the parties to be assured that other parties are meeting

their consumption level under the defined baselines.

The Basel Convention requires parties to report annually to the Secretariat information

relating to the amount and types of wastes governed by the convention which are

exported and imported More specifically, information is required on disposal operations

and efforts to reduce the amount of waste subject to trans-boundary movements. As one

of the objectives of the convention is to minimize waste generation and trans-boundary

movements, this information is ofparticular interest.

Article I 7 of the I 99 I Madrid Protocol, provides for 'Annual Reporting' by Parties on

steps taken to implement the protocol. Such reports are to include provisions under Art.

13 (3), i.e. Compliance with the protocol; and Art. I 5, i.e. Emergency Response Action.

As per the provision these reports are tabled at the Annual A TCMs, circulated to all

Contracting Parties, discussed and made publicly available. This provision is made to

ensure scientific and peaceful use of Antarctica.

Important requirements address many concerns, not simply those relating to enforcement,

and thesemay indeed serve a dual purpose. Information provided under the agreement

serves not only as a basis for determining compliance, but also as a basis for determining

whether the objectives of the agreement are being met, or whether new policies need to

be developed.

33

(c) Specific Compliance Procedures

A number of international environmental agreements contain specific procedures relating

to the review and detection of compliance or non-compliance. These procedures may

take a variety of forms, including a specific role for the Secretariat. For example, under

CITES, the Secretariat is empowered to study reports of the parties arid request any

information it deems necessary to ensure the implementation of the Convention and to

focus the attention ofthe parties on any pertinent matter (Article XII, 2(d) and (e)). The

Convention also provides for the Secretariat to notify a party directly if it believes that

the Convention is not being effectively implemented, whereupon the party in question

will be required to respond. (It may also request for an inquiry, with related information

being furnished for the next meeting of the parties) (Article X). The CITES example

represents one of the more independent Secretariats in the environmental field.

Frequently, the Secretariat's authority is more limited.

The marine field incorporates some of the most highly developed enforcement and

compliance procedures. It is in marine environmental agreements that actual inspection

procedures involving other parties have been developed. Other environmental

agreements must rely on reporting rather than individual or collective "on-site"

verification. MARPOL provides that the parties should cooperate in the detection of

violations and in the enforcement of the agreement with respect to environmental

monitoring, reporting, and accumulation of evidence (Article 61). MARPOL also

establishes a port state enforcement regime whereby the port state may inspect on its own

volition, or where the flag state has concurred after appropriate notification (Article 6, (4)

and (5)) Finally, MARPOL sets out detailed requirements for the reporting of discharges

of harmful substances, including reporting requirements for a party's maritime inspection

authorities (Article 8 and Protocol 1). The U.S. Coast Guard, for example, conducts

routine surveillance operations and reports discharges through the U.S. State Department

to flag states. This is consistent with the obligations placed on all parties to furnish flag

states information on violations committed by their vessels (Article 6(3)).

34

The Secretariat of the London Dumping Convention provides for consultation with the

parties by providing recommendations (Article XIV, 3) and has, in the past, brought a

number of implementation issues to the parties' attention. The LDC also requires parties

not only to punish violators of the Convention (Article VII), but also to cooperate in

developing procedures for the reporting of vessels which are observed dumping in

violation of the Agreement (Article VII, 3). (Procedures have been proposed but never

adopted.) Regarding radioactive waste disposal at sea, in 1977 the members of the

OECD set up within the NEA a multilateral consultation and surveillance mechanism to

promote the objectives of the LDC. It sets out detailed notification, assessment reporting

and inspection procedures. It is consistent with the IAEA' s revised recommendations on

the disposal of low-level radioactive waste under the LDC, and calls for international

observation of the loading and disposal of such waste to ensure compliance with the

Convention.

The Montreal Protocol contains an article on non-compliance (Article 8), which requires

parties at their first meeting to consider and approve procedures and institutional

mechanisms for establishing non-compliance and the treatment of parties in non­

compliance. (This article was the result of the inability of the negotiators to agree on

such procedures during the conclusion of the Protocol.) To resolve the issue, the parties

set up a working group which has recommended the establishment of an "Implementation

Committee" which will report to the meeting of parties with recommendations.

The Basel Convention contains a specific article on verification which provides that a

party suspecting a breach informs the Secretariat and the offending party. The

Secretariat, in tum, will inform other parties. This provision, while general, may assist in

detecting illegal traffic, a major preoccupation of many ofthe convention's negotiators.

