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Methods to Expedite Environment Protection: International Ecostandards

Published online by Cambridge University Press:  28 March 2017

Paolo Contini  and
Peter H. Sand
Paolo Contini
Affiliation:
Food and Agriculture Organization of the United Nations (FAO)
Peter H. Sand
Affiliation:
Legislation Branch, Legal Office of FAO
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Extract

Public concern over the environmental crisis has begun to stimulate not only action on the local and national level but also proposals for new international efforts, mobilized especially by current preparations for the United Nations Conference on the Human Environment scheduled to be held at Stockholm in June, 1972.1 Some of these proposals are being presented in the form of draft conventions, such as the Draft Convention on Conservation of the World Heritage, prepared by the International Union for Conservation of Nature and Natural Resources (IUCN),2 and the Draft Convention for the Regulation of Transportation for Ocean Dumping, prepared by a U.N. inter-governmental working group on marine pollution.

Type
Research Article
Information
American Journal of International Law , Volume 66 , Issue 1 , January 1972 , pp. 37 - 59
Copyright
Copyright © American Society of International Law 1972

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References

1 See U.N. General Assembly Res. 2398 (XXIII) of Dec. 3, 1968; 2581 (XXIV) of Dec. 15, 1969; and 2567 (XXV) of Dec. 14, 1970. Cf. the Report of the U.N. Secretary General to the 47th Session of the Economic and Social Council (1969): “Problems of the Human Environment” (E/4667), updated summary in “The Human Environment: New Challenge for the United Nations,” 8 U.N. Monthly Chronicle 35–48 (February, 1971); and the reports of the “Preparatory Committee for the U.N. Conference on the Human Environment” for its three working sessions held in New York in November, 1970, Geneva in February, 1971, and New York in September, 1971 (A/CONF. 48/PC. I, II, III).

2 See the Introductory Note on the World Heritage Foundation, U.N. Doc. A/CONF. 48/IWGC. 1/2 (July, 1971), and the revised IUCN Draft (5) Convention on Conservation of the World Heritage (October, 1971); see also the Draft Convention for the Conservation of Cultural Sites prepared by UNESCO pursuant to its General Assembly Res. 3.412 (1968): Avant-Projet de Convention concernant la protection des monuments, des ensembles et des sites de valeur universelle, UNESCO Doc. SHC/MD/17, Annex II (June, 1971). Other IUCN texts considered by the intergovernmental working group on conservation for possible inclusion in the agenda of the Stockholm Conference are: the Convention on Conservation of Wetlands of International Importance (opened for signature at Teheran on Feb. 3, 1971), the Draft Convention on Export, Import and Transit of Certain Species of Wild Animals and Plants (see note 58 below), and the Draft Convention on Conservation of Certain Islands for Science; see U.N. Docs. A/CONF. 48/IWGC. I, 4–6 (July, 1971), and the Progress Report A/CONF. 48/PC. 11/Add. 3 (September, 1971).

3 U.N. Conference on the Human Environment, Report of the Second Session of the Intergovernmental Working Group on Marine Pollution (Ottawa, November, 1971), U.N. Doc. A/CONF. 48/IWGMP. II/5 (1971); cf. the Draft Convention on the Control of Marine Pollution by Dumping from Ships and Aircraft, adopted at Oslo on Oct. 22, 1971, by a conference of states bordering the Northeast Atlantic. See also the Draft Convention on Environment Cooperation among Nations endorsed in principle by Res. No. 14 of the Belgrade Conference on World Peace Through Law in July, 1971 (Fleischer, Draft Convention on Environment Cooperation among Nations, World Peace Through Law Center, Pamphlet Series No. 16, 1971), and summarized by the author in 7 Texas Int. Law J. 73 (1971).

4 Draft preamble and fundamental principles presented at the 3rd Session of the Preparatory Committee for the U.N. Conference on the Human Environment (September, 1971), on the basis of government replies to a questionnaire circulated in December, 1970. See Report A/CONF. 48/PC. 12 (1971).

5 Mayda, Environment and Resources: From Conservation to Ecomanagement (1967, 2nd ed. forthcoming, 1972).

6 On the shortcomings of lawmaking by international treaty, particularly as compared to domestic legislation, see, e.g., 1 Hudson, International Legislation XIII-LX (1931); Eagleton, International Government 183–201 (3rd ed., 1957); Jenks, The Common Law of Mankind 183–184 (1958).

7 U.N. Institute for Training and Research (UNITAR), Toward Wider Acceptance of U.N. Treaties 34–40 (1971).

8 Ago, “The Final Stage of the Codification of International Law,” I.L.C., 20th Sess. (U.N. Doc. A/CN. 4/205/Rev. 1) (1968); and cf. Ago, “La fase conclusiva dell’opera di codificazione del diritto internazionale,” 44 Archivio Giuridico (6th ser.) 15–58 (1968).

9 Jenks, op. cit. note 6 above, at 190.

10 McNair, , “The Functions and Differing Legal Character of Treaties,” 11 Brit. Yr. Bk. Int. Law 101 (1930)Google Scholar; reprinted in McNair, The Law of Treaties 739–740 (1961).

11 Cf. Schachter, , “Goals and Strategies for Combating International Pollution,” in Columbia University School of Law, Proceedings, Conf. on Int. and Interstate Regulation of Water Pollution 59, at 64 (1970)Google Scholar.

12 A recent UNITAR Study by Serwer, International Environmental Regulation: Means of Achieving Environmental Quality (Provisional Draft, 1971) distinguishes, inter alia, quality standards, discharge standards, and operational standards. The Preparatory Committee for the Stockholm Conference, at its 3rd Session, drew a distinction between “criteria” and three types of “standards”: primary protection standards, derived working levels, and action levels. The report of the inter-governmental working group on the universal declaration (note 4 above), Annex I at 4, also calls for “agreements for the establishment of international standards of environmental quality” (Draft Fundamental Principle No. 12); and cf. the resolution of the International Parliamentary Conference on the Environment (Bonn, June, 1971) for “common environmental standards applicable to the contracting nations.”

