Dr Iwona Rummel-Bulska1
The global environment is complex, and those who attempt to formulate international environmental law related to shared natural resources must be specialists in several domains. The laws they negotiate, in particular transboundary agreements, require careful negotiation and skilful diplomacy to find compromise resolutions that satisfy the different political and economic interests of the States sharing natural resources. Often they are able to identify the real solution to the problem at hand, but the hard political and economic facts force adoption of a compromise measure, a half-solution that will be only the first step towards a final solution that may be years away.
When the development of environmental law proceeds slowly, it also slows the achievement of environmental goals. Nevertheless, progress in development of environmental law at national and international levels is considered the most valuable tool in policy implementation. Many governments, especially those from the developing world, continue to request assistance from United Nations agencies and foreign donors in formulating their own regulatory machinery related to environmental laws and policies.
One of the most important features of international environmental law as it develops has been its challenge to the doctrine of consent: the tradition that an agreement between two parties is binding only on them and not on third parties. As the transboundary nature of environmental threats has become clearer, a growing number of agreements have attempted to lay down norms and to offer incentives for other States to sign on, or at least to commit themselves to a similar course of action.
The 1973 Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES) is an example. The parties to CITES may trade with nonparties only if the latter substantially conform to the terms of the convention. Although this seems to undermine the liberalization of trade (under the General Agreement on Tariffs and Trade and the World Trade Organization), it is justified by the realization that the internal activities of one country may have a material effect on others.
A clear paradigm is the fact that although North European countries produced insignificant amounts of sulphur dioxide and nitrogen oxide, they were had the worst acid rain problems in the world due to the activities of other countries in Europe. The modern reality, deriving from the general principles of international law, is that some countries, even in the absence of specific regulations, have an obligation to refrain from causing harm to others. Similar examples were the concerns of some developed countries about ozone depletion due to Asia's use of chlorofluorocarbons and the danger that land in developing countries such as, for instance, Bangladesh and the Maldives, will be swamped by rising sea levels as a result of carbon emissions in the developed part of the world.
The 1972 Stockholm Declaration touched on these challenges to the absolute sovereignty principle when, in Principle 21, it declared:
States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction.
The same principle was later reiterated by Principle 2 of the 1992 Rio Declaration on Environment and Development and Article 3 of the 1992 Convention on Biological Diversity (CBD), which was signed at the Rio Conference.
Also, in the World Charter for Nature of 1992, paragraph 16 called on States and other related institutions ‘to ensure that activities within their jurisdictions or control do not cause damage to the natural systems located within other States or in the areas beyond the limits of national jurisdiction.’ The Charter also called on States and other actors ‘to safeguard and conserve nature in areas beyond national jurisdiction’.
The agreements dealing with transboundary matters and the growing spirit of co-operation they seem to indicate have taken place against the background of issues of absolute national sovereignty, national debt, technology transfer, and financial resources – all of which vary widely between developing and developed countries. In the face of threats to the global environment, it is unfortunate that often the essential motivation of a country remains its self-interest. Governments will generally only negotiate if they believe the problem can be solved no other way. The decision to negotiate is strongly influenced by economic considerations, trade elements, pressure groups, and public opinion, all of which may be influenced by new scientific findings.
After it has been agreed that an environmental treaty is needed, the negotiation process itself presents further difficulties. As new developments in science, technology, or economics become known, views of the negotiators change, creating difficulties in drafting the proposed treaty so that it is both reactive and anticipatory as well as flexible enough to adapt to new developments. This makes it difficult to draft a treaty that will impose binding standards, as shown by the problems in negotiating the treaties on ozone, hazardous waste, climate change, and biodiversity.
During the negotiations, the conflict between economic necessity and ecological responsibility often becomes apparent, as the explanation is heard that ‘important bureaucracies at home favour economic growth’. Public pressure is acknowledged to force governments into collective action for environmental protection and prevention of transboundary pollution, but the level of public concern does not explain policy inconsistencies among nations such as Nordic European and North American countries on sulphur emissions that caused acid rain. Though all these countries have experienced high levels of public pressure on this issue, their policies differed. It is considered that this is the result of whether the country in question is a net importer or exporter of pollution: if a net exporter and strong domestic groups oppose environmental protection regulations, public pressure will not be enough to shape a pro-environment policy.
A further problem, common to the processes of establishing all international law related to transboundary problems, is that the inherent delays mean it may be years before the treaty goes into effect. First the negotiators must agree on a framework; then more time is needed to negotiate protocols on issues covered only in general terms in the framework; and finally there are normally long delays in parliamentary ratification by the parties. Generally, multilateral treaties come into force several years after they have been agreed upon – the average is about five years. Remarkably – and a clear indication of their importance to the contracting parties – with few exceptions the environmental treaties concluded over the past two decades entered into force in less than three years.
An issue that is quite interesting in negotiating transboundary agreements is the role of nongovernmental organizations (NGOs). At first rather limited, NGOs' activities have expanded to gathering technical information, devising policies, and mobilizing public support. NGOs were and should continue to be fully involved in the negotiation process and given the opportunity to express their views. Their participation, however, should be and recently has been governed by procedural rules and their activities should be monitored. NGOs are often important in urging governments to act, but sometimes they are seeking maximum results rather than achievable provisions at a given time. Several NGOs have been active participants in negotiating transboundary environmental treaties.