Annex III (Waste Disposal and Management) and Annex IV (Prevention of Marine

Pollution) of the Madrid Protocol, aim at controlling the levels of pollution on Antarctica

and in Southern Ocean. Art. 13 dealing with 'Compliance with the Protocol' provides for

the Contracting Parties to adhere to these provisions. It is worth noting that Annex IV is

based on MARPOL (1972/78).

35

(d) Dispute Settlement

Ultimately, in cases where states have not been able to resolve questions relating to

compiiance, they may have recourse to some form of third party dispute resolution

process. As discussed, this can range from some form of consultation, to mediation, or

even formal adjudication. For the most part, dispute settlement mechanisms are fairly

general in many international environmental agreements. Some simply reiterate Article

3 3 of the UN Charter which calls upon parties to resolve their disputes through peaceful

means including, inter alia, negotiation, conciliation, or arbitration.

There is no mandated procedure and a party is free to decline a third party settlement (for

example, as mentioned in Article 13 ofthe LRTAP Convention). On the other hand, the

1969 International Convention Relating to Intervention on the High Seas in Cases of Oil

Pollution Casualties (Article VIII), and its 1973 Protocol Relating to Intervention on the

High Seas in Cases of Marine Pollution by Substances other than Oil, provide for

consultation procedures and arbitration. MARPOL provides for conciliation and binding

dispute settlement mechanisms (Article XI); in 1978, the parties adopted amendments to

the convention providing for compulsory and binding arbitration. (These amendments

have not, however, entered into force, and may never enter into force.)

The Vienna Convention and its Montreal Protocol employ a conciliation procedure and

an "opt in" procedure, whereby states must affirmatively accept compulsory arbitration or

referral to the International Court of Justice. UNEP Regional Seas agreements generally

have non-compulsory dispute settlement procedures with the potential for referral to

arbitral procedures if the parties agree. The Basel Convention (Article 20) contains an

"opt in" procedure like the Vienna Ozone Layer Convention.

In the Madrid Protocol, Article. 18 provides for consultation among disputing parties, and

resolving the dispute by negotiation, inquiry, mediation, conciliation, arbitration, judicial

settlement or other means to which the parties agree. Article 19 provides for two choices

of Dispute Settlement procedures, i.e. the International Court of Justice and the Arbitral

Tribuna!. Further, Article 20 (2) states that the ICJ or the Arbitral Tribunal under the

Protocol, are not conferred with the competence to decide or rule upon any matter within

the scope of Article IV (Relationship with other components ofthe ATS).

36

In conclusion, in the field of international environmental agreements, dispute resolution

mechanisms are largely employed on a state-to-state basis rather than as part of an

institutional process. It is also worth pointing out that, for the most part, the dispute

settlement mechanisms contained in these agreements are rarely activated and more effort

goes into their negotiation than their use.

l\10NITORING AND VERIFIABILITY OF ENVIRONMENTAL REGIMES

Informal and formal international arrangements-loosely termed "regimes," defined here

as systems of rule or government that have widespread influence-- are for the collective

management of such trans-boundary issues. Regimes are pervasive; their number and

extent have grown markedly in the 20th century, ~specially since the Second World War.

The conditions under which regimes are formed and the factors that contribute to their

success include distribution of power among states, the nature ofthe issue, its linkages to

other issues, the roles and functions of international organizations, the processes of

bargaining and rule-making, and the influence of domestic politics.

It is at this stage very essential to understand and define terms:

•

•

•

•

•

Monitoring is the process of acquiring the information used to facilitate decision­

making and implementation ofthe agreement.

Compliance is the adherence to some formal or informal commitment .

Ver?fication is the process of determining whether or not a party is in compliance .

Enforcement is the suite of sanctions and incentives to entice compliance .

("Verification regime" has been used to mean all of the above, especially in the

arms control literature; we avoid it because of its imprecision.)

Implementation is the process of putting in place laws, activities, and institutions

to meet obligations of an agreement.

"Monitoring" here means the process of acquiring information used to facilitate decision­

making and implementation of an agreement. Three types of information are collected:

finite about offending behaviours that lead to the problem, for example the catching of

37

fish; second, about the problem itself, for example trends in the stocks of fish; third.

about responses to the problem, for example to what degree particular governments

enforce fishing quotas. These different types of monitoring are used to different degrees

in each of the cases. This is effectively illustrated by discussing five dimensions of the

process of monitoring by using the three by five matrix as shown in Figure 1.