13 E.g., see the recommendations for various Federal standards contained in President Nixon’s Message to Congress of Feb. 8, 1971, “Progress for a Better Environment,” H.R. Doc. No. 46, 92nd Cong., 1st Sess. (1971); or the proposed “national emission standards” in Canadian Bill C-224 (Clean Air Act), 28th Pari., 3rd Sess. (1971); and cf. the “environmental quality standards” under Art. 9 of the Japanese Basic Law for Environmental Pollution Control (1967, as amended in 1970); see “Problems of the Human Environment in Japan,” National Report Submitted by the Government of Japan for the U.N. Conference on the Human Environment, Annex I (1971). Generally on a “safe minimum standard” as an objective of conservation policy, see Ciriacy-Wantrup, Resource Conservation: Economics and Policies 251–268 (3rded., 1968).

14 Hines, “Principles of Responsibility in the United States and their Implication for International Organizations,” in Columbia University School of Law, op. cit. note 11 above, at 32.

15 Besides the activities of the U.N. agencies and other international bodies mentioned below (notes 20 to 58), particular reference must be made to the industrial standardization carried out by the non-governmental International Organization for Standardization (ISO) founded in 1946, which supplements the inter-governmental unification of measuring standards by the International Union of Weights and Measures (established by the Paris Convention of May 20, 1875, 1 de Martens, Nouveau Recueil Général des Traités (2nd Series) 663, T.S. 378, as amended on Oct. 6, 1921, 17 L.N.T.S. 46, T.S. 673) and the harmonization of rules on measuring instruments by the International Organization of Legal Metrology (established by the Paris Convention of Oct. 12, 1955, 560 U.N.T.S. 3).

16 Some of the legal implications of standard-setting have been touched upon in several monographs dealing with the “lawmaking” activities of international organizations. See Merle, , “Le pouvoir réglementaire des institutions intemationales,” 4 Annuaire Français de Droit International 341 (1958)CrossRefGoogle Scholar; Schulz, Entwicklungsformen Internationaler Gesetzgebung (1960); Saba, , “L’activité quasi-législative des institutions spécialisées des Nations Unies,” 111 Hague Academy, Recueil des Cours 607 (1964)Google Scholar; Erler, , “International Legislation,” 2 Canadian Yr. Bk. Int. Law 153–163 (1964)CrossRefGoogle Scholar; Skubiszewski, , “Forms of Participation of International Organizations in the Lawmaking Process,” 18 Int. Organization 790–805 (1964)CrossRefGoogle Scholar; idem, Uchwaly Prawotworcze Organizacji Miedzynarodowych (1965); Detter, Law-Making by International Organizations (1965); Skubiszewski, , “Enactment of Law by International Organizations,” 41 Brit. Yr. Bk. Int. Law 198–274 (1968)Google Scholar; Yemin, Legislative Powers in the United Nations and Specialized Agencies (1969); and see notes 20 to 42 below. For recent discussions on a different kind of “standard” in the context of comparative private and commercial law see, e.g., Tunc, , “Standards juridiques et unification du droit,” 22 Revue Internationale de Droit Compare 247 (1970)Google Scholar. And cf., on some jurisprudential implications, Strache, Das Denken in Standards: Zugleich ein Beitrag zur Typologik (1968).

17 Mendelsohn, comments in 1965 Proceedings, American Society Int. Law 159.

18 Adopted on May 23, 1969, 63 A.J.I.L. 875 (1969); see the saving clause in Art. 40 (“unless the treaty otherwise provides”) and the ILC commentary, U.N. General Assembly, 21st Sess., Official Records, Supp. 9 (1966): After stating (at 62) that “the development of international organization and the tremendous increase in multilateral treaty-making have made considerable impact on the process of amending treaties,” the Commission (at 64) explicitly refers to the displacement of the general rule “in some modern treaties,” citing the conventions on rail and road transport (notes 32, 33 below).

19 Particularly in the case of the “recommendations” of the international ocean fisheries commissions (notes 39 to 43 below). See also the transition from the ICAN to the ICAO system noted below (note 24), and the subtle reference to “revision or addition” of annexes in the 1968 African Nature Conservation Convention (note 54 below).

20 Art. 13 of the International Telegraphic Convention, signed on July 22, 1875; 3 de Martens, Nouveau Recueil Général des Traités (2nd Ser.) 614; 7 A.J.I.L. Supp. 276 (1913). See Codding, The International Telecommunication Union: An Experiment in International Co-operation 28 (1952). The method of “technical” adjustments proved so effective that the convention did not require diplomatic revision until 1932, when it was combined with the Radiotelegraphic Convention into the present ITU Convention; see ITU, From Semaphore to Satellite 65, 67 (1965); Yemin, op. cit. note 16 above, 63–84.

21 On the history of international regulations for river navigation on the Rhine and Danube, see Baxter, The Law of International Waterways 126 (1964).

22 Art. 13 of the Treaty Concerning the Formation of a General Postal Union, adopted at Bern on Oct. 9, 1874, 19 Stat. 577, 1 de Martens, Nouveau Recueil Général des Traités (2nd Ser.) 651; see Codding, The Universal Postal Union 107 (1964), and Yemin, op. cit. note 16 above, 85–113.

23 Adopted on Oct. 13, 1919, 11 L.N.T.S. 173, 17 A.J.I.L. Supp. 195 (1923), Art. 34. See Bouvé, , “Regulation of International Air Navigation Under the Paris Convention,” 6 J. Air Law 299 (1935)Google Scholar; and Erler, The Regulatory Functions of ICAN and ICAO: A Comparative Study (McGill University thesis, 1964).

