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Sustainable development, normative development and the legitimacy of decision-making*

Published online by Cambridge University Press:  07 July 2009

Ellen Hey
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Abstract

The legitimacy of decision-making within international institutions increasingly is the subject of both policy and academic discourse. This essay addresses that subject with respect to international institutions involved in implementing the concept of sustainable development by way of multilateral environmental agreements (MEAs) and which in that process engage in normative development. The question of the legitimacy of decision-making arises in this context, in particular, because developed states have ‘outsourced’ their obligation, to transfer financial means to developing states for purposes of implementing MEAs, to the World Bank and institutions associated with the Bank, such as the Global Environment Facility. This essay analyses the manner in which the legitimacy of decision-making is addressed in relevant policy and academic-legal discourse and sets out the relevant institutional and decision-making structures through which the concept of sustainable development attains normative content. It concludes that the interactional theory of international law and the principle of good self-regulation, or eunomics, offer valuable insights into what is at stake when considering the legitimacy of decision-making in the implementation of sustainable development by way of MEAs, insights that are relevant within the wider context of decision-making by international institutions.

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Articles
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Netherlands Yearbook of International Law , Volume 34 , December 2003 , pp. 3 - 53
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Copyright © T.M.C. Asser Press 2003

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References

1. Gro Harm Brundtland in the Chairman's Foreword to the report of the World Commission on Environment and Development (also known as the Brundtland Commission), Our Common Future (Oxford, Oxford University Press 1987) p. ix.Google Scholar

2. The term ‘decision-making process’ in this essay refers to the totality of rules which determine decision-making, including, for instance, rules relating to transparency, public participation and monitoring of compliance and also decision-making procedures. The term ‘decision-making procedure’ in this essay refers to the procedure by means of which a decision is finally taken and includes, for example, issues such as participation in meetings and voting arrangements.

3. Werksman, J., ‘Consolidating Governance of the Global Commons: Insights from the Global Environmental Facility’, 6 YIEL (1995) pp. 27–63, at p. 28.Google Scholar

4. Ibid., at pp. 61–62.

5. ILC, report on the work of its fifty-fourth session, 29 April-7 June and 22 July-16 August 2002, Official Records General Assembly, fifty-seventh session, Supplement No. 10(A/57/10), Chapter VII, Responsibility of International Organizations pp. 228–236. Recent ILC documents may be obtained via the website of the ILC, <http://www.un.org/law/ilc>.

6. See Third Report of the ILA Committee on Accountability of International Organisations, Co-Rapporteurs Malcom, Shaw and Karel, Wellens, ILA, Report of the Seventieth Conference, New Delhi, 2002, pp. 772–806.Google Scholar

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8. See Zoethout, C.M., Constitutionalisme (Arnhem, Gouda Quint 1995) for an analysis of constitutionalism, democracy and the rule of law, at pp. 295–303.Google Scholar

9. See the discussion of the ‘interactional’ theory of international law, developed by Brunnée and Toope, the text starting at infra n. 75.

10. See the discussion of Allot's concept of constitutionalism the text starting at infra n. 111.

11. See infra section 3.

12. See Schermers, H.G. and Blokker, N.M., International Institutional Law, 4th edn. (Boston, Martinus Nijhoff Publishers 2003)Google Scholar paras. 19–30 and 1890–1902, where the authors discuss the essential differences between international society and national society, and the importance of these differences for international institutional law.

13. See for example, Petersmann, E.-U., ‘Time for a ‘United Nations Compact’ for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration’, 13 EJIL (2002) pp. 621–650CrossRefGoogle Scholar. Petersmann proposes the integration of human rights in the law of international organisations, and in particular in the WTO. He describes the change he proposes as ‘change from international functionalism to constitutionalism’ (p. 623). This change in the law of international organizations should result in, among other things, individuals being able to invoke these rights before their national judges, just as in the European Union (p. 650). See also Zoethout, op. cit. n. 8, at pp. 1–7.