·~::

.3 r: 0 ~

Dimensions of Monitoring

Direct Reliance on

Measurability & Indirect National Indicators ReJJOrting

Behaviour that causes the problem

The problem itself

Policy response and their effectiveness

Figure I Types of dimensions of monitoring

Intrusiveness Organisation

I

Source: J. H. Ausubel & D. G. Victor: Verification of International Environmental Agreements. Annual

Review of Energy and Environmenr. 1992. Vol. 17. (see http://phe.rockefeller/edu/verification!fl s.jpg)

The offending behaviour that can be measured affects the agreements that are negotiated

am! the extent lo which lhey are implemented. The whaling and fisheries agreements

have logically attempted to set quotas of allowable annual catch because such data were

easily collected and comparison was made with some standard relatively straightforward.

In the oil pollution case, there is a contrast between operational and technological

standards where technological standards are easy to monitor (for example by

demonstrating the presence of a particular device onboard the ship); but operational

requirements are difficult to monitor because they require observing the ship in diverse

settings and over extended periods. 48

48 R. M. Mgonigle & M. W. Zacher, Pollution, Politics and International Law. Tankers at Sea (BerkeleY: University of California, 1979), pp 76ff. ·

38

i I

J

Regarding monitoring of the problem itself, lack of measurability is pervasive. Statistics

on fish populations are notoriously inaccurate; the same is true for whales, though to a

lesser degree because they live on the surface and are large. Improving the capacity to

measure the relevant environmental parameters are twofold: to fill gaps in the scientific

research programs necessary for conducting the measurements; and to adopt uniform

monitoring practices so that data and results are comparable.

Measurability of responses to these problems is not easy, though most international

environmental agreements do not formally require monitoring. The parties to a particular

agreement are required to self-report on the process of implementation. The issue does

arise at the periodic meetings of the parties, usually in the context of debates over

compliance. The question is rarely one of monitoring whether or not the agreement has

been implemented but, rather, whether implementation has been sufficient.

The assessment of the effectiveness of international environmental agreements requires

study as to how compliance is verified. International agreements that are verifiable are

more likely to succeed in both negotiation and implementation. The process of

verification builds confidence in existing formal and informal agreements, thus

improving the prospects for future cooperation and compliance. Verification activities

produce information that can provide the technical basis for future agreements and shared

understanding. Such information also can provide the basis for sanctions, depending upon

timely, legitimate, and accurate information. Information from verification activities

helps to assess how effectively a regime has met its goals and whether changes in the

regime are needed to improve effectiveness. By increasing transparency--the extent to

which behaviour and violations are visible to others--verification can help build norms

and contribute to regime effectiveness.

First, Verification49 can become a salient dimension of international cooperation, so much

that agreements that cannot be verified adequately are politically infeasible. Clearly much

rests on the detlnition of ''adequate." Second, verification can be divisive. How nations

perceive the concept of verification is based on what and how much they stand to gain or

lose. No two nations, therefore, will agree on the degree or level to be prescribed for

effective monitoring or verification. This is clearly evident in most cases of

49 J.H. Ausbel & D.G. Victor, "Verification of International Environmental Agreements", Annual Review of Energy and Environment, vol. 17, (1992), p. 28

39

environmental treaties where fixing of quotas, say, for greenhouse emission limits or

fishing for particular species like whales, have led to factions between North and South

blocs, or between developed and developing nations. Third, verification is not an end in

itself; rather, it should be seen as contributing to one's overall goals, i.e. protecting the

environment from further damage. Fourth, the suite of technological and organizational

arrangements may have other purposes, for example, drilling in Antarctica by the

Russians and others for scientific research is perceived by many nations as explorations

for hydrocarbons indicating a presence of minerals. But definitely, technological change

and scientific research programs can enhance the verification process.

The practice of monitoring and verification is conducted through many channels, not just

the states and organizations that are formally associated with an international agreement.