24 Convention on International Civil Aviation, adopted on Dec. 7, 1944, 15 U.N.T.S. 295, T.I.A.S. 1591, Arts. 37, 38, 54(1), 90. See Mankiewicz, , “L’adoption des annexes à la Convention de Chicago par le Conseil de l’O.A.C.I.,” in Beiträge zum Internationalen Luftrecht: Festschrift für Alex Meyer 82 (1954)Google Scholar; Cheng, The Law of International Air Transport 68 (1962); Erler, Rechtsfragen der ICAO 108 (1967); Manin, L’O.A.C.I.: Autorité Mondiale de l’Air 59 (1970). As distinct from the 1919 Paris Convention, which merely provided for simplified modification of Annexes, the 1944 Chicago Convention also provides for simplified adoption of new Technical Annexes.

25 Adopted on April 12, 1933, 161 L.N.T.S. 65, T.S. 901, Art. 61.

26 Adopted on July 22, 1946, 14 U.N.T.S. 185, T.I.A.S. 1808, Art. 21; and WHO, International Health Regulations 1969 (1st ann. ed., 1971). Cf. Jacobini, , “The New International Sanitary Regulations,” 46 A.J.I.L. 727 (1952)Google Scholar; Arbab-Zadeh, Das Verhältnis der Weltgesundheitsorganisation zu den Mitgliedstaaten (Heidelberg University thesis, 1962); Codding, , “Contributions of the World Health Organization and the International Civil Aviation Organization to the Development of International Law,” 1965 Proceedings, American Society Int. Law 147 Google Scholar; Vignes, , “Le règlement sanitaire international: aspects juridiques,” 11 Annuaire Français de Droit International 649 (1965)Google Scholar; Yemin, op. cit. note 16 above, 181–205.

27 Adopted on March 30, 1961, 520 U.N.T.S. 151, Art. 7; see Waddell, , “International Narcotics Control,” 64 A.J.I.L. 310 (1970)Google Scholar. See also the Vienna Convention on Psychotropic Substances, of Feb. 19, 1971, Art. 2; Wassermann, “UN Convention on Drugs,” 5 J. World Trade Law 573 (1971).

28 Adopted on Oct. 11, 1947, 77 U.N.T.S. 143, T.I.A.S. 2052, Arts. 7 (d) , 10 (b), and the definitions given at the 2nd Congress of the WMO, Res. 17/11 of 1955; see Detter, op. cit. note 16 above, at 228–234, and Yemin, op. cit. note 16 above, at 161–180.

29 Convention on Facilitation of International Maritime Traffic, adopted on April 9, 1965, 591 U.N.T.S. 265, Art. 7. See Erler, , “Regulatory Procedures of ICAO as a Model for IMCO,” 10 McGill Law J. 262 (1964)Google Scholar; Alexandrowicz, , “The Convention on Facilitation of International Maritime Traffic and International Technical Regulation: A Comparative Study,” 15 Int. and Comp. Law Q. 621 (1966)Google Scholar. See also the recent comparative study by the Secretariat of IMCO, Procedure for Formulation and Amendment of Technical Conventions (1971), prepared for the 26th Session of the IMCO Council and for the 7th Session of the IMCO Assembly, IMCO Doc. A. VII/12 (August, 1971); and the Note by Canada, Amendment Procedures in the Conventions of Which IMCO is the Depositary, IMCO Doc. A. VII/12/Add. 1 (September, 1971).

30 IATA, Proposed Simplification of Convention-Making Procedures (1970), prepared in connection with the Hague Conference on Unlawful Seizure of Aircraft. An extension of the ICAO standards system to other international air law conventions was first proposed by Saporta, , “L’élaboration du droit international aérien,” 15 Revue Générale de l’Air 413 (1952)Google Scholar.

31 Adopted on Oct. 23, 1924, 77 L.N.T.S. 367, 78 L.N.T.S. 17, Art. 60 (2) in both conventions.

32 International Conventions Concerning the Carriage of Goods by Rail (CIM) and Concerning the Carriage of Passengers and Luggage by Rail (CIV), adopted on Feb. 25, 1961, 423 U.N.T.S. 321, Art. 69 (3–4) of CIM, Art. 68 (3) of CIV. For the formula used in the 1952 conventions, see 163 U.N.T.S. 3, 27. English text of the 1964 Additional Protocols in Cmd. No. 2810 and No. 2811 (T.S. Nos. 66 and 67 of 1965).

33 Adopted on Sept. 19, 1949, 125 U.N.T.S. 22, 94, T.I.A.S. 2487, Art. 31; cf. Vergnaud, Les Transports Routiers Internationaux 63 (1960).

34 Adopted on Sept. 30, 1957, 619 U.N.T.S. 79, Art. 14 (3); see Vergnaud (op. cit. note 33 above) 182; and cf. 641 U.N.T.S. 1.

35 Convention No. 121 adopted on July 8, 1964, 47 ILO Off. Bull. No. 3, Supp. 1 at 31 (1964), Art. 31. And cf. on various attempts to improve ILO methods of standard revision: McMahon, , “The Legislative Techniques of the International Labour Organization,” 41 Brit. Yr. Bk. Int. Law 1, 68 (1968)Google Scholar.

36 See Joint FAO/WHO Food Standards Programme, Codex Alimentarius Commission, Procedural Manual (2nd ed., 1969); Townshend, , “Food Standards: Their Importance, Limitations and Problems, With Special Reference to International Work,” in Herschdoerfer (ed.), Quality Control in the Food Industry 285 (1967)Google Scholar; Dobbert, , “Le Codex Alimentarius: vers une nouvelle méthode de réglementation Internationale,” 15 Annuaire François de Droit International 677 (1969)Google Scholar; Karl, , “Food Laws and Their Innuence on International Trade,” 25 Food Drug Cosm. L. J. 453 (1970)Google Scholar.

37 See Draft International Convention Establishing a Union for Ius Commune in Matters of International Trade, submitted by the French delegation at the 4th Session of UNCITRAL (U.N. Doc. A/CN. 9/60) 3 (1971); cf. David, , “Réflexions sur le rô1e de la Commission des Nations Unies pour le droit commercial international,” 43 Annuario di Diritto Comparato e di Studi Legislativi, Pt. 3 (1969)Google Scholar; and see the report in 8 U.N. Monthly Chronicle 38–39 (May, 1971).