Industry and business are also playing an increasing role in negotiations, especially where the subject of the treaty touches very closely on their activities.
The most active during the negotiation on transboundary movement of hazardous wastes and chemicals were the Chemical Manufacturers' Association, Conseil Europeen des Federations de l'Industrie Chimique, the International Chamber of Commerce, Imperial Chemical Industries, and DuPont.
NGOs and industry organizations have participated in a number of negotiations of transboundary agreements as observers. However, on some occasions, when negotiations were particularly difficult and tense, the observers were excluded (e.g., negotiations of the 1987 Montreal Protocol on Substances That Deplete the Ozone Layer and the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal).
A number of innovations have been devised to obtain agreement while negotating transboundary environmental issues among otherwise reluctant parties. These include 1) selective incentives, 2) differential obligations, 3) regionalization, and 4) promotion of overachievement by lead countries.
In using selective incentives, additional benefits are offered to a party to the agreement to encourage participation in a programme it would otherwise find unacceptable. These may include access to funding, natural resources, markets, or technology. Examples are the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage, in which parties maintain sites on the World Heritage List and are thus eligible for financial assistance to support those sites; the Montreal Protocol, whose Multilateral Montreal Fund covers the incremental costs incurred by signatory developing countries in adhering to the control measures stipulated; the 1982 United Nations Convention on the Law of the Sea (UNCLOS), guaranteeing access of its parties to shared mineral resources; and CITES, which gives access to world markets for wildlife products in return for observing agreed-upon conservation standards. The Montreal Protocol, the Basel Convention, and the CBD are recent examples of treaties containing provisions for technology transfer in return for participation.
The second approach provides differential obligations for parties to transboundary agreements, acknowledging that treaty obligations must be adjusted to the circumstances of each Party. The Montreal Protocol offers a 10-year grace period for implementation to developing countries with less than 0.3 kilograms per capita consumption of the substances it controls. The European Council's 1988 (and later 2001/80/EC) Directive on the Limitation of Emissions of Certain Pollutants into the Air from Large Combustion Plants and the 1976 Convention for the Protection of the Rhine against Pollution by Chlorides both used the principle of differential obligations. This has also been used in arranging contributions to various trust funds established since the early 1970s to finance joint programmes.2
In the third approach, a regional regime can be established, since countries of one region usually share the same problems.3 In January 1991 the Organization of African Unity adopted the Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement of Hazardous Wastes, which aligned a regional regime with a global regime, the Basel Convention. The Bamako Convention follows the basic principles of the Basel Convention but is more stringent. Significant financial and technical resources are required for its implementation. Non-African industrial States are not bound by the Bamako Convention, yet their co-operation is essential to the effectiveness of the regional agreement. Such co-operation can only be achieved when these States and the African States have become parties to the Basel Convention.
By achieving more than an environmental treaty requires, countries that participate in negotiating transboundary treaties encourage others to reach the treaty's goals. This is the philosophy behind the fourth approach, the promotion of overachievement by lead countries. Some environmental treaties, such as CITES, the Montreal Protocol, and the Geneva Convention and its Helsinki and Sofia Protocols, contain provisions recognizing this approach.
There are a number of devices used in negotiating transboundary environmental agreements to avoid the delays inherent in the traditional treaty process. These include 1) provisional application, 2) ‘soft-law’ options, and 3) delegated law-making and supplemental provisions within the treaty-making amendments or adjustments binding on all signatories not specifically opposing them.
The first device, provisional application, is a procedure recognized by the 1969 Vienna Convention on the Law of Treaties and may be exemplified by the Geneva Convention, whose signatories decided to ‘initiate, as soon as possible and on an interim basis, the provisional implementation of the convention’ and to ‘carry out the obligations arising from the convention to the maximum extent possible pending its entry into force’. This resulted in the establishment of an interim executive body, which held regular annual meetings and created subsidiary working groups well before the Convention took effect in 1983. This was also the case with the Basel Convention of 1989, whose plenipotentiary conference also resolved ‘that until such time as the Convention comes into force, all states refrain from activities which are inconsistent with the objectives and purposes of the convention’. All States were called on to apply the provisions of the Basel Convention as soon as possible.
The second device employed to avoid implementation delays is the use of soft-law options. The term ‘soft law’ is used to distinguish informal agreements (such as codes of conduct, guidelines, and principles) from formal, legally binding agreements. Many such instruments have been formulated in the environmental field, covering shared natural resources, off-shore mining and drilling, the exchange of information on chemicals in international trade, environmentally sound management of hazardous waste, marine pollution from land-based sources, weather modification, and environmental impact assessment, as well as the (nonbinding) forestry principles adopted at the 1992 United Nations Conference on Environment and Development.