For example, it is now commonplace to assert an important role for NGOs in

implementing international agreements by collecting and publishing information related

to compliance and by pressuring states to control pollution. In CITES, IUCN has partially

filled this function; in the whaling and fishery agreement the partially nongovernmental

TCES has contributed extensive amount of information. At the Antarctic Treatv

Consultative Meetings, ASOC (Antarctic and Southern Ocean Coalition, comprising of

leading environmental NGOs) plays a crucial role in bringing up issues of importance for

debates and critical assessments. By virtue of its status as 'Observer' for the past 10

years, ASOC has successfully monitored various environmental provisions related to

Antarctica and Southern Oceans (i.e. 60° South) from ratification & implementation of

the protocol to fishing & controlled tourism, both in international forums and at domestic

policy levels in different countries.

MANAGEMENT AND PRESERVATION OF NATURAL RESOURCES

Management characterizes the main objective of many fisheries agreements, like the

North Sea herring. Preservation characterizes the protection of endangered species and

the Antarctic. The whaling agreement began as a management issue and has gradually

shifted to preservation.

40

Whaling

From the end of the 19th century through the middle 1960s the annual harvest of whales

grew dramatically, peaking in the 1930s and again in the 1950s; consequently, the

population of blue whales, for example, dropped from a quarter million to the tens of

thousands. In the 1940s, over-whaling in traditional areas of the North Atlantic and

Pacific, coupled with technological improvements, pushed the industry from the North

Atlantic and Pacific to the Antarctic, which rapidly became the largest source of whales.

Over-whaling has long been evident, but the several pre-World War II attempts to

manage the population failed. 50 Using the many existing and previous agreements to

manage fish and seal populations as a guide, in 1946 the whaling nations established an

International Whaling Commission (IWC), as a negotiating forum for management of

whale stocks. The IWC meets annually to discuss the state of stocks, to set quotas and

other regulations, and to review how well the past season's quotas and regulations were

obeyed Its Scientific Committee has warned, fairly accurately, of over whaling

problems; through the middle 1960s those warnings were only partially heeded in the

quota and regulation-setting process (i.e. the quotas were set too high) 5 1

The original rationale for the IWC was to maximize the economic benefit of whaling by

reducing overfishing and, eventually, increasing total catch. In the early 1970s that rationale

changed towards preservation of whales; at the 1972 U.N. Conference on the Human

Environment (Stockholm), the preservationist ethic was reflected, for example. in a "whale

parade'· and a call, led by the US delegation, for a 10-year moratorium on whaling.

Domestic pressure in many European nations and the United States to stop whaling was also

strong. From that time, annual meetings reflect the shift away from economic management

towards preservation. There were also changes in membership as non-whaling nations

joined the IWC in the late 1970s and early 1980s to form a voting bloc. With this new

membership the IWC approved a moratorium, beginning in 1986, that continues to the

50 See P.W. Birnie, International Regulation of Whaling, Oceana Publications, Dobbs Ferry, (New York, 1985). p. 947. '

1 J. L. McHugh, "The role and history of the International Whaling Commission" in W. E. Scherill, (ed.), The Whale Problem, (Cambridge: Harvard Univ. Press, 1974), pp. 305-35.

41

present. 52 Some whaling nations (Japan, Norway, and the Soviet Union) registered

objections to the ban, while others (e.g. Iceland) shifted to "scientific" whaling; through

both these mechanisms, some whaling continues, and IWC has no formal authority to

prevent such whaling. Through public opinion, NGOs continue pressure to stop all forms of

whaling; some countries have assisted these efforts with threats of retaliation against

whaling nations. 53

Overall, compliance with IWC quotas seems to have been high. 54 The IWC meetings

regularly address enforcement and compliance; national reports indicate that the number

of infractions was perhaps one to two percent of the total catch. Not all nations submitted

reporls, and there have been numerous third-party reports and indirect e\·idence (e.g.

anomalously low populations of certain whales) of non-compliance, including a dozen

notable cases. In 1955 Norway first proposed an International Observer System (lOS) of

independent observers to be stationed on whaling ships and factories to verify

compliance. It was not until 1972 that lOS was put into action, and since then compliance

has probably gone up. However, there are indications that compliance was already rising

as the whaling fleets of persistent violators were purchased by the major whaling states.