38 International Convention for the Regulation of Whaling, adopted on Dec. 2, 1946, T.I.A.S. 1849, 161 U.N.T.S. 72, Art. 5. Its predecessor, the Convention for the Regulation of Whaling, adopted on Sept. 24, 1931 (155 L.N.T.S. 349, 30 A.J.I.L. Supp. 167 (1936)), did not provide for a separate schedule or amendment procedure. See Johnston, The International Law of Fisheries 401 (1965).

39 Adopted at Santiago on Aug. 18, 1952, 14 Revista Peruana de Derecho Internacional 105 (1954), Art. 4. English text in U.N. Legislative Series, Laws and Regulations on the Regime of the Territorial Sea 724 (1957); see Zenny, Permanent Commission of the Conference on the Use and Conservation of the Marine Resources of the South Pacific, FAO Fisheries Technical Paper No. 77 (1968), 8.

40 Adopted on Jan. 24, 1959, 484 U.N.T.S. 157, Art. 8. See Lauterpacht, , “The Contemporary Practice of the United Kingdom in the Field of International Law: Survey and Comment VIII,” 9 Int. and Comp. Law Q. 276 (1960)Google Scholar.

41 International Convention for the Northwest Atlantic Fisheries, adopted on Feb. 8, 1949, T.I.A.S. 2089, 157 U.N.T.S. 157, Art. 8, as amended by the Protocol of Nov. 29, 1965. See International Commission for the Northwest Atlantic Fisheries, Handbook 35 (1965).

42 Adopted at Rio de Janeiro on May 14, 1966, T.I.A.S. 6767, 6 Int. Legal Materials 293 (1967), Art. 8. See Carroz, and Roche, , “The Proposed International Commission for the Conservation of Atlantic Tunas,” 61 AJ.I.L. 673 (1967)Google Scholar.

43 Adopted at Rome on Oct. 23, 1969, Art. 8. See FAO, Conference of Plenipotentiaries on the Conservation of the Living Resources of the Southeast Atlantic: Final Act 8 (1970); and cf. Carroz, , “La Commission Internationale des pêches pour l’Atlantique Sud-Est,” 9 Canadian Yr. Bk. Int. Law (forthcoming, 1972)Google Scholar.

44 See Wolfrom, L’utilisation à des fins autres que la navigation des fleuves, lacs et canaux internationaux (1964); Dobbert, , “Water Pollution and International River Law,” 35 Year Book of the Hague Academy Alumni (A.A.A.) 60 (1965)Google Scholar; Kiss, and Lambrechts, , “La lutte contre la pollution de l’eau en Europe occidentale,” 15 Annuaire Francais de Droit International 718 (1969)CrossRefGoogle Scholar.

45 Note 21 above. E.g., see the 1971 Annexes A-B, Règlement pour le transport de matières dangereuses sur le Rhin (ADNR); cf. note 68 below.

46 Report of the first meeting (February, 1971) of the expert commission on a Draft European Convention on the Protection of Freshwater Against Pollution. See Council of Europe, Legal Co-operation in Europe No. 4, at 15 (April, 1971). Cf. the WHO International Standards for Drinking-Water (first issued in 1958) and the WHO European Standards for Drinking-Water (first issued in 1961), which have been officially adopted by several governments or used as a basis for national standards; see WHO, The Second Ten Years 256 (1968).

47 See FAO, Agreement on Water Utilization and Conservation in the Lake Chad Basin: Draft and Commentary Prepared For the Lake Chad Basin Commission (AGL: SF/REG/79, 1971), Art. 19, and Technical Annex.

48 New ICAO-Annex 16 (Aircraft Noise), effective Aug. 2, 1971; for background, see ICAO, Proceedings of Special Meeting on Aircraft Noise (1969); and cf. Achtnich, , “Zur Verminderung des Flugzeuglärms: Noise Certifications-Program für Luftfahrzeuge,” 19 Zeitschrift fur Luftrecht und Weltraumrechtsfragen 5 (1970)Google Scholar; Montgomery, , “The Age of the Supersonic Jet Transport: Its Environmental and Legal Impact,” 36 J. Air Law and Commerce 577, at 605 (1970)Google Scholar.

49 Pursuant to Arts. 30–33 of the Treaty Establishing the European Atomic Energy Community, adopted on March 25, 1957, 298 U.N.T.S. 167, 57 AJ.I.L. 955 (1963).

For a comparison of these regulations with other types of international pollution control, see Moore, , “The Control of Marine Pollution and the Protection of Living Resources of the Sea: A Comparative Study of International Controls and National Legislation and Administration,” in: FAO, Proc. Technical Conf. on Marine Pollution and Its Effects on Living Resources and Fishing (FIR:MP/70/R-15) 5 (1970)Google Scholar.

50 Adopted on Nov. 8, 1933, 172 L.N.T.S. 241; 6 Hudson, International Legislation 504 (1937).

51 See De Klemm, , “Conservation et amenagement du milieu: aspects juridiques et institutionnels internationaux,” IUCN Supp. Paper No. 19, at 28–29 (1969)Google Scholar.

52 Cf. De Klemm, ibid, at 36, 44, 47, on various unsuccessful attempts to revise the Paris Convention on the Protection of Birds Useful to Agriculture (adopted on March 19, 1902; 30 de Martens (2nd ed.) 686), the Pan American Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere (adopted on Oct. 12, 1940; T.S. 981, 161 U.N.T.S. 193), and the International Convention on the Protection of Birds (adopted at Paris on Oct. 18, 1950; 638 U.N.T.S. 185).

53 Adopted at Algiers on Sept. 16, 1968.

54 Art. 24(3); see also Art. 24(4) which provides that “such revision or addition shall come into force three months after the approval by the appropriate organ of the Organization of African Unity.”

55 Adopted at Rome on Feb. 27, 1956, 247 U.N.T.S. 400.

56 Adopted at Rome on Dec. 6, 1951, 150 U.N.T.S. 67.

57 Art. 3 (as distinct from Art. 4, no unanimity is required).

58 Art. 23 of the 2nd revised draft circulated by IUCN in March, 1971. An alternative draft is currently being prepared by the Government of Kenya.