14. See in particular, the Separate Opinion of Judge Weeramantry, the then Vice-President of the International Court of Justice, in the Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ, Judgment, 25 September 1997, Gen. List No. 92. Weeramantry considers sustainable development to be a principle with normative value that serves to ‘weigh considerations of development against environmental considerations’ (p. 1) and to harmonize developmental and environmental needs (p. 2), which was part of many ancient systems of law (pp. 9–19). Also see Handl, G., ‘Environmental Security and Global Change: The Challenge to International Law’, 1 YIEL (1990) pp. 3–33, at pp. 24–28Google Scholar. Handl refers to, among other things, the fact that the concept also has a utilitarian character that ‘implies some measure of international accountability’. See also Lowe, V., ‘Sustainable Development and Unsustainable Arguments’, in Boyle, A. and Freestone, D., eds., International Law and Sustainable Development, Past Achievements and Future Challenges (Oxford, Oxford University Press 1999) pp. 19–37CrossRefGoogle Scholar. Lowe states that the argument that the concept of sustainable development is a binding norm of international law in the sense of Art. 38(1) of the Statute of the International Court of Justice is untenable (p. 21). Instead, he argues that the normative status of the concept of sustainable development must be drawn from its value as ‘element of the process of judicial reasoning’. The concept of sustainable development would then function as a meta-principle that helps to set the limits of other rules and principles whenever these conflict with each other or overlap (p. 31). He states that the concept can have such a function, that of a ‘modifier’, when it is employed by judges, but also when it is employed by states in negotiations (p. 35). He compares this role of the concept of sustainable development to the manner in which the concept of the most favored nation functions in international law (pp. 34–35). See also the Report of the ILA Committee on Legal Aspects of Sustainable Development, Rapporteur N. Schrijver, in ILA, supra n. 6, pp. 381–398 and the text of the resolution adopted by the ILA, New Delhi Declaration of Principles of International Law Relating to Sustainable Development, in the above-mentioned ILA Report, pp. 22–29.

15. See text following supra n. 78.

16. For a discussion of substantive aspects of the concept of sustainable development see the contributions to Boyle, A. and Freestone, D., eds., International Law and Sustainable Development, Past Achievements and Future Challenges (Oxford, Oxford University Press 1999)CrossRefGoogle Scholar; Schrijver, N.J., On the Eve of Rio + 10: Development – the Neglected Dimension in the International Law of Sustainable Development, Address delivered on the occasion of the 49th Anniversary of the Institute of Social Studies (ISS), 11 October 2001, (The Hague, ISS 2001).Google Scholar

17. For further development of this argument see section 3.2 infra.

18. See text after infra n. 133.

19. Para. 31, Johannesburg Declaration on Sustainable Development, 4 September 2002, United Nations, Report of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August-4 September 2002Google Scholar, UN Doc. A/Conf.199/20, p. 1, available at <http://www.un.org>. The Johannesburg Declaration is also included in 2 International Environmental Agreements: Politics, Law and Economics (2002) p. 403.Google Scholar

20. The Johannesburg Declaration was adopted at the UN World Summit on Sustainable Development, held in Johannesburg, South Africa, from 26 August to 2 September 2002. The aim of the conference was to evaluate the implementation of the agreements adopted at UNCED and to conclude further agreements. The conference was the third worldwide conference covering all aspects of environmental protection, and later environmental protection and development, to be organized by the UN. The first conference took place in 1972 in Stockholm (United Nations Conference on the Human Environment), UNCED was the second conference. UNCED took place in Rio de Janeiro, Brasil in 1992. The two most important policy documents that were adopted at the Johannesburg Conference were: the Johannesburg Declaration and its associated Plan of Implementation of the World Summit on Sustainable Development (Report of the World Summit on Sustainable Development, supra n. 19, p. 7). The Declaration is a political document; the plan provides the implementing policies.