The great advantage of such legal instruments is that they do not require ratification and can be put into use immediately; this is, however, offset by their informality and lack of legal force. Softlaw agreements may eventually evolve into treaties. This was the case with the 1987 Cairo Guidelines and Principles for the Environmentally Sound Management of Hazardous Wastes, the basis of the binding Basel Convention, as well as with voluntary Prior Informed Consent procedures, as set out in the UNEP Amended London Guidelines for the Exchange of Information on Chemicals in International Trade, the basis for two binding Conventions: the 1987 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade and the 2001 Stockholm Convention on Persistent Organic Pollutants.
In the case of treaties dealing with areas that are subject to frequent changes in technology and rapid advances in scientific knowledge, a third device, the delegated lawmaking approach, permits an intergovernmental body to revise the treaties without the need for ratification by the parties. An example is the control measures of the Montreal Protocol that lead to adoption of several amendments and adjustments.
As the protection of various components of the environment and transboundary management have moved from the scientific world to that of high politics, governments have taken a more flexible approach to the question of absolute national sovereignty and absolute national integrity. The principle of good neighbourliness in which all countries are real neighbours through the ozone layer, global warming, animal migrations, and transboundary movement of wastes or chemicals has prevailed. Negotiations of transboundary agreements related to environmental law have developed rapidly since the 1970s, with negotiations in the field being complicated by scientific uncertainties. This has led to the flexible, anticipatory nature of environmental agreements and to the use of techniques that will enhance their adoption, ratification, enforcement, and implementation.
In response to United Nations General Assembly Resolution 3129 (XIVIII) of 13 December 1973, a Working Group of legal experts was established by the United Nations Environment Programme (UNEP) and met several times between 1976 and 1978 to develop Principles on Shared Natural Resources.
The Principles were drawn up for the guidance of States with respect to conservation and harmonious utilization of natural resources shared by two or more States. They refer to such conduct of individual States as is considered conducive to the attainment of the said objective in a manner that does not adversely affect the environment. Moreover, the Principles aim to encourage States sharing a natural resource to co-operate in the field of the environment.
Negotiations began in 1976, and legal experts representing their various governments who were meeting under the auspices of UNEP found the negotiations to be as difficult as if they were working out a binding treaty.
When the draft Principles were presented to the UNEP Governing Council, the head of the Brazilian delegation led his delegates from the room in protest sparked by Brazil's conflict over La Plata River, which it shared with Argentina.
Eventually States, through the UNEP Governing Council Decision 6/14 of 19 May 1978, adopted the Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States.4 The Principles, together with the Working Group's Report (LJNEP.IG.12/2) and further Government comments on the draft Principles (UN document A/34/557 and Corr.l), were presented to the UN General Assembly. The General Assembly, by its Resolution 34/186 of 18 December 1979, requested all States:
to use the principles as guidelines and recommendations in the formulation of bilateral or multilateral conventions regarding natural resources shared by two or more States, on the basis of the principle of good faith and in the spirit of good neighbourliness and in such a way as to enhance and not adversely affect development and the interests of all countries, in particular the developing countries.
This succinctly encompasses a number of significant concepts: It reconfirms Principle 21 of the Stockholm Declaration – namely, Principle 3 of the Principles on Shared Natural Resources highlights that nations have the sovereign right to exploit their own resources as well as the responsibility not to injure other States or areas beyond national jurisdiction. It is a reminder that the agreement contained only principles to be used as guidelines and recommendations by its Parties in a spirit of good faith and good neighbourliness. It also put special emphasis on the development and interests of developing countries while assuring that it would not adversely affect the interests of all countries.
These elements are still relevant for negotiations of transboundary environmental agreements. Each State should, as much as possible, avoid adverse environmental effects beyond its jurisdiction in the use of a shared natural resource, especially when such use might affect the use of the resource by a sharing State, threaten the conservation of a shared renewable resource, or endanger the health of another State's populace. This principle should be interpreted as taking into account the practical abilities of sharing States to abide by it.
Principle 6 sets out the requirement that every sharing State notify others in advance of any plans to begin or change its use or conservation of the resource if this will significantly affect other States' environment. Upon request, the State should enter into consultations regarding its plans and provide any additional information requested. If the State has not furnished such advance notice, it must upon request consult with States that may be affected.
In addition, Principle 9 states that States have an urgent duty to inform other States that may be affected by any emergency situation arising from use of a shared natural resource, or from sudden natural events related to the resource, that may cause harmful effects on their environment. Principle 13 requires that domestic environmental policy take into account the potential adverse environmental effects of the use of shared natural resources, whether the effects were in their jurisdiction or outside it. These two Principles constitute a significant erosion of the old rule of absolute sovereignty.
During negotiations on the Principles, an attempt was made to avoid language that might create the impression that it was intended to refer either to a specific legal obligation under international law or to the absence of such obligation.
The language used throughout the Principles did not seek to prejudice whether or to what extent the conduct envisaged in the Principles was already prescribed by existing rules of general international law. Nor did the formulation intend to express an opinion as to whether, to what extent, and in what manner the Principles should be incorporated into the body of general international law, in cases where they do not reflect already existing rules of general international law.