Some claim that because the moratorium fails to achieve the IWC's original goal of

commercial management of whaling, IWC effectiveness is low. 55 Others suggest that

because whaling has declined markedly in the past two decades, in part because of IWC

decisions, the whaling regime has been effective56 Future effectiveness is unclear

because Iceland, a major potential whaling nation, has announced it will withdraw from

the IWC

s: S. Andresen, "Science and Politics in the International Management of Whales", Marine Policy 13, (1989), pp. 109-111. 53 P.W. Birnie, n. 50, p. 948. 54 As implied above, through the 1960s high levels of compliance reflected that quotas were set high and thus states had to make little or no effort to remain in compliance with their quotas. 55 See J.Wettestad and S. Andresen, The Effectiveness of International Resource Cooperation, Some Preliminary Findings,, (Lysaker, Norway: FridtjofNansens lust, 1991). 56 0. R Young, "The effectiveness of International Institutions, Hard cases and critical variables", in l N. Rosenau, E. -0. Czempiel, (ed.), Governance without Government. Order and Change in World Politics, (New York: Cambridge Univ. Press, 1992).

42

Antarctic Treaty System

Systematic exploration and territorial claims on Antarctica extend back to the turn of the

century. After World War II those claims expanded and threatened to militarise the

continent. Antarctic research figured prominently m the 1957/58 International

Geophysical Year (IGY), the highly successful 18-month internationally coordinated

scientific probing of the Earth. The 1959 Antarctic Treaty, negotiated with US and USSR

leadership, calls for the continued absence of military activities, the suspension of all

territorial claims, and the coordination of "peaceful" scientific research on the continent

Membership in the treaty has remained small, a few dozen countries, because a

prerequisite is serious interest in Antarctic research, typically demonstrated by

maintenance of a year-round scientific base. In addition to the 1959 treaty, the parties

have negotiated agreements to control seals ( 1972) and Antarctic marine living resources

(1980), especiaily the rich fisher iessc The suite of treaties is known as the Antarctic

Treaty System (ATS). A 30th anniversary review of the ATS produced a ban, signed in

1991, on mineral exploration for at least 50 years.

Parties to the treaty meet every two years to make decisions and interpret the provisions

of the treaty; thus the ATS evolves over time58 Because the Antarctic Treaty manages

both the continent and its surrounding oceans, it overlaps with efforts in other areas, for

example the Law of the ~ea, the whaling regime, and agreements controlling transport

and dumping in the ocean (e.g. the 1989 Basel Convention on the Control of Tran

boundary Movements of Hazardous Wastes and Their Disposal which, among other

controls, prohibits disposal of hazardous waste south of 60 ° S latitude).

The verification provisions of the ATS are unique in allowing anytime/anywhere

inspection, including over flight, by any of the parties, and requiring advance notice of all

expeditions. ln practice, only some countries like Norway, the UK and the United States

regularly conducted such inspections. The Scientific Committee for Antarctic Research

57 J. K. McElroy, "Antarctic Fisheries. History and Prospects", Marine Policy 8, (1984), pp. 239-58; I. E. Bardach, "Fish Far Away", Comments on the Antarctic fisheries in E. M. Borgese, N. Ginsburg, (ed.), Ocean Yearbook 6, (Chicago: Univ. Chicago Press, 1986), pp. 38-54. 58 M. J. Peterson, Managing the Frozen South. The Creation and Evolution of the Antarctic Treaty Svstem, (California: Berkeley, University, 1988), p.

43

(SCAR) of the International Council of Scientific Unions (ICSU) helps integrate

scientific research programs, but final authority for essentially all Antarctic research rests

with national governments.

Human Impact

Humans are now in competition with other life forms in the Antarctic for the 2% of the

land which is ice-free. More than 50 permanent bases have now been established in the

region, home to 4000 scientists and support staff during the summer months. In the past,

human settlement has caused environmental pollution and harm to local wildlife.

Fallowing the 1991 Madrid Protocol, all countries are trying to minimise their impact on

the ecosystem. Another human factor is the slow but steady growth in tourism over the

past 20 years. Guidelines are gradually being developed so tourists can visit the Antarctic

without disturbing fragile habitats 59

Endangered Species

As with many issues of environmental preservation, extinction of species became an

important issue with the 1960s environmental movement Domestically many countries

passed laws to protect species, primarily popular land mammals, and their habitats. The

I 972 Stockholm conference reinforced these concerns at the international le\·ei The main

international legal instrument to control extinctions has been the 1973 Convention on

International Trade in Endangered Species (CITES), negotiated with US leadership and

pressure from environmental groups 60

Although the CITES goal is to preserve species, the mechanism is limited to controlling

international trade in those species. CITES distinguishes among species according to their

risk of extinction by listing species in two appendices: the first, of endangered species,

for which commercial trade is essentially banned; and the second, of threatened species,

for which commercial trade is closely controlled. Because decisions on listing are made

by majority voting of the parties, there is also a third appendix in which a country ran

59 http://www.samuscum.sa.gov.au/mawson/coop.htm 60 Sec D. S. Favre, International Trade in Endangered Species, (Dordrecht: Martinus Nijhoff. 1989).