21. The Brundlandt Report was drafted by an independent commission consisting of authoritative individuals who participated in the work of the commission in their personal capacity. The Commission was established by the United Nations. It consisted of members from both the South and the North. For further information on the members and work of the Brundtland Commission see supra n. 1, Annex 2 to the report, ‘The Commission and its Work’, pp. 352–383.

22. Rio Declaration on Environment and Development, 1992, 31 ILM (1992) p. 874. The Rio Declaration is the political document that emerged from UNCED.

23. Agenda 21: Programme of Action for Sustainable Development, United Nations Publication – Sales No. E.93.I.11, Agenda 21 contains the policies that serve to implement the Rio Declaration.

24. Supra n. 1, at p. 337.

25. Para. 33.14, (A)(iii), Agenda 21.

26. Supra n. 1, at p. 43.

27. Ibid.

28. See text at and infra n. 146.

29. The South Commission, The Challenge to the South, The Report of the South Commission (Oxford, Oxford University Press 1990) in particular at pp. 263–265Google Scholar. The South Commission was an independent commission that was established in 1987 within the framework of the Movement of Non-Aligned Countries, at the initiative of the then Prime Minister of Malaysia, Mahathir Bin Mohamad. The chairman of the Commission was Julius K. Nyerere, former president of the United Republic of Tanzania. The members of the Commission were drawn from the South and the Former Yugoslavia (a member of the Movement of Non-Aligned Countries) and contributed to the work of the Commission in their personal capacity. The structure of the South Commission and of its report show strong resemblances to the structure and report of the Brundtland Commission. One important difference between the two commissions is, however, that the South Commission had the task of analyzing the problem of sustainable development from the point of view of the South. For further information on structure of the South Commission see the annex to the above-mentioned report, pp. 289–311.

30. Ibid., at pp. 263–265.

31. Cf., Chapters 3 (national) and 5 (international) of the report of the South Commission, ibid. See in particular at pp. 116–118 on the role of elements of democracy and the rule of law in the modernization of the state; a comparable paragraph was not included in Chapter 5 of the report.

32. See for example, paragraph 10, Rio Declaration. Compare Agenda 21, Chapter 8 (Integrating environment and development in decision-making, which deals with the national level) with Chapter 38 (International institutional arrangements, which deals with the international level). In Chapter 8, in contrast to Chapter 38, reference is made, for instance, to the importance of transparency and accountability of public organs as well as the importance of public participation. The latter element is referred to again in Chapter 23 (preamble) and in Chapters 24 to 32 (on the role of major groups) of Agenda 21. Conversely, in Chapter 38 reference is made only to the importance of NGOs, the academic community and the private sector, as well as local groups, for the achievement of sustainability (para. 38.5) and to the necessity of cooperation with NGOs and other relevant organisations (for instance, paras. 38.8(d) en 38.13(e)). Transparency is referred to as follows: ‘Within the intergovernmental framework, consideration should be given to allowing non-governmental organizations … to have relevant information available to them …’ (para. 38.14).

33. For further information see Sjöberg, H., Restructuring the Global Environment Facility, Working Paper 13, Global Environment Facility, 1999Google Scholar; Werksman, loc. cit. n. 3; see also the text after infra n. 162.

34. See text cited at n. 19.

35. For a discussion of the various grounds that may justify public participation in the development of environmental policy see Jonas, Ebbesson, ‘The Notion of Public Participation in International Environmental Law’, 8 YIEL (1997) pp. 51–97, at pp. 62–81.Google Scholar

36. Supra n. 20.

37. Ibid., for instance paras. 47(b), 139(e) and (f), 141, 168. The ILA opts for a comparable approach see para. 6 of ILA Resolution, supra n. 14. In the ILA report on sustainable development (supra n. 14, p. 386) a connection is made, albeit somewhat hesitantly, between the principle of intra-generational equity and the legitimacy of international decision-making processes.