The Principles state that it is necessary for States to co-operate in the field of the environment concerning the conservation and harmonious utilization of natural resources shared by two or more States. Accordingly, it is necessary that consistent with the concept of equitable utilization of shared natural resources, States co-operate with a view to controlling, preventing, reducing, or eliminating adverse environmental effects that may result from the utilization of such resources. Such co-operation is to take place on an equal footing, taking into account the sovereignty, rights, and interests of the States concerned.
In order to ensure effective international co-operation concerning the conservation and harmonious utilization of natural resources shared by two or more States, States sharing such natural resources should endeavour to conclude bilateral or multilateral agreements between or among themselves in order to secure specific regulation of their conduct, applying as necessary the Principles in a legally binding manner, or should endeavour to enter into other arrangements, as appropriate, for this purpose. In entering into such agreements or arrangements, States should consider the establishment of institutional structures, such as joint international commissions, for consultations on environmental problems relating to the protection and use of shared natural resources.
While fully confirming States' sovereign right to exploit their own resources pursuant to their own environmental policies, the Principles also emphasized that it is necessary for each State to avoid to the maximum extent possible, and to reduce to the minimum extent possible, the adverse environmental effects beyond its jurisdiction of the utilization of a shared natural resource so as to protect the environment. It was further stipulated that the principle ‘be interpreted taking into account, where appropriate, the practical capabilities of States sharing the natural resource’.
The Principles further emphasized that States should make environmental assessments before engaging in any activity with respect to a shared natural resource that may create a risk of significantly affecting the environment of another State or States sharing that resource. The expression ‘significantly affect’ was defined as referring to any appreciable effects on a shared natural resource and excludes ‘de minimis’ effects. The Principles refer to well-established principles of good faith and good neighbourliness.
After the adoption of the Principles, the UNEP Secretariat regularly sent out questionnaires on their use and application to all countries, and quite positive progress reports on implementation of the Principles were compiled by the UNEP Secretariat based on the replies.5
Weather modification guidelines, called ‘Provisions’, negotiated under UNEP auspices and adopted by the UNEP Governing Council in 1980 require early notification of any planned practices that might affect other States. The term environmental impact assessment (EIA) appeared for the first time in these guidelines, predating the Governing Council's 1987 Guidelines and Principles on Environmental Impact Assessment.
The Weather Modification Guidelines require that:
States should ensure that an assessment is made of the environmental consequences of prospective weather modification activities under their jurisdiction or control which are likely to have an effect on areas outside their national jurisdiction, and either directly or through the World Meteorological Organization, make the results of such assessments available to all concerned States.
States are also required to notify potentially affected States and enter into ‘timely consultation’ with them.
In 1982, UNEP adopted guidelines on offshore mining and drilling, formally titled Conclusions of the Study of Legal Experts Concerning the Environment Related to Offshore Mining and Drilling within the Limits of National Jurisdiction. These guidelines again followed Principle 21 of the Stockholm Declaration and for the first time provided guidance on how to perform an EIA, as well as defining elements of liability and compensation in cases of environmental damage.
Adoption of these guidelines was a clear attempt to formalize management of offshore exploration and drilling for oil and other minerals so as to minimize pollution and other harmful results and to urge States to adopt laws regulating these activities. They include recommendations for the assessment of environmental effects, advance notice measures, assignment of liability, and payment of compensation for damages. Section E, on ‘consideration of transfrontier environmental impact when authorizing operations; procedure for information and consultation’ refers to Principle 21 of the Stockholm Declaration and stipulates that States within whose jurisdiction operations are carried out should take measures to avoid to the maximum extent possible, and reduce to the minimum level possible, pollution and other adverse effects on the environment beyond the limits of their jurisdiction and provide other States with information in a timely manner when the operations could have significant adverse effects on the environment of other States.
In 1985 the UNEP Governing Council adopted the Montreal Guidelines for the Protection of the Marine Environment against Pollution from Land-Based Sources, which took almost two-and-a-half years to negotiate. Following the pattern of earlier guidelines, they include elements from Principle 21 of the Stockholm Declaration and continue to move away from the notion of absolute sovereignty. The Montreal Guidelines exemplify the use of nonbinding agreements to achieve co-operation in an area ripe for a legally binding global treaty.
The Goals and Principles on Environmental Impact Assessment were adopted by UNEP in 1987. These guidelines codify the processes that, beginning with Principle 21 of the Stockholm Conference, were developed throughout the history of the agreements described above. They were further used in the 1991 Convention on Environmental Impact Assessment in a Transboundary Context, which were elaborated under the auspices of the United Nations Economic Commission for Europe.
Some of the instruments identify the minimal content of an EIA, but few specify procedures or methods. The 1988 Convention on the Regulation of Antarctic Mineral Resource Activities speaks of the assessment of the possible impacts of such activities. As yet, there have been only a few cases in which rules have been made for procedural details or the activities for which an EIA should be carried out have been named; the exceptions are the 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol) and the provisions dealing with EIAs of seabed activities under UNCLOS. The 1987 Action Plan for the Environmentally Sound Management of the Common Zambezi River System also addresses environmental assessment as one of its four elements, recognizing the need for continuing systematic assessment of water management and quality and describing the tasks required, but it does not specify the administrative procedures to be followed.