44

unilaterally place a species to notify the international community that the country

considers that species to be in need of international controls. The competence with which

the trade restrictions are implemented varies widely by country and species.

The International Union for the Conservation of Nature (IUCN), a quasi-governmental

organization, has adopted endangered species as one of its issues and, since the 1960s,

has been the leading international authority on the status of various species, publicizing

its findings through its annual "red book." In an unusual arrangement, IUCN also

provides secretariat services to CITES on contract from UNEP; in that capacity IUCN

performs and conducts a limited amount of research, data collection, and technical

assistance related to formulating and implementing CITES regulations. 61

Losses of biodiversity surely continue, though the magnitude and distribution of species

lost is uncertain. The most important levers on species decline are domestic actions to

preserve species and their habitats, which are outside the realm of CITES. Thus. the

regime is unable to stop extinctions directly. Parties to the Convention are required to

send annual reports, including trade records, to the secretariat but assessing compliance

requires some estimate of how many international shipments circumvent the system,

which appears impossible to determine. Both because CITES is implemented poorly in

many countries and because the agreement controls only international trade. its

effectiveuess iu stopping extinctions is probably low. However, for many species and in

many countries, there is evidence of more stringent local regulations than would be the

case if CITES were not in existence. 62

Agreements in context

• Law of the Sea

The 1982 UN Convention on the Law of the Sea, which is not in force. is generally

regarded as reflecting customary international law, with the exception of its deep-seabed

provisions. It contains a number of obligations including the protection of the marine

61 Ibid. 62

L. H. Kosloff, and M. C. Trexler, "The Convention On International Trade In Endangered Species, No Carrot, But Where's The Stick?", Environment Law Reporter, Vol. 17, (1987), p. 10222-36

45

environment. In the simplest terms, the Convention contains a mrx of flag, port and

coastal state enforcement provisions which greatly expand the enforcement authority of

coastal states in the Exclusive Economic Zone (EEZ) beyond the scheme contained in

MARPOL. Generally, coastal states are authorized to enforce international standards in

their EEZ. (These international standards are understood to be those adopted by the

IMO.) With respect to foreign flag vessels, including inspection and actual detention,

these powers are governed by a system of procedural safeguards embodied in Section 7

ofPart XII and ultimately by Part XV's compulsory dispute settlement procedure.

• Antarctic Treaty System

The Antarctica Treaty System compnsmg the 1959 Antarctic Treaty and its

recommendations and subsidiary agreements is an important environmental regime in its

own right. Designed to defuse the issue of claims to sovereignty in the Antarctic and to

preserve it for peaceful purposes, the Antarctic Treaty contains unilateral rights of

inspection (Article VII) to ensure that its peaceful purposes and environmental protection

regime are maintained. Reports of such inspections are an increasingly important topic of

discussion at treaty meetings. It also contains a rather unique provision calling upon the

contracting parties to exert appropriate efforts consistent with the UN Charter to ensure

that no state engages in activities in Antarctica contrary to the terms of the treaty (Article

X).

Under the 1980 Convention for the Conservation of Antarctic Marine Li\·ing Resources.

there is established an ecosystem approach to fishery activities in Antarctic waters~

reporting requirements on harvesting activities (Article XX); a role for the Commission

in monitoring compliance whereby it can draw to the attention of all parties an issue of

implementation by a party (Article X); an obligation to ensure compliance with the

convention including the imposition of sanctions (Article XXI), and a provision calling

for the development of observation and inspection procedures for harvesting activities

(Article XIV).

Finally, there is the 1988 Convention on the Regulation of Antarctic Mineral Resource

Activities (the Antarctic Minerals or Wellington Convention or CRAMRA), which,

46

though not in force, estabiishes a regime to regulate mineral resource exploration and

exploitation in Antarctica, sometime when the moratorium is lifted. The Convention

establishes a variety of institutions that have the responsibility of deciding on whether to

allow mining activities to go forward. There are detailed reporting, monitoring

inspection and enforcement provisions (Articles 37-38, 47 and 52) -with a mix of

institutional and state compliance mechanisms including procedures for suspension and

cancellation of exploitation rights. There are also detailed compulsory and binding

dispute settlement procedures involving state-to-state and institutional mechanisms.