38. On the need to change decision-making processes and procedures in international organizations, and in particular in the financial institutions, see Human Development Report 2002, Deepening Democracy in a Fragmented World (New York, UNDO and Oxford, Oxford University Press 2002) at pp. 112–121.Google Scholar

39. See Gupta, J., ‘Legitimacy in the Real World: A Case Study of the Developing Countries, Non-Governmental Organizations, and Climate Change’Google Scholar, in Coicaud and Heiskanen, eds., op. cit. n. 7, at pp. 482–518. The author analyses the problems that developing countries face in attaining effective participation in international negotiations on climate change and also indicates that proportionally many more non-state actors from the North are present at such negotiations than non-state actors from the South.

40. Bodansky, D., ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’, 93 AJIL (1999) pp. 596–624, at pp. 600–603.CrossRefGoogle Scholar

41. Ibid., at pp. 612–617.

42. Ibid., at pp. 615–616.

43. Ibid., p. 613.

44. Ibid., at pp. 617–623. Bodansky, with reference to F. Scharpf (‘Legitimacy in the European Union, 1998 (unpublished manuscript on file with Bodansky), asserts that democratic legitimacy (or input-oriented legitimacy) depends on citizens having a ‘thick’ identity, while expert legitimacy (or out-put oriented legitimacy) depends on ‘thin’ identity. Thick identity is associated with ‘communalities of history, language and culture that allow people to trust majority rule’; thin identity with ‘perceptions on common interest’ (Bodansky, pp. 622–623).

45. Brunnée, J., ‘COPing with Consent: Law-Making Under Multilateral Environmental Agreements’, 15 Leiden JIL (2002) pp. 1–52, at pp. 13–14.CrossRefGoogle Scholar

46. Ibid., and also see text at supra n. 39.

47. This assumption is reflected in the Vienna Convention on Treaties, 23 May 1969, 8 ILM 1969, p. 679, and in particular in Arts. 19–23 on reservations to treaties and Arts. 34–38 on rights and duties of states who are not party to a treaty. Furthermore, situations may occur in which, given the negotiations, illegal practices result in the invalidity of the agreement of a state. This would occur in case of for example, fraud by one state of another state or of corruption or coercion of the representative of a state (see Arts. 49–52). In addition, treaties that conflict with a peremptory rule of international law are void (see Art. 53, Vienna Convention on Treaties).

48. Art. 27, Charter of the United Nations.

49. Franck, T.M., Fairness in International Law and Institutions (Oxford, Clarendon Press 1995) pp. 28–29.Google Scholar

50. Ibid., at pp. 30–46.

51. Ibid., at pp. 354–356.

52. Ibid., at p. 351, ‘Fairness discourse, however, is not solely about process. The importance of process lies in its effect on outcomes. Outcomes are cardinal indicators of fairness. Outcomes also provide a measure of fairness of the process by which they are fashioned.’

53. Ibid., at p. 10.

54. Ibid., at pp. 11–13.

55. See text after supra n. 42.

56. ICJ, Reparation for Injuries Suffered in the Service of the United Nations, 11 April 1949, ICJ Rep. 1949, p. 180.Google Scholar

57. See Hey, E., Teaching International Law, State-Consent as Consent to a Process of Normative Development and Ensuing Problems (The Hague, Kluwer Law International 2003) at pp. 14–15Google Scholar.

58. Churchill, R.R. and Ulfstein, G., ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law’, 94 AJIL (2000) pp. 623–659.CrossRefGoogle Scholar

59. Also see Third Report of the ILA Committee on Accountability of International Organisations, supra n. 6, which, except for certain practical purposes, makes no distinction between international organizations and treaty based bodies.

60. The work of the ILA on the accountability of international organizations is relevant in this respect as it does not, in principle, distinguish between international organizations and treaty based bodies when it comes to issues of legitimacy. See Third Report of the ILA Committee on Accountability of International Organisations, supra n. 6, at p. 773. For the provisions which only apply to bodies established by treaty see the report mentioned here at p. 783, these provisions take into account the particular institutional structure relevant to treaty based bodies, but do not set different standards of accountability for these bodies.