All the above show a clear move away from the old concept of national sovereignty. But in spite of this, attempts to develop the guidelines into an international treaty have failed. The next step should be global legislation that will protect the environment and will reduce conflicts and enhance peace by making each nation responsible for the damage its activities may inflict on its neighbours.
An example of how nonbinding guidelines and principles can help States deal with a common transboundary problem pending a later binding agreement is the Cairo Guidelines and Principles for the Environmentally Sound Management of Hazardous Wastes, adopted by the UNEP Governing Council in 1987, which became the basis for the Basel Convention. The Cairo Guidelines included four important principles governing the transfer of technology, capacity building, public access to information, and liability and compensation. The guidelines recognized developing countries' need for technical assistance from the industrialized world to ensure the environmentally sound management of hazardous waste, highlighting the need for the public to have access to all information concerning this activity and establishing a requirement for national laws governing liability and compensation for damages in case of accident or mismanagement.
In 1972, the United Nations Conference on the Human Environment requested that the UN, governments, and scientific and international bodies:
develop plans for an International Registry of data on chemicals in the environment based on the environmental behaviour of the most important man-made chemicals, together with their pathways from factory via utilization to ultimate disposal or recirculation.6
This request resulted in the establishment of the International Register of Potentially Toxic Chemicals in 1976, a computerized data bank for the exchange of information on production and consumption of these substances, their use, the treatment of poisoning, waste management, and control of hazards posed by them.
In the late 1970s, Kenya brought to the attention of the UNEP Governing Council the indiscriminate trade in toxic chemicals, particularly the trade carried out in the South by companies from the North. In 1977 the Council urged governments:
to take steps to ensure that potentially harmful chemicals ... which are unacceptable for domestic purposes in the exporting country, are not permitted to be exported without the knowledge and consent of appropriate authorities in the importing country.
In 1978, the Council further urged that such chemicals not be exported until their health and environmental effects had been tested and reported to the recipient countries, and called for adequate monitoring, evaluation, and protections to be instituted by both exporting and importing governments.
The Montevideo Programme, adopted by the Governing Council as its Programme of Action in Environmental Law for 1981–1991, included the preparation of principles or guidelines on the exchange of information relating to the trade in potentially harmful chemicals, particularly in pesticides. An ad hoc working group of experts met in the Netherlands in March 1984 and submitted to the next Governing Council session a Provisional Notification Scheme for Banned and Severely Restricted Chemicals, which the Council adopted, calling for it to go into effect as soon as possible and urging close co-operation with other UN bodies and specialized agencies in further elaboration of the draft guidelines. Among its provisions, the notification scheme called for a country that has acted to ban or severely restrict a chemical to notify other nations' authorities promptly and to provide the appropriate information at the time of the first export following such action.
In 1987 the UNEP Governing Council adopted the London Guidelines for the Exchange of Information on Chemicals in International Trade, which continued to be developed and two years later were adopted as amended. The 1987 guidelines were designed to complement existing instruments of other governments and intergovernmental organizations and of the UN and its specialized agencies, particularly the Food and Agriculture Organization's Code of Conduct on Distribution and Use of Pesticides. The guidelines stated that in using chemicals, nations should abide by Principle 21 of the Stockholm Declaration, and it flagged a potential conflict if the unilateral adoption of environmental regulations were to create obstacles to international trade agreements. They also specified that control requirements be normalized for all producers of the same chemical.
The 1987 guidelines were in negotiation for five years, and during that time the developing countries consistently invoked the principle of prior informed consent (PIC), while the industrialized nations resisted its inclusion in the formal guidelines. The working group of legal experts continued its efforts following adoption, and the principle of PIC was included in the amended London Guidelines, the first time it had been accepted in an agreed text negotiation by governments. It would later appear as part of legally binding treaties, together with the contents of Principle 21 of the Stockholm Declaration, in both the Basel Convention and the CBD.
Environmental problems rarely affect one nation alone, especially when they involve coastal areas and the marine environment. Because regional fishing grounds are normally shared by several nations, each country's pollution and activities can degrade the shared environment and damage the resources of all. Therefore, protecting the coastal environment and the sea's resources depends on regional co-operation.
Historically, international marine agreements regulated navigation and fishing. It has only been recognized relatively recently that the world's oceans should be protected and managed as a shared natural resource. This important change from a user-oriented to a resource-oriented approach has come about only in the last four decades. Most legal regimes adopted after 1970 have included the protection, conservation, and management of the marine and coastal environment and their resources.
In the late 1960s and early 1970s, scientific findings were widely publicized that the Mediterranean was a dying sea, that the Caribbean Sea and the Arab Gulf were heavily polluted, and that the Pacific fishing grounds had been overexploited. Alarmed, governments in these areas co-operated to find durable solutions. With the UNEP acting as catalyst and coordinator, the Regional Seas Programme was launched in the mid-1970s with its basic strategy to deal with the causes, as well as the effects, of coastal environmental damage.
The virtually enclosed waters of the Mediterranean Sea are shared by European, Asian, and African countries. In the early 1970s the Mediterranean Sea was so heavily polluted that many feared it might die. Efforts to save it began with an assessment of its condition, carried out by a team of technicians from all the relevant UN organizations.
