Session 4: Lecture Notes on Role of International Organizations in the Emergence of

Environmental Law

Dr. Luther Rangreji Legal Officer, Ministry of External Affairs

I. Background

In the earlier session we saw the growth of international conferences

and the development of IEL. Today with more than 3000 multilateral

environmental agreements (MEAs), international organizations have come

to play a very important role and are often considered to be a link between

various States. So much so that there is an institutional proliferation and

fragmentation of international institutions within and outside the UN system

with parallel or complimentary or conflicting mandates.

IEIs have grown at a steady pace within and outside the United

Nations. Many of these have been established as specialized agencies of the

UN, functional and regional commissions, as well as programmes.

IEIs are vested with legal personality and are created on the basis of a

constituent instrument. Such instruments can exist as an international treaty

convention, or the constitution or founding charter of international

organizations.

To give examples these IEIs or organizations form a complex web and

link themselves with the UN with different cooperative arrangements.

• Functional UN Specialized Agencies which are international

organizations established by Treaty based on the agreements they

draw with the ECOSOC as per Article 63 of the UN Charter.

Examples include the World Bank, the International Maritime

Organization (IMO), the Food and Agricultural Organization (FAO),

the United Nations Industrial Development Organization (UNIDO),

International Civil Aviation Organization (ICAO) etc.

• UN General Assembly bodies established pursuant to Article 22 of the

Charter of the UN such as United Nations Environment Programme

(UNEP), and the Commission on Sustainable Development (CSD)

• Institutions based on the cooperative arrangements between other

international institutions which include the Global Environment

Facility (GEF), the Inter-Organization Programme for the Sound

Management of Chemicals (IOMC) and the Inter-governmental Panel

on Climate Change (IPCC).

• Treaty based institutions such as Conference of Parties (COPs) and

Meetings of Parties (MOPs) and the Secretariats of the multilateral

environmental agreements and other subsidiary bodies

It may be noted that the General Assembly, the ECOSOC and the

Commission of Sustainable Development play an important role as

coordinators.

In view of the above, an easier classification of these organizations can be

undertaken on the basis of their functional roles and mandates. Here I very

much agree with the classification provided in your notes namely:

(i) Functional international organizations;

(ii) Specialized environmental institutions;

(iii) Treaty bodies or institutional structures established by sectoral

regimes.

(iv) Multilateral financial institutions

(i) Functional international organizations

As stated earlier the post-Stockholm scenario saw witnessed a number

of international organizations having varied areas of functioning and

specialization being asked to green their mandates. To name a few these may

include: the International Labour Organization (ILO), Food and Agricultural

Organization (FAO), International Civil Aviation Organization (ICAO),

United Nations Educational, Scientific and Cultural Organization

(UNESCO), the World Health Organization (WHO), the International

Atomic Energy Agency (IAEA) and the World Meteorological Organization

(WMO). What this really meant was to draw up suitable linkages between

various organizations for protection of the ‘international environment’ as

such. Something similar is happening today after the Bali Summit where

nearly all departments of the UN as well as governmental departments are

questioning a need to refashion ‘environmental negotiations’ based on public

goods/trade based focus and understanding. While many organizations were

and still continue to work based on their constituent instrument/ constitution,

other had to amend the constitutions to bring them in line with the need for

international protection and preservation of the environment.

For example: the ILO adopts ‘conventions’ relating to health and

safety workers, the environmental rights provided to indigenous peoples; the

FAO has adopted a number of agreements in the field of forestry and

‘sustainable fisheries management’. An important Convention on Protection

of Plant Genetic Resources was adopted under the FAO. Similarly, the

IAEM which largely regulates the peaceful use of nuclear energy after the

Chernobyl disaster adopted two conventions on: Early Notification of a

Nuclear Accident (1986) and Assistance in the Case of a Nuclear Accident

or Radiological Emergency (1986). The ICAO a competent organization in

the field of international civil aviation, is in the process of negotiating an

agreement on greenhouse gases emitted by aircrafts.

(ii) Specialized Environmental Institutions (SEIs)

UNEP

Many of the above organizations dealt with ‘environment’ problems

in a routine way and for these reasons a need was felt for establishment of

international organizations devoted exclusively to the field of environment.

The UNEP is one such organization, which was established soon after the

1972 UN Conference on Human Environment, held in Stockholm in 1972. It

was established by a resolution of the General Assembly. Rather than taking

this negatively, a more positive way to look at the whole issue is say that

States were unanimous to create such a body.

The UNEP functions within the UN Secretariat and is mainly

responsible for coordinating activities related to the field of environment.

The Council consists of 58 members, who lay the policies of the

organization. Its headquarters/Secretariat is based in Nairobi.

