Edited by Michael Faure
This volume presents an overview and a selective analysis of multilateral environmental agreements (MEAs). The scope of such agreements encompasses the regulation of different aspects of the protection, conservation, management, use and exploitation of living and natural resources in various areas: from biodiversity to fisheries, marine environment, shared freshwater resources, atmosphere, climate change procedural obligations and rights and human rights, as well as Polar Regions.
In providing an introduction to the multifarious regulation in such various areas of environmental protection, for reasons of length, the present book, although extensive, cannot purport to be exhaustive. Given the extraordinarily wide number of treaties bearing on environmental protection, a selective approach has been followed with a view to providing a sufficiently exemplary overview of international conventional practice in the field, both at the global and regional levels. Such a selection, ranging from older agreements in these areas to more recent ones, also purports to show how, after the first post-war sectorial attempts at introducing international pieces of conventional environmental regulation, and beyond the booming of environmental instruments of the 1990s, recent years have proved a fertile period for the creation of new MEAs. We have, indeed, witnessed an exponential growth of such international instruments and we may say that all areas of environmental protection are now covered.
MEAs have matured into articulated legal regimes made up, not only of different substantive rules of conduct, but also of self-standing institutional frameworks, with a permanent Conference of the Parties (COP), or Meeting of the Parties (MOP), being the supreme organ of a given MEA, assisted by subsidiary organs. The latter are usually vested by the COP, or MOP, with the study of possible refinements and specifications of the substantive rules of the Convention to be eventually adopted in the form of soft-law instruments – such as guidelines, or model rules – or protocols. COPs have the final competence to adopt, reject, or modify the texts proposed by their subsidiary organs, or act autonomously in expanding the MEA in question. For example, the 1972 Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES) has changed substantially through a series of recommendations adopted by the COP. It is in this respect that MEAs are often defined as framework conventions.
The most innovative development concerning the institutional framework of MEAs, as distinct from international conventions generally, is to be found in the establishment of compliance mechanisms. The first such mechanism was introduced under the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer by a decision of the MOP pursuant to Article 8 of the Montreal Protocol.1
Compliance review mechanisms support State Parties through a regime of assistance p. 2in the implementation of and abidance by the obligations stemming from the MEA in question. At the same time, according to circumstances, they may result in less friendly measures, including the suspension of the rights and privileges of a party to an MEA, for example suspending trade relations with a wrongdoing party.
While the effectiveness of MEAs is one of the most debated areas in the scholarly and practical discussion concerning international environmental law, compliance mechanisms represent an important tool for their enhancement. There are of course other means to assist the parties to an MEA in complying with its obligations, such as financial assistance of the kind provided by the Global Environmental Facility or other international and regional financial institutions, as well as particular sectoral funds, such as those established under the Montreal Protocol or the World Heritage Convention. A comparative analysis of the entries contained in the present volume shows that MEAs corroborate the principle of common but differentiated responsibilities as a leading principle underlying implementation with international environmental obligations, as well as the cooperation between States in this particular body of international law, as was enunciated under Principle 7 of the 1992 Rio Declaration on Environment and Development.2 MEAs also exemplify an approach to the legal protection of the environment as a set of obligations protecting the indivisible interests of the community of the parties to any such agreement, or even to the international community of States as a whole. In this respect, MEAs can be said to have contributed to one of the most significant developments of general international law in modern times, adding the protection of solidarity interests to traditionally exclusive synallagmatic relations between States. The Conventions on Biological Diversity and on Climate Change are most exemplary of this approach in referring to biological diversity and climate change as a ‘common concern of human kind’. This clearly indicates that the characteristic obligations stemming from such Conventions are of an erga omnes partes, or just erga omnes, character. Namely, they aim to provide legal protection to the collective and indivisible interests of the States Parties, if not of the international community as a whole. That approach was confirmed with respect to the environmental provisions of the UN Convention on the Law of the Sea (UNCLOS) by the 2011 Advisory Opinion of the International Tribunal for the Law of the Sea, Deep Seabed Disputes Chamber, in emphasising that ‘[t]he Authority shall act “on behalf” of mankind’, and that ‘[e]ach State Party may also be entitled to claim compensation in light of the erga omnes character of the obligations relating to preservation of the environment of the high seas and in the Area’.3 A recent example of such expression of legal protection of a general interest and of the implementation of obligations of an erga omes partes nature is to be found in the 2014 Whaling in p. 3the Antarctic Judgment between Australia and Japan, under the 1956 International Convention on the Regulation of Whaling, in which the ICJ found for Australia, even if it was not a directly harmed State.
Against the above background, each entry in this volume presents an MEA through its historical background and developments, and the main features of its legal framework and obligations, focusing in conclusion on an evaluation of the overall instrument in question, with special regard to its effectiveness.
The present book is divided into nine Parts, corresponding to different categories of MEAs which have been grouped according to their material scope of application, or subject matter. Most Parts are in turn divided into a section on agreements having a global scope of application and sections on agreements with a regional or sub-regional character.
Part 1 is devoted to the MEAs addressing biodiversity directly, or indirectly. Therefore, next to the presentation of the Convention on Biological Diversity of 1992, and those directly focusing on animal protection, this Part also addresses the 1994 UN Convention to Combat Desertification, the Convention for the Protection of the World Cultural and Natural Heritage of 1972, the Ramsar Convention on Wetlands of International Importance, Especially as Waterfowl Habitat of 1971, as well as those on fisheries.
Part 2 addresses marine environmental protection, beginning with an entry on the environmental side of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), and shifting to instruments of a more specific scope, subject-wise or geographically, such as those specific Conventions on the North-East Atlantic, the Baltic Sea, the Mediterranean, the Black Sea, or the Caribbean Region.
Part 3 moves on to fresh water resources, presenting the two mutually reinforcing global Conventions in the field – that is, the 1992 Helsinki UNECE Water Convention and the 1997 New York Convention on the Law of the Non-navigational Uses of International Watercourses 1997 – as well as a number of exemplary river agreements. This Part also contains an entry devoted to the conventional environmental regulation of groundwater, with specific regard to the Guarani Aquifer Agreement of 2010.
Part 4 is devoted to the protection of the atmosphere, focusing on the 1985 Vienna Convention on the Ozone Layer 1985, while Part 5 examines international agreements providing for the regulation of hazardous waste, and Part 6 focuses on climate change.
Part 7 addresses those MEAs that do not aim to regulate a particular element of the environment, but contain important bodies of rules aimed at ensuring environmental protection, such the 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context and the 1998 Aarhus Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters, 1998.
Part 8 on natural resources focuses on the 1994 Energy Charter Treaty 1994, while the volume draws to a close with Part 9 on the Antarctic/Arctic Regions, addressing in the final entry both the 1959 Antarctic Treaty and the 1991 Protocol.
This book aims to provide a reference point for intermediate students and researchers orienting themselves through the maze of international environmental Conventions, adding to the existing tools to offer a better understanding of and promote the legal and policy discussion on environmental protection. We wish to acknowledge the publisher for their assistance.
‘States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command’.
Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area para. 180, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/17_adv_op_010211_en.pdf. See also Gaja (2011).p. 4