The question then became, in the midst of wars and political tensions, to what extent Mediterranean countries would be willing to enter into an environmental agreement related to the management and protection of this vulnerable shared natural resource. This was a time when all the Arab States were at war with Israel, when Turkey and Greece were disputing ownership of Cyprus, when Algeria and Morocco were at odds over the Sahara, and when the Cold War was still shaping international relations. In spite of these difficulties, and in the face of the belief that the Mediterranean was beyond saving, UNEP decided to go forward. Spain offered to host meetings to negotiate regional co-operation in an effort to save the Mediterranean and, surprisingly, almost all of the basin States not only attended the negotiating sessions but in 1975 succeeded in adopting a joint action that would slow and ultimately reverse the threat.
A disagreement during the negotiations arose around the question of where to locate the coordination unit of the plan. Informal consultations and a straw ballot showed that Greece would win and Athens was formally chosen. Negotiations on the Mediterranean Action Plan were marked with some major political difficulties. In most cases difficulties related to matters other than the programme of management and protection of the environment of the Mediterranean Sea. For example, the Turkish delegation regularly submitted letters to the UNEP Secretariat protesting the Greek presence in Cyprus and Syria and, while ratifying the Convention, recorded that its ratification did not constitute recognition of Israel.
During the negotiations of the Convention, the delegates refrained from criticizing the pollution habits of others, in an implied recognition that all were responsible for the pollution of Mediterranean. This was also due to the nature of the negotiations, which were intended to save the Mediterranean rather than to assign blame. However, some political considerations prevailed over efforts to control pollution; delegates of most of the Mediterranean States, particularly the northern Mediterranean, were unwilling to admit an effective Soviet Union presence. For this purpose they defined the Mediterranean as the area between the Straits of Gibraltar and the southern limits of the Dardanelles, thus eliminating the Black Sea and rivers flowing into the Mediterranean and blocking participation of the Black Sea States of Bulgaria and Romania. Other non-littoral States with rivers emptying into the Mediterranean, such as Portugal, Switzerland, and the Sudan, were by this definition also excluded from the agreement. This reduced the effectiveness of the Convention, because it cannot deal with some major pollution sources, including the Gulf of Izmir and the Sea of Marmara.
In 1976, the Barcelona Convention for the Protection of the Mediterranean Sea against Pollution and two protocols, one to prevent pollution of the Mediterranean by dumping from ships and aircraft and the other to achieve co-operation in combating pollution by oil and other harmful substances, were signed. As the programme evolved, the participants were able to enlarge their understanding of the environment's role in development and began to see evidence that both developed and developing nations were prepared to put aside their political differences as they co-operated to protect their shared environment. Soon after the adoption of the 1976 Barcelona Convention, several action plans, conventions, and protocols were adopted.7 Now, through the Regional Seas Programme, some 140 countries are working together to improve the marine environment and make use of their shared natural resources.
Although the formal requirements for achieving each action plan would seem to be enough to occupy its negotiators, difficulties arising outside the agreement negotiations often postpone, delay, or distract the development process. The Kuwait Action Plan process provides an example of the knotty political problems that arise. The seven riparian Arab States and Iran, although agreeing that a convention was necessary to assure the use and ecological health of their shared waters, could not agree on the name of the waters. The Arabs insisted it should be called ‘the Arab Gulf’; the Iranians were adamant that it would go under the UN term, ‘the Persian Gulf’; suggestions for compromises such as ‘Arab/Persian Gulf’ or simply ‘the Gulf’ were rejected by both sides. In order to get on with the negotiations, it was finally agreed to call it ‘the body of water surrounded by Bahrain, Iran, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, and United Arab Emirates’, and, since the meeting was to be held in Kuwait, to name the adopted convention the Kuwait Action Plan Convention.
Negotiations for the Caribbean Action Plan were also complicated by political matters. European countries having territorial claims in the Caribbean attended the meetings, and from time to time the Caribbean States would exclude them and hold their own meetings. However, patience and the common desire to protect the region prevailed, and the Caribbean Action Plan was followed by the negotiation and adoption of the 1983 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (the Cartagena Convention).
The negotiation of regional seas action plans and legally binding regional agreements has yielded useful information for future activities related to negotiations of transboundary environmental agreements. To begin with, when science speaks with authority, governments listen. Scientific reports that identified the cause of the Mediterranean's ills spurred the countries surrounding it to action; subsequent action plans and agreements have been preceded by scientific assessment of the regional sea in question. Governments have also shown themselves to be willing to put aside political differences and address a common threat, but such negotiations succeed only when they share certain features, and there must be strong leadership by at least one of the parties.
Dealing with shared environmental problems has inevitably led to an erosion of the old doctrine of absolute sovereignty, as governments have become willing both to give and to accept instructions as to how to modify environmentally damaging activities.
The difficulties encountered in negotiating the regional seas agreements were matched and sometimes exceeded by those seeking to reach agreement on management of shared freshwater resources (rivers, lakes, and aquifers), including their living aquatic resources. Fresh waster is one of the basic requirements of life, and in theory there is enough of it to meet the needs of all, but in practice it is often a scarce resource.