The establishment of the UNEP the growing problems of environment

in different sectors, particularly in the developing world began to attract the

attention of policy makers, environmental lobbies and States. Although,

initially focus was on weather and climate modification and seabed

exploitation, rivers and river basins, enclosed and semi-enclosed seas,

transfrontier pollution and ground waters.

Between 1972-82, the UNEP did not make much progress in helping

States to develop proper environmental legislations due to lack of proper

resources and constraints faced by developing countries to accelerate their

economic development in an environmentally friendly way. Thereafter, it

began to develop a more focused programme on development of

environmental law through its Montevideo Programme on Development of

Environmental Law, 1992. The Programme was devoted to conclusion of

international agreements, development of international principles, guidelines

and standards and provision of international assistance for national

legislation and administration. One of the important contributions of the

UNEP in law making has been the Regional Seas Programme established

under its auspices. The 16 odd Programmes have seen adoption of more

than 35 regional agreements regulating marine pollution. The areas covered

include: land-based marine pollution, pollution by oil, pollution by solids,

pollution by dumping, pollution by radioactive contamination (South

Pacific), pollution by plastics etc.

In the last several years, a large number of international treaties

were concluded under its auspices. To name a few these include: the

Convention on Migratory Species of Wild Animals, 1979, the Vienna

Convention and the Montreal Protocol for the Protection of the Ozone Layer

(1985 and 1987 respectively), the Basel Convention on the Control of

Transboundary Movement of Hazardous Wastes and their Disposal 1989 and

the Convention on Biological Diversity 1992,

Most of the SEIs have definite mandates and institutional structure to

help States to implement their obligations. This is not to deny that SEIs

always derive the powers from their constituent instrument. But it is

common knowledge in intuitional functioning that many SEIs also have

“implied powers” such like the United Nations has. For example, although

the General Assembly that created UNEP’s does not provide an active role

for it, the organization exercised ‘implied powers’ for servicing the adoption

of multilateral instruments under its auspices.

As stated in my Lecture Notes in Session III, the UNEP acts as a

catalyst for action by other groups. The Action Plan of the UNEP has 3 main

arms i. Environmental Assessment that provides for an Earth watch

program. ii. Management of the environment that involves organizing under

its auspices international conferences, especially regional conferences; and

iii. Providing supporting measures that involve a Legal program.

Commission on Sustainable Development

The United Nations Commission on Sustainable Development (CSD)

was established at UNCED. It was established as an environmental

institution devoted to the implementation of Agenda 21. Similar to the

UNEP, the CSD too was adopted through a resolution of the General

Assembly of the UN. It is designated as a ‘functional commission’ of the

ECOSOC. It consists of 53 Members elected for a period of three years.

Role of the Commission been assigned a high level forum task on

sustainable development that includes:

• To review progress at the international, regional and national levels in

the implementation of recommendations and commitments contained

in the final documents of the United Nations Conference on

Environment and Development (UNCED), namely: Agenda 21; and

the Rio Declaration on Environment and Development.

• To elaborate policy guidance and options for future activities to

follow up the Johannesburg Plan of Implementation and achieve

sustainable development

• To promote dialogue and build partnerships for sustainable

development with governments, the international community and the

major groups identified in Agenda 21 as key actors outside the central

government who have a major role to play in the transition towards

sustainable development. These Major Groups include women, youth,

indigenous peoples, non-governmental organizations, local

authorities, workers and trade unions, business and industry, the

scientific community, and farmers

The Johannesburg Plan of Implementation mandated for:

• Renewed emphasis on integration of the three dimensions of

sustainable development in a balanced way

• Focus on reviewing and monitoring progress in the implementation

through a broad exchange of views and experiences, best practice and

lessons learned

• Enhanced linkages between global, regional and national endeavors

• Integrated process that enhances coherence between the

implementation of Agenda 21, initiatives and partnerships

• Greater involvement at the regional level

• Opportunity to look at new challenges and opportunities in the context

of implementation

• Innovative methods of work

• Broader participation of all stakeholders, particularly UN

agencies/international financial institutions and the Major Groups

• Greater consideration to scientific contributions

• Contributions of educators

• Focus on a limited number of issues and

• Negotiations once every two years

The overburdened task of the CSD would become clear if one were to

look at the thematic areas on sustainable development. These among others

include: agriculture, atmosphere, biodiversity, climate change, capacity

building, desertification and drought, energy, finance, forests, health, human

settlement, industry, international law, institutional cooperation, land,

mountains, oceans and seas, poverty, science, technology, toxic wastes etc.

The CSD is also involved in Inter-Agency coordination on matters relating

to water, gender, oceans and energy. To date 14 sessions of the CSD have

been held.