59 Non-lawyers serving as technical experts in the various international organizations listed above apparently have not lacked “craftsmanship in international law,” although they are not legal craftsmen as contemplated by Jenks, , “Craftsmanship in International Law,” 50 A.J.I.L. 32 (1956)CrossRefGoogle Scholar.

60 E.g., in ICAO (note 24), WMO (note 28), Road Traffic Convention (note 33); in the International Fisheries Commissions for the Northeast Atlantic (note 40), Northwest Atlantic (note 41) and Southeast Atlantic (note 43); and also in WHO (note 26) and IMCO under the 1965 Convention (note 29), where “important matters” or amendments adopted by a conference are involved.

61 E.g., in the International Whaling Commission (note 38); also in the former ICAN (note 23), now superseded by ICAO; and in the UNCITRAL proposal (note 37). We have omitted here conventions requiring unanimous adoption of standards, which are not fundamentally different from traditional international lawmaking; e.g., see the Convention Concerning Fishing in the Black Sea, adopted on July 7, 1959, 377 U.N.T.S. 203, or the Oslo draft convention (note 3 above), Art. 18.

62 E.g., see the elaborate consultation procedures for preparation of the ICAO technical annexes: Sheffy, , “The Air Navigation Commission of the International Civil Aviation Organization,” 25 J. Air Law and Commerce 281, 428 (1958)Google Scholar.

63 This division is somewhat different from the ones suggested by Skubiszewski and Detter (op. cit. note 16 above), in that it distinguishes according to the binding force of standards rather than according to the procedure (majorities) required for their adoption. Cf. Higgins, Book Review in 41 Brit. Yr. Bk. Int. Law 466,467 (1968).

64 Note 49 above, Art. 38.

65 See notes 88 to 90 below.

66 Note 27 above, Art. 8, and cf. the 1971 Psychotropics Convention (note 27 above), Art. 2.

67 Paris Convention of Aug. 15, 1804 (8 de Martens 261), Art. 103; see Baxter, op. cit. note 21 above, at 98.

68 Convention Relating to the Revision of the 1868 Mannheim Act, adopted on Nov. 20, 1963, 11 European Yearbook 175 (1963), Art. 46. See Walther, , “La révision de la Convention de Mannheim pour la navigation du Rhin,” 11 Annuaire Francois de Droit International 810 (1965)Google Scholar.

69 See particularly on the prewar practice, Baxter (op. cit. note 21 above) 131, citing Van Eysinga, La Commission Centrale Pour la Navigation du Rhin 126 (1935).

70 Under Art. 19 of the ILO Constitution of June 28, 1919, L.N.T.S. 874.

71 Under Art. 16 of the IMCO Convention of March 6, 1948, 289 U.N.T.S. 48, T.I.A.S. 4044. But see note 29 above.

72 Under Art. 3 of the IAEA Statute of Oct. 26, 1956, 276 U.N.T.S. 3, T.I.A.S. 3873. On current IAEA practice regarding basic safety standards, see Agu, , “Technical Basis of Regulatory Measures for Radiation Protection,” in Nuclear Law for a Developing World (IAEA Legal Series, No. 5) 209 (1969)Google Scholar; Daw, , “Agency Standards and Codes of Practice Relevant to Radioactive Contamination of a Public Environment,” in IAEA, Environmental Contamination by Radioactive Materials 221 (1969)Google Scholar; and Szasz, The Law and Practice of the International Atomic Energy Agency (IAEA Legal Series, No. 7) 659–701 (1970).

73 For the distinction from standards, see the sources cited above, notes 24 and 28.

74 Note 36 above. Other, less formalized types of non-mandatory standards issued jointly by FAO and WHO are the Guidelines for Legislation Concerning the Registration for Sale and Marketing of Pesticides, FAO Doc. PL:CP/21 (1969); and cf. the FAO Model Scheme for the Establishment of National Organizations for the Official Control of Pesticides, FAO Doc. AGP:CP/28 (1970).

75 Dobbert (loc. cit. note 36 above, at 716) points out certain parallels to the standard contracts, forms and conditions drawn up by the U.N. Economic Commission for Europe and by the International Chamber of Commerce. See also the reference to the standard conditions of the Council for Mutual Economic Assistance (COMECON) by Skubiszewski, op. cit. note 16 above, at 250.

76 Adapted from the terminology (“potentially binding”) proposed by Carroz and Roche, loc. cit. note 42 above, at 687.

77 Sec. 27 (12) of the regulations adopted pursuant to Art. 13, note 22 above.

78 UPU, Documents du Congrès Postal Universel de Paris 1878, at 664 (1879).

79 See Codding, op. cit. note 22 above, at 107, and loc. cit. note 26 above, at 152.

80 Established by the Paris Convention (note 23 above); see Ide, International Aeronautic Organizations and the Control of Air Navigation (1935).

81 See Erler, op. cit. note 24 above, at 111–112. An early warning example was the case of Brazil, which did not join ICAN because it felt unable to comply with rigid international standards; see Pepin, , “La Commission Américaine Permanente d’Aéronautique,” 7 Revue Aéronautique Internationale 368, at 370 (1937)Google Scholar.

82 Note 24 above, Art. 38. See especially Buergenthal, Law-Making in the International Civil Aviation Organization 76–101 (1969).

83 WHO (note 26), Art. 22; Psychotropic Convention (note 27 above), Art. 2; WMO (note 28), Art. 8; IMCO Facilitation Convention (note 29), Art. 8; Road Traffic Convention (note 33), Art. 31 (3); Codex Alimentarius (note 36), General Principles, Art. 4 (B); UNCITRAL proposal (note 37), Art. 10; Whaling Convention (note 38), Art. 5 (3); South Pacific Agreement (note 39), Art. 4; Northeast Atlantic Convention (note 40), Art. 8; amended Northwest Atlantic Convention (note 51), Art. 8; Atlantic Tuna Convention (note 42), Art. 8; Southeast Atlantic Convention (note 43), Art. 9 (2).