61. Hey, op. cit. n. 57, pp. 19–23.

62. Bodansky, loc. cit. n. 40, in particular at p. 604.

63. Ibid., at pp. 601 and 604.

64. Ibid., at pp. 607–610 and 623–624.

65. Ibid. In various parts of his analysis Bodansky compares the situation at the international level with that within the European Union, and indicates that the differences between the two levels of decision-making are large, so that what is established in Europe cannot easily be transferred to the international level. For a different view on the possibility of this transformation see Petersmann, loc. cit. n. 13.

66. See text at supra n. 41 and further.

67. Ibid., at p. 623.

68. Marks, S., The Riddle of all Constitutions, International Law, Democracy, and the Critique of Ideology (Oxford, Oxford University Press 2000) pp. 102–118, at pp. 109–118.Google Scholar

69. Ibid., at p. 111.

70. Ibid., at pp. 113–114 and 116. See also Marks, S., ‘Democracy and International Governance’Google Scholar, in Coicaud, and Heiskanen, , eds., op. cit. n. 7, at pp. 47–68.Google Scholar

71. Marks, op. cit. n. 68, p. 110.

72. Ibid.Linklater, A., The Transformation of Political Community: Ethical Foundations of the Post-Westphalian Era (Cambridge, Polity Press 1998) as cited by Marks.Google Scholar

73. See text at supra n. 66.

74. Ibid., at p. 1.

75. Brunnée, J. and Toope, S.J., ‘International Law and Constructivism: Elements of an Interactional Theory of International Law’, 39 Columbia J Transn. L (2000) pp. 19–74Google Scholar. All further references to this note are to the above-mentioned article. For a summary of the research mentioned here see Brunnée, J. and Toope, S.J., ‘Interactional International Law’, 3 International Law FORUM du droit international (2001) pp. 186–192.CrossRefGoogle Scholar

76. The most important work by Fuller on which Brunnée and Toope base their theory is Fuller, L.L., The Morality of Law (New Haven, Yale University Press 1969Google Scholar) rev. edn., Brunnée and Toope also make frequent use of the essays on Fuller's theory included in Witteveen, W.J. and van der Burg, W., eds., Essays on Implicit Law and Institutional Design (Amsterdam, Amsterdam University Press 1999)Google Scholar. In this essay I base myself on the work of Fuller as interpreted by Brunnée and Toope. On the one hand, this is because I do not wish to redo the research conducted by Brunnée and Toope and wish rather to do justice to it; on the other hand, it is because of the fact that I am primarily concerned with the interactional theory of international law as developed by Brunnée and Toope.

77. For a summary see Brunnée and Toope (2000), loc.cit. n. 75, pp. 25–43.

78. Brunnée, loc. cit. n. 45 and by the same author ‘The Kyoto Protocol: Testing Ground for Compliance Theories?’, 63 ZaöRV/Heidelberg JIL (2003) pp. 255–280.Google Scholar

79. Brunnée and Toope (2000), loc. cit. n. 75, at pp. 43–48.

80. Ibid., p. 48 and Brunnée, J. and Toope, S., ‘Persuasion and Enforcement: Explaining Compliance with International Law’, forthcoming 2003 Finnish YIL.Google Scholar