Global Environmental Facility

The GEF IS an independent financial organization, that provides

grants to developing countries for projects that benefit the global

environment and promote sustainable livelihoods in local communities.

During the pilot phase (1991-1994) the task of its implementation task was

assigned to three bodies- the UNDP, UNEP and the World Bank. The GEF

took shape when these agencies agreed by a tripartite agreement in 1991 and

established by a resolution of the board of directors of the World Bank a

grant mechanism to provide financing for projects in four focal areas: ozone

layer depletion, global warming, biodiversity, and international waters.

During this period, about $US800 million, contributed or pledged by 28

countries, including 12 developing countries.

Since 1991, the GEF has provided $6.8 billion in grants and generated over

$24 billion in co financing from other sources to support over 1,900 projects

that produce global environmental benefits in more than 160 developing

countries and countries with economies in transition. Donor countries

contribute all GEF funds.

The Organizational structure of GEF is as follows: GEF Member Countries

include developing and developed countries, as well as those with

economies in transition. Each country has a GEF representative know as a

"Focal Point". The GEF Council is the main governing body of the GEF

comprising 32 members who represent GEF member countries. The GEF

Council must approve all GEF full-size projects. The GEF Assembly is

comprised of all the countries that are members of the GEF. It meets once

every four years to review the policies and operations of the GEF. Only the

Assembly can make any amendments to the GEF Instrument i.e. the

document that established the GEF—.

The Chief Executive Officer of the GEF CEO is Chairperson Monique

Barbut who heads the GEF Secretariat. The Secretariat prepares reports

submitted to the Assembly and Council. The Secretariat also coordinates the

implementation of GEF's projects and programs, as well as the formulation

of policies and operational strategies. The implementing Agencies and

Executing Agencies are responsible for creating project proposals and for

managing GEF projects. The nongovernmental organizations (NGOs)

participate in the GEF activities and assist in the design, execution, and

monitoring of projects. Besides, the Scientific and Technical Advisory Panel

(STAP) provides objective scientific and technical advice to the GEF. The

Monitoring and Evaluation Unit conducts reviews of GEF´s work and

publishes lessons learned so that the GEF´s effectiveness can enhanced.

(iii) Treaty Bodies or sectoral/regime specific institutions

Besides these SEIs there are a number Treaty based institutions such

as Conference of Parties (COPs) and Meetings of Parties (MOPs) and the

Secretariats of the multilateral environmental agreements and other

subsidiary bodies that help implementation of the MEA. The COP functions

as the plenary and supreme decision-making body of the MEA. Although

not a permanent standing body looking into day to day functioning the COP

comprises all States and is responsible for the final decision of any MEA.

Nearly all MEAs on climate change, biological diversity, ozone depletion,

desertification etc. have COPs and the Protocols MOPs which realize the

smooth and effective functioning and implementation of the obligations

agreed upon in MEAs.

Another aspect of regime specific conventions is the need for e

Secretariat that services the day-to-day functioning of the MEA. The UNEP

for example services the administration of five MEAs – CITES, CMS,

Convention for Protection of the Ozone Layer, Basel Convention on

Hazardous Wastes and the CBD.

COPs are generally headed by Executive Secretary who is the CEO of

the Convention Secretariat established under the Convention. All subsidiary

bodies responsible for scientific assistance and implementation of the MEA

work under the overall supervision of the COP and also report to the COP.

Every session of the COP is headed by a President who is generally from the

host State which is hosting the COP.

(iv) Multilateral Financial Institutions

Another important feature is the presence of international or

multilateral financial institutions that contribute to the management and

execution MEAs. These among others include: African Development Bank

(AfDB), Asian Development Bank (ADB), European Bank for

Reconstruction and Development (EBRD), United Nations Food and

Agriculture Organization (FAO), Inter-American Development Bank (IDB),

International Fund for Agricultural Development (IFAD), and United

Nations Industrial Development Organization (UNIDO).

It is of utmost importance that along with States, the private sector

and the lay civil society play a role in the implementation of the MEA. A

classic example of this is the implementation of the Vienna/Montreal regime

governing depletion of the Ozone layer. One of the reasons for the effective

implementation of the regime has been the role played by the private sector

and international financial institutions.

II. Conclusion

The UNEP and the CSD are the two major IEIs we have today. There

has been a growing demand to have a World International Environmental

Organization just like the WTO. No one knows whether such a body can

become a reality because of the different mandates of environment and trade

organizations and their linkages and conflicts.

International environmental law is sectoral and shall remain that way.

Liability and Redressal regimes under MEAs are separately negotiated. The

reality is that no one body whether UN or otherwise can manage so diverse

and difficult areas. The private sector and the civil society have an important

role to play.