84 Adopted on May 12, 1954, 327 U.N.T.S. 3, T.I.A.S. 4900, Art. 16 (4) as amended in 1962.

85 Note 43 above, Art. 9 (2).

86 Fleischer (op. cit. note 3 above), Art. 52; explained (at 67) as a combination of the systems under the 1954 Oil Pollution Convention (note 84 above) and of the 1959 Northeast Atlantic Fisheries Convention (note 40 above), which “may prove to be successful also in regard to other types of pollution.” Detter and Skubiszewski (op. cit. note 16 above) describe the principle as “contracting out.” Note, however, that this term has been used in a different context by the International Law Commission; viz., for inter se contractual modifications of a treaty under Art. 41 of the 1969 Vienna Convention. See the ILC commentary (op. cit. note 18 above) at 65, and cf. the materials cited in Rosenne, The Law of Treaties: A Guide to the Legislative History of the Vienna Convention 245–247 (1970).

87 No detailed figures are available. According to the ICAO Secretariat, Memorandum on ICAO 23 (6th ed., 1969), no majority of member states had ever opted out of the approximately 600 regulations which had become effective until then by way of annex adoption or amendment. In UPU, the “abstention” procedure had been used some 122 times from 1874 to 1963, according to Codding, op. cit. note 22 above, at 107. In WHO, 73 reservations were made by member states until 1957, of which 38 were rejected (note 90 below); see WHO, The First Ten Years 260 (1958).

88 As regards air navigation over the high seas, see Art. 12(3) of the Chicago Convention (note 24 above); Carroz, , “International Legislation on Air Navigation Over the High Seas,” 26 J. Air Law and Commerce 159 (1959)Google Scholar; Drion, , “The Council of ICAO: An International Legislator Over the High Seas,” Studi in Onore di Antonio Ambrosini 326 (1957)Google Scholar; Buergenthal, note 82 above, at 80.

89 On the de facto “sanctions” against opting out under Arts. 39–40 of the ICAO Convention, see Jones, , “Amending the Chicago Convention and its Technical Standards: Can Consent of All Member States be Eliminated?” 16 J. Air Law and Commerce 189 (1949)Google Scholar; Skubiszewski, op. cit. note 16 above, 41 Brit. Yr. Bk. Int. Law 214 (1968); Buergenthal, op. cit. note 82 above, at 86.

90 Art. 101 of the International Health Regulations (1969) of WHO (note 26 above) provides that “reservations” to the regulations must be accepted by the World Health Assembly in order to be valid. On past experience with this system see Detter, op. cit. note 16 above, at 241.

91 Clauses to this effect, usually requiring a two-thirds majority decision, may be found in the amendment procedures of several international organizations: e.g., ICAO (note 24 above), Art. 94 (b), and IMCO (note 71 above), Art. 52. See Zacklin, The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies (1968); and cf., for similar clauses in some international commodity agreements, U.N. Secretariat, Handbook of Final Clauses (ST/LEG/6) 145 (1957). The coercive effect of this procedure has been criticized as “un système autoritaire camouflé” by Scelle, , “La révision dans les conventions générales,” 42 Annuaire de l‘Institut de Droit International 185 (1948)Google Scholar. The Road Traffic Convention (note 33 above) in Art. 31 (4) expressly excludes application of this sanction to two of the more controversial technical annexes (Nos. 1 and 2).

92 E.g., see Art. 9 (3) of the Southeast Atlantic Convention (note 43 above): “If an objection is presented within the ninety-day period referred to in the preceding paragraph, any other Contracting Party may present an objection at any time within a further period of sixty days or within thirty days after notification of an objection presented by another Contracting Party made within the further sixty-day period.”

93 Most elaborate in this respect is the “reconfirmation system” of the Atlantic Tuna Convention; see Carroz and Roche, loc. cit. note 42 above, at 689.

94 E.g., the Rail Transport Conventions (note 32 above: CIM Art. 69, CIV Art. 68): “The decision [of the Revision Commission] shall be deemed to be accepted unless within a period of three months from the date of notification not less than five Governments of Contracting States have lodged objections” [four months according to a 1969 draft revision]. Under the Northeast Atlantic Convention (note 40 above) and the Southeast Atlantic Convention (note 43 above), objections by at least three states are sufficient to prevent recommendations from becoming binding erga omnes (though not from being voluntarily accepted by other states inter se).

95 E.g., under the Chicago Convention (note 24 above), the Northwest Atlantic Convention (note 41 above), the Atlantic Tuna Convention (note 42 above), and the Draft Convention on the Export, Import and Transit of Certain Species of Wild Animals and Plants (note 58 above).

96 Bowett, The Law of International Institutions 131 (2nd ed., 1970). Cf., on the effectiveness of these procedures in marine conservation: Carroz, , “Regional Fishery Bodies and the Apportionment of the Yield from the Living Resources of the Sea,” 1970 Proceedings Pacem in Maribus Conference Google Scholar.

97 See, generally, Seidl-Hohenveldern, , “Transformation or Adoption of International Law into Municipal Law,” 12 Int. and Comp. Law Q. 88 (1963)Google Scholar. Transformation of international standards into national law is frequently delegated (by way of enabling legislation) to a lower level of statutory enactment than transformation of treaties; see the examples given by Erler, loc. cit. note 16 above, at 162, and by Skubiszewski (toe. cit. note 16 above), 41 Brit. Yr. Bk. Int. Law 268.

98 ILO Constitution (note 70 above), Art. 19 (5) (d).

99 WMO Convention (note 28 above), Art. 8.

100 Northeast Atlantic Convention (note 40 above), Art. 8.

101 Southeast Atlantic Convention (note 43 above), Art. 10.

102 By Res. No. 2, the 1965 Conference (note 29 above), “having drafted the Standards which form part of the present Annex in such a way as to facilitate incorporation into national legislation, resolves to invite the attention of Contracting Governments . . . to the desirability of accepting the Standards whenever practicable and bringing their own formalities, documentary requirements and procedures into full accord with them.”