Some human settlements have grown up where there is ample fresh water, others where there is more water than they need or want but not in the right place or at the right time, still others where there is barely enough water, compelling them to exist in a perpetual state of drought. Some of this imbalance may be traced to changing global weather patterns, but some is due to the modification of water circulation and quality. Development has led to overexploitation of freshwater resources and to channelling and other regulation of river courses, as well as altered land use patterns that have led to changes in vegetation and soil cover that have affected the hydrological cycle.
The near destruction of Lake Erie by industrial pollution, the poisoning of more than 20,000 lakes in Scandinavia and Canada by acid rain, the siltation and oxygen depletion of thousands of lakes in developing countries by imprudent development and sanitation practices – all these merely hint at the extent of the problem.
The joint use of international water courses has always depended on co-operation among the countries along their banks, regulated in some cases by international treaties and organizations. Historically, these treaties dealt with the allocation of water shares, regulation of navigation and fishing, and construction of dams and other public works. As early as 1792 the Provisional Executive Council of the French Republic stated, ‘Streams that flow through the territory of several States do not belong exclusively to these States with respect to the particular portion traversing this territory, but represent the common and inalienable property of all riparian States’. This principle is echoed by the 1814 Treaty of Paris. More recently, agreements have focused on the cleanup of shared waters. The Great Lakes Water Quality Agreements of 1972 and 1978 focused respectively on traditional pollution sources, such as municipal sewers, that were causing severe oxygen depletion and toxic pollutants. Since 1980, countries along the Rhine have undertaken a joint programme for the rehabilitation of its waters and the management of its aquifer.
In other regions the shortage of freshwater resources may result in conflicts among the nations that share them. International tensions during the last decades have centred on the use of shared rivers. The United States and Mexico have clashed over the Colorado River; Iraq, Syria, and Turkey over the Euphrates; India and Pakistan over the Indus; Israel and Jordan over the Jordan River; and Brazil and Argentina over La Plata River. The scope for conflict rises with the growth of populations, and opportunities must be created for mutual co-operation, dialogue, and confidence building among States who must share the natural resource.
The experiences of UNEP in the Regional Seas Programme showed that international concern for environmental issues can overcome political and economic conflicts. The organization was therefore encouraged to enter the complex and problematic area of the management of shared freshwater resources (including their allocation, use, and conservation, as well as their protection against pollution), beginning in 1985 with the Zambezi Action Plan.
Eight countries affect the waters of the Zambezi River. Arising near the extreme northern border of Zambia and Angola, this great river becomes the border between Zambia and Namibia; Zambia and Botswana; and Zambia and Zimbabwe. Fed by tributaries from Tanzania and Malawi, it then flows through Mozambique to the Indian Ocean. In its course, which leads it more than halfway across southern Africa, the Zambezi collects water that more than fulfils the needs of the riparian States. Nevertheless, negotiation of the Zambezi Action Plan and its accompanying agreement met a series of nearly insurmountable difficulties.
At the time the plan was initiated, the Southern African States had established the Southern African Development Co-ordination Conference, now called the Southern African Development Community. The political situation in South Africa had eroded confidence between some of the governments involved, which suspected others of intending to pass some of the Zambezi's water to Southern Africa. The Conference Secretariat was at best lukewarm to UNEP's proposal, and it became evident that to be effective the plan would have to have the support not only of the highest political levels of government but also of the donor community, because the riparian States were all poor.
Visits were arranged in which the Executive Director of UNEP met with the Heads of State in three of the major countries involved: Botswana, Zambia, and Zimbabwe. The concept of regional management of the Zambezi Basin was endorsed by them. With this important endorsement, UNEP approached Finland, Norway, Sweden, and Canada expressing interest. They provided high-level experts who helped UNEP Senior Staff work with the national experts of the riparian States, and by the time the Action Plan had been drawn up the Nordic States had committed themselves to furnish the $10 million that was the estimated cost to conduct the work.
Preparation of the Action Plan began with a diagnostic study of the river basin, including information on river flows, national water needs, development plans, and conservation requirements. Although this took a long time, as a straightforward collection of factual information it was clear and powerfully convincing to the riparian States involved, who agreed that co-operation was necessary.
Negotiations were difficult, mostly for reasons to do with national political interests and the various nations' attitudes towards events in southern Africa. It took from April 1985 to May 1987 to reach an agreement. Negotiations were held in Nairobi, Lusaka, Gaborone, and Harare in which each expert presented technical and scientific evidence of the need for common action by all riparian countries.
Even more difficult were the negotiations held at the ministerial level in Harare in May 1987, which would adopt the Action Plan and its implementing legal agreements. Of the eight riparian States, only six attended; governments lacked confidence in each other, and it was difficult even to establish the drafting and credentials committees. It took more than a full day of the three days allotted to the meeting to agree that five countries would sit on the drafting committee and all six on the credentials committee. The composition of the bureau of the ministerial conference was sensitive, and Zimbabwe, Zambia, and Botswana were chosen to ensure balanced views. During the ministerial meetings, the value of informal consultations once again proved itself. The agreement was signed in Harare on 28 May 1987 by Botswana, Mozambique, Tanzania, Zambia, and Zimbabwe.