Many enforcement and compliance procedures worked out in the Convention were the

result of compromises between states claiming, and states not recognizing, sovereignty in

Antarctica.

CONCLUSION

Global environmental change has altered the vision of nations by forcing them to realise

that they are locked together in sharing the use of a common global em·ironment and

thereby each is equally responsible for its preservation and management While human

activities have gravely contributed to environmental change it is only in the later part of

the last century that effects have been alarmingly serious and irreversible Even though

many environmental agreements exist as on today, but they somehow lea\'e scope for

manipulation and manoeuvring by nations to fulfil their national interests.

The concept of 'global common' exists more in spirit than in practical application.

Population growth has lead to demand on resource consumption which in tum has lead to

over utilisation of resources. The North-South dialogue which clearly focuses on shifting

of blame to each other has caused more damage than desired But, nonetheless, the mere

existence of the number of environmental agreements demonstrates the role played by

international law in laying the foundation for regime formation to conserve the remaining

threatened living and non-living resources. The Stockholm Conference of 1972 marks the

beginning of 'international environmental law' that gave rise to important legal

developments including the World Heritage Convention, the CITES, the London Ocean

Dumping Convention, and the UNEP Regional Seas Convention. Since then there has

47

been a rapid rise in international legal instruments concerned with the environment,

leading to formulation and development of new means of coordinating negotiations and

implementing related agreements.

The scope and subject matter of international environmental agreements have broadened

considerably in the last 30 years. The significant focus in pre-Stockholm Conference was

essentially on facilitating navigation, guaranteeing fishing rights, and protecting valued

animal species; today there are agreements to control pollution at all levels, conserve

habitat, and protect global common like ozone layer. There has also been a growing

realisation that a shift in diplomatic procedures and negotiating-bargaining tactics IS

essential for effective protection of the environment through international cooperation.

The present day negotiations are ridden with issues like human rights, sustainable

development on one hand and public participation, emergence of economic incentives

and market mechanism on the other hand. Therefore, international environment

instruments have recognised the importance of including all relevant parties to the treaty.

In the coming years, more and more international agreements related to environment will

be concluded. The emerging negotiated agreements are proving to be highly demanding

on nations, entailing productive action for implementation of the conventions/protocols

obligations. The role of non-governmental organisations in the negotiation and

implementation of agreements has grown and is likely to be more crucial in time to come.

It is likely that there will be an increased emphasis on monitoring compliance with the

conventions and on providing means to facilitate implementation and compliance.

If international agreements are to be effective in protecting the environment, they must

focus foremost on pollution prevention and on the sustainable use of renewable

resources. In fact it would be more effective to prevent pollution than to remedy its

effects or to assign liability for damage. Economically it is usually much less costly to

prevent the damage than to clean it up. It could also happen that many of the costs of

pollution will be shifted to other states or to future generations because there is a lack of

power to hold the polluting state accountable for its action. The concept of anticipatory

approach is developing where early warning systems, risk assessments and stronger

48

monitoring provisions are much in use. Principles are emerging that would strengthen

procedural requirements such as notification, consultation, access to information or

environment impact assessment that would have to be fulfilled before states engage in

activities that could significantly harm the environment outside their jurisdiction, a

befitting example is that of Annex I of the Protocol on Environmental Protection to the

Antarctic Treaty of 1991.

As a result of evolution of international law a new basic legal principle can today be

identified: the acceptance in state practice of responsibility for environmental damage.

This means in fact that there is a legal obligation not to degrade the environment63

The last two decades of the 201h century saw the upsurge in global environmental

movement that brought about a fundamental change in the relationship of human society

to the earth. In achieving an effective response to global environmental problems there is

need to develop a spirit of cooperation among nation states to be the custodian of the

earth - its soil, water, wildlife, air and space.

63 Edith Brown Weiss, Enviromnental change and International Law, New Challenges and Dimensions, (Tokyo: United Nations University, 1992), chapter 5 - 'State Responsibility, Liability and Remedial Measures under International Law, New Criteria for Environmental Protection', http://\VW\V.unu.edu/unuprcss/unubooks/uu25ee/uu25ee00.htm

49