103 Ago, loc. cit. note 8 above.

104 WHO Constitution, note 26 above, Art. 20: 18 months.

105 ILO Constitution, note 70 above, Art. 19: one year, exceptionally 18 months. To some extent, this formula takes into account the special constitutional situation of federal states, where the enactment of certain standards may be outside federal jurisdiction. See also Art. 4 of the UNESCO Constitution of Nov. 16, 1945, 4 U.N.T.S. 275, T.I.A.S. 1580.

106 E.g., the biennial reports under the Atlantic Tuna Convention (note 42 above); see also Art. 11 of the FAO Constitution of Oct. 16, 1945, T.I.A.S. 1554, as amended by Res. 13/71 of the 16th FAO Conference (November, 1971).

107 E.g., WHO Constitution, note 26 above, Art. 20; see also Art. 22 of the European Social Charter of Oct. 18, 1961, 529 U.N.T.S. 89.

108 E.g., the “observations” on national implementation of international labor standards, by the ILO Committee of Experts and Conference Committee; see Landy, The Effectiveness of International Supervision: Thirty Years of ILO Experience (1966); and cf. the reports procedure under the U.N. Human Rights Covenants of Dec. 16, 1966, 61 A.J.I.L. 861 (1967); but cf. also Bender, , “Ad hoc Committees and Human Rights Investigations: A Comparative Case Study in the Middle East,” 38 Social Research 241 (1971)Google Scholar. One could also envisage a permanent inspection system, either directly by international institutions (similar to the IAEA and Euratom safeguards and safety controls; cf. McKnight, Atomic Safeguards: A Study in International Verification, UNITAR, 1971) or on the basis of information from national institutions (as under the ILO Labor Inspection Convention No. 81 of July 11, 1947, 54 U.N.T.S. 3; cf. Landy, op. cit. at 156–163).

109 E.g., the ICAO Council under Art. 54 (j) of the Chicago Convention, note 24 above.

110 E.g., the Commissions of Inquiry appointed under Art. 26 of the ILO Constitution (note 70 above). See also the investigation procedure under Art. 28 of the European Convention on Human Rights of Nov. 4, 1950, 213 U.N.T.S. 221.

111 E.g., see Art. 7 of the Antarctic Treaty of Dec. 1, 1959, 402 U.N.T.S. 71, T.I.A.S. 4780; and cf. the comparative survey of controls in marine conservation by Carroz, and Roche, , “The International Policing of High Sea Fisheries,” 6 Canadian Yr. Bk. Int. Law 61 (1968)CrossRefGoogle Scholar; and Koers, , “The Enforcement of International Fisheries Agreements,” 1 Netherlands Yr. Bk. Int. Law 1 (1970)Google Scholar.

112 Art. 88 of the Chicago Convention (note 24 above); Art. 83 of the Euratom Treaty (note 49 above). On the IAEA practice of making project assistance conditional upon compliance with IAEA standards, see Szasz, op. cit. note 72 above, at 684–693; see also the IUCN Draft Convention on Conservation of the World Heritage (note 2 above), Art. 2, par. 4 (Note 3), where withholding of assistance is envisaged in case of non-compliance with protection requirements.

113 E.g., Arts. 33, 39, 40 of the Chicago Convention, notes 24, 89 above.

114 E.g., on the legislative assistance programs of the U.N. and specialized agencies in Africa, see 1 Elisha, Les institutions Internationales et le développement économique en Afrique 110–262 (Paris University thesis, 1969). Several international organizations supervise and promote implementation through their regional offices, and the ICAO Council has created a “Standing Group on Implementation”; see Memorandum on ICAO 30 (6th ed., 1969), and Buergenthal, note 82 above, at 101–114.

115 See Wu, Chi-Yuen, “Training in Public Administration for Development,” 10 J. of Administration Overseas 12 (1971)Google Scholar; and cf. Könz, , “Legal Development in Developing Countries,” 1969 Proceedings, American Society Int. Law 91 Google Scholar; Haskins, , “United States Technical Assistance for Legal Modernization,” 56 A.B.A. Journal 1160 (1970)Google Scholar; and the two conference reports by Merillat and Hyde, respectively, “Law and Developing Countries,” 60 A.J.I.L. 71 (1966), and 61 ibid. 571 (1967).

116 Schachter, loc. cit. note 11 above.

117 Viz., the International Health Regulations (note 26); the international food standards of the Codex Alimentarius (note 36); the conservation regulations under the Whaling Convention (note 38), the South Pacific Convention (note 39), the Northeast Atlantic Convention (note 40), the Northwest Atlantic Convention as amended (note 41), the Atlantic Tuna Convention (note 42), the Southeast Atlantic Convention (note 43), the African Nature Conservation Convention (note 53), the Southeast Asia and Pacific Plant Protection Agreement (note 55); the aircraft noise certifications of ICAO (note 48); the radiation protection standards of EURATOM (note 64) and of the IAEA (note 72). In addition, the following standards are now in preparation: lists of protected species under the IUCN Draft Convention (note 58); water standards under the draft conventions of the Council of Europe (note 46) and of the Lake Chad Basin Commission (note 47). International standards for measuring techniques set by the International Union of Weights and Measures (note 15; e.g., for radiation measurement) and by the International Organization for Standardization (note 15; e.g., for toxicity measurement in chemical products) should also be mentioned in this context.

118 See the reply by Codding to Mendelsohn’s remarks (note 17 above) in 1965 Proceedings, American Society Int. Law 159–160.

119 Note 48 above, and cf. note 24.

120 In January, 1971, the U.S. Federal Aviation Agency (FAA) announced the preparation of national standards for aircraft pollution control, to supersede local and State programs, 94 Aviation Week and Space Technology (No. 3) 23 (1971). For background information, see Proceedings, Conference on Aircraft and the Environment 218–239 (Society of Automotive Engineers and U.S. Dept. of Transportation, 1971); cf. Sand, , “Intemationaler Umweltschutz und neue Rechtsfragen der Atmosphärennutzung,” 20 Zeitschrift fur Luftrecht und Weltraumrechtsfragen 109, 129 (1971)Google Scholar.