It was evident during these meetings that since the late 1970s, when the UNEP Shared Natural Resources Guidelines were being negotiated, attitudes had changed. Instead of refusing to consider international control of shared waters, as Brazil had earlier done regarding the La Plata River, the riparian States of the Zambezi saw clearly that none could manage its part of the water alone and that all must co-operate. The Zambezi countries agreed that ‘in view of the present utilization of the river system it is possible and highly desirable to deal with the water resources and environmental management problems of the river system in a coordinated manner to avoid possible future conflicts’.
The diagnostic study identified, inter alia, the following problems relating to the environmentally sound management of the river basin that should be dealt with through selected activities as part of the Zambezi Action Plan, namely inadequate co-ordination both at national and at river basin level and inadequate information on environmental impacts of water resources and related development projects, e.g., hydropower, irrigation, etc.
The objective of the Zambezi Action Plan was to overcome the problems listed in the study and to promote the development and implementation of environmentally sound water resources management of the whole river system. It was agreed that the activities in the Zambezi river basin should include solid and reliable environmental assessment. Such information would be related to socioeconomic developments that may adversely affect the environment, including the identification of favourable opportunities for river basin development in general, as well as the identification of human activities that could be affected by environmental degradation. The Action Plan provided for the gradual development and operation of a basin-wide unified monitoring system for water and water-related environment and for the development of a river basin planning process.
The success of the Zambezi Basin negotiations led the governments surrounding Lake Chad (Chad, Niger, Nigeria, and Cameroon) to work on the development of a similar plan. The process began in 1988, again with a diagnostic study. At this time the lake had shrunk on one shore by 25 kilometres and on another by 40 kilometres, but the causes were controversial. Unfortunately the objectivity of the study was called into question and it had to be completely redone. This and other factors caused initial enthusiasm for the plan to fade.
While these efforts were under way UNEP stepped into the much more complicated situation of the Nile Basin.9 The early phases of the negotiations were marred by hypersensitivity on the part of some delegates, and it took two full years of concerted effort by both water experts and environmental law specialists for delegates to realize that collective management of the Nile Basin for the benefit of all was the best option. Ultimately, the delegates agreed to develop a diagnostic study and an Action Plan. The same slow progress is reported in achieving a joint Action Plan for the Rio Arauca, shared by Colombia and Venezuela.
Negotiations relating to the management of shared freshwater resources seem to be more difficult than management of regional seas, although it is encouraging that progress has been made towards agreeing to limit application of principles of absolute territorial sovereignty and absolute territorial integrity for the common good.
Major constraints in negotiating transboundary agreements are usually related to lack of co-operation among States sharing natural resources and the lack of mechanisms in the form of shared natural resources agreements that set out terms of co-operation. Failure in undertaking an EIA when activities are likely to affect the environment beyond national jurisdiction and lack of consultation and exchange of information often lead to exploitation of natural resources without regard to the effects on areas beyond national jurisdiction. This can be further aggravated by the lack of notification and consultations on plans for activities that may significantly affect another State, as well as by delays or failure to share information or to notify and consult in good faith and in a spirit of good neighbourliness.
There is no doubt that co-operation (including entering into agreements that articulate the terms of this co-operation), sharing information, notification, and consultations are very important in transboundary management of natural resources, as well as ensuring that activities undertaken in the country do not affect areas beyond national jurisdiction. All this can only be assured by having an impact assessment for major projects in shared, transboundary natural resources. The same applies to designing corridors where there is a cross-border national park used by migratory species in range States or where there is a natural resource that requires joint management of a river, lake basin, wetland, or catchment area cutting across two or more countries.
1 Chief Lawyer and UNEP Legal Counsel at the Division of Environmental Law and Conventions, United Nations Environment Programme.
2 For example, those under CITES, the 1979 Convention on Long-range Transboundary Air Pollution (Geneva Convention), the 1985 Convention for the Protection of the Ozone Layer (Vienna Convention) and its Montreal Protocol, and the Basel Convention.
3 These include the 1974 Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention), the 1974 Convention for the Prevention of Marine Pollution from Land-Based Sources (Paris Convention), the United Nations Environment Programme (UNEP) Regional Seas Agreements, and treaties for the management of shared freshwater resources such as the Zambezi River and Lake Chad Basins.
4 For further details, see www.unep.org/Law/PDF/UNEPEnvironmental-Law-Guidelines-and-Principles.pdf
5 The compiled results were submitted to the General Assembly through the UNEP Governing Council in 1981 (UNEP/GC.9/5/Add.2) and in 1985 (UNEP/GC.13/9/Add.1).
6 1972 Stockholm Declaration, A. Pollution Generally Recommendation 74(e).
7 For an update on the environmental instruments governing the Mediterranean, see www.unep.org/regionalseas/Programmes/UNEP_Administered_Programmes/Mediterranean_Region/default2.asp
8 See www.unep.org/regionalseas for information about the Regional Seas and Partner Programmes.
9 See Nile Basin Initiative, Nile Transboundary Environmental Action Project (part of the Shared Vision Program), at < previous section < index > next section >
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