121 Cf. the recommendations of the 1955 Conference on the Conservation of the Living Resources of the Sea (pars. 43-e and 43-f) to the effect that, where regulatory powers are granted to inter-governmental bodies, these powers should be sufficiently broad to ensure the full application of all suitable conservation measures which have been arrived at on the basis of adequate scientific investigations, and that there should be facilities for adjusting and reviewing the convention to meet changing conditions and to take advantage of advancing technical and scientific knowledge; U.N., Report of the International Technical Conference on the Conservation of the Living Resources of the Sea (Doc. A/CONF.10/6)5–6 (1955).

122 E.g., see the maximum levels (“tolerances” and “practical residue limits”) for pesticide residues in food, published on the basis of international expert committee findings by the joint FAO-WHO Codex Alimentarius Commission (note 36 above): Recommended International Tolerances for Pesticide Residues, 1st Series: FAO Doc. CAC/RS. 2 (1969); 2nd Series: FAO Doc. CAC/RS. 35 (1970). On the definition of standards in economic terms of “results” and “performance” see Ciriacy-Wantrup, op. cit. note 13 above, at 257–259. The derived working levels as defined by the Preparatory Committee for the Stockholm Conference (note 12 above) include “environmental or ambient quality standards, maximum permissible limits and maximum allowable concentrations.”

123 See Ciriacy-Wantrup, op. cit. note 13 above, at 35–47. For background information on the depletion of bioresources see the international lists of rare and endangered species contained in the IUCN Red Data Books (1966 to date). A combination of qualitative and quantitative standards (“essential or desirable degree of integrity”) is suggested by Frankel, , “Genetic Conservation in Perspective,” in Genetic Resources in Plants: Their Exploration and Conservation 469 (Frankel, and Bennett, eds., 1970)Google Scholar. The concept of “environmental integrity” also appears in the Canadian Draft Declaration on the Human Environment (Arts. 2 and 3) submitted and discussed at an inter-governmental working group session in May, 1971; see the report, U.N. Doc. A/CONF. 48/PC. 12, Annex IV, at 13 (June, 1971). The UNITAR Study and the recommendations of the Preparatory Committee (note 12 above), which focus on pollution only, do not include depletion standards. See, however, on the interdependence of resource depletion and degradation: Natural Resources, Quality and Quantity (Ciriacy-Wantrup and Parsons eds., 1967).

124 Besides maximum limits (i.e., absolute prohibition of all emissions exceeding a specified “intolerable” level), an international system of effluent charges (i.e., progressive compensation payments due for all emissions exceeding a specified “undesirable” level) is also conceivable; e.g., see the OECD proposals for international tolerance limits, as reported in the New York Times of Feb. 19, 1970, p. 11, col. 1. A progressive fee to be imposed on users of vehicles with combustion engines, with the proceeds to be allocated to users of non-polluting vehicles is suggested by Contini, E., “The Elimination of Smog,” in Ecocide and Thoughts Towards Survival 141 (Fadiman, and White, eds., 1971)Google Scholar.

125 E.g., the European Agreement on the Restriction of the Use of Certain Detergents in Washing and Cleaning Products, adopted by the Council of Europe on Sept. 16, 1968, 16 European Yearbook 335 (1968), and already implemented by several member states. It may be noted, however, that any revision of the 80 percent bio-degradability level established by this Agreement (Art. 1) requires diplomatic consultations (Art. 3).

126 On the potential effect of anti-pollution laws as new non-tariff trade obstacles, see G. and V. Curzon, Hidden Barriers to International Trade 30–31 (1970), and particularly the recommendations on “international economic implications of environmental control and pollution abatement programs,” in U.S. Commission on International Trade and Investment Policy, United States International Economic Policy in an Interdependent World 129 (1971). A step towards harmonization of standards has recently been made by the Organization for Economic Co-operation and Development (OECD) with the introduction, for an initial period of two years, of a “Procedure for Notification and Consultation on Measures for Control of Substances Affecting Man or his Environment,” adopted on May 18, 1971, OECD Doc. C (71) 73/Annex (1971); cf. the earlier OECD Council Resolution of March 2, 1971, Doc. C (71) 43 (1971). Cf. the notification requirement for food additive controls pursuant to Res. 23.50 adopted by the World Health Assembly on May 21, 1970; WHO Official Records (No. 184) 26 (1970); and especially the work of the Codex Alimentarius Commission (note 36 above).

127 Under the ICAO system of “notification of differences” (notes 24 and 82 above), governments are usually requested to inform the Organization by a fixed date: (a) whether they wish to register disapproval concerning any part of the standards; (b) whether differences will exist on the specified date of uniform applicability or thereafter between national regulations or practices and the provisions of the standards; and (c) as of which date or dates they will have complied with the provisions of the standards.

128 Cf. the “directives” (binding as to objectives, optional as to means) under the Euratom Treaty (note 64 above) and in the European Communities generally for the approximation or harmonization of legislative and administrative provisions, Arts. 100–102 of the Treaty Establishing the European Economic Community, of March 25, 1957, 298 U.N.T.S. 3, 51 A.J.I.L. 865 (1957). Another precedent for this approach are the Objectives for Boundary Water Quality Control, first recommended in 1950 by the U.S.-Canadian International Joint Commission (established under the Boundary Waters Treaty of Jan. 11, 1909, T.S. 548). The flexible concept of water quality “objectives” (technical criteria to be met in order to maintain the waters in satisfactory condition, yet allowing governments a choice of methods to achieve the objectives) proved so effective that it was ultimately embodied in the U.S. Federal Water Quality Act of 1965; see Bilder, , “Controlling Great Lakes Pollution: A Study in U.S.-Canadian Environmental Cooperation,” 70 Mich. Law Rev. (forthcoming, 1972)Google Scholar.