81. Brunnée and Toope (2000), loc. cit. n. 75, at pp. 49–53.

82. Brunnée, loc. cit. n. 45, at pp. 38–40.

83. Brunnée and Toope (2002), loc. cit. n. 75, p. 52–53.

84. Ibid., at pp. 54–55.

85. See text at supra n. 50 and Brunnée and Toope, loc. cit. n. 80.

86. Fuller as cited by Brunnée and Toope (2000), loc. cit. n. 755, at pp. 54–55.

87. See text at and cited in supra n. 52.

88. Brunnée and Toope (2000), loc. cit. n. 75, at pp. 55–56.

89. Ibid., at p. 56.

90. Ibid.

91. Ibid., at pp. 51–52; Brunnée, loc. cit. n. 45, at pp. 36–37.

92. Ibid., at p. 56. See also Brunnée and Toope, loc. cit. n. 80.

93. Brunnée and Toope (2000), loc. cit. n. 75, at pp. 58–59.

94. Ibid., at p. 56.

95. Ibid., at pp. 56–57.

96. Ibid., at p. 57.

97. Ibid.

98. Ibid., at p. 59.

99. Ibid., at p. 60.

100. Ibid., at p. 62.

101. Ibid., at p. 62, fn. 190.

102. Ibid., at p. 69.

103. See text after supra n. 53.

104. Brunnée and Toope (2000), loc. cit. n. 75, at p. 62.

105. Ibid.

106. Ibid. (including quote from Fuller, footnotes omitted), at pp. 62–64.

107. Text at and note at supra n. 72.

108. Human Development Report 2002, supra n. 38, at p. 113.

109. Brunnée and Toope, so far, have not expressly addressed the legitimacy of international institutions nor the problem of legitimacy in the South-North context. They did apply the interactional theory of international law to a situation that involved the South-North context and in which a number of strongly divided developing countries and international organizations, among them the World Bank, played a role, that is, the development of a new regime for the Nile. That article, however, does not explicitly discuss the legitimacy of the international institutions involved. (Brunnée, J. and Toope, S., ‘The Changing Nile Basin Regime: Does Law Matter?’, 43 Harvard ILJ (2002) pp. 105–159)Google Scholar. Brunnée also indicates that in the case of great inequality between participants, measures should be taken to minimize the effect of this inequality on the process of (re)constitution of the rules of law. She emphasizes that participation as such does not guarantee inclusiveness, which may be ‘contingent on financial and legal capacity.’ Brunnée, loc. cit. n. 45, at p. 48, see text at and fn. 243 on the page mentioned here.

110. On globalistaion and normative development see Hey, op. cit. n. 57, at pp. 2–6.

111. Allot, P., Eunomia, A New Order for a New World (Oxford, Oxford University Press 1990) (henceforth Eunomia), pp. xi–xxiiiGoogle Scholar (on the aims of his theory); Allot refers to his idea of constitutionalism in various places in the book, in particular at pp. 167–177 and 178–206. An excellent summary of his ideas may be found in Allot, P., ‘The Concept of International Law’, 10 EJIL (1999) pp. 31–50 (henceforth ‘The Concept’).CrossRefGoogle Scholar

112. See ibid., Eunomia.

113. The continuous process of constitution and reconstitution to which rules of law, systems of law and actors are subject, according to both the interactional theory and to Allot, gives rise to associations with theories in the field of dynamic self-generation in biology, the cognitive sciences and, as is also clear from the work of Brunnee and Toope, the social sciences. These theories have in common that they assume a constant interaction between subject and environment, whereby the subject is constantly (re)constituting itself on the basis of its own system and in interaction with its environment and thereby also reconstituting its environment. For further information see Capra, F., The Hidden Connections, A Science for Sustainable Living, (London, Harper Collins 2002).Google Scholar

114. See Fuller, L.L., ‘Means and Ends’, in Winston, K.I., ed., The Principles of Social Order, Selected Essays by Lon L. Fuller, rev. edn. (Durham, Hart Publishing 2001) at pp. 62–78Google Scholar. Also see Witteveen, W.J., ‘Rediscovering Fuller: an Introduction’Google Scholar, in Witteveen and van der Burg, eds., op. cit. n. 76, at pp. 21–48 also the other contributions in that book which discuss the role of Eunomics in the work of Fuller.

115. Eunomia is the Greek word for good self-regulation.

116. Allot, Eunomia, op. cit. n. 111, at pp. 167–177. See also Zoethout op. cit. n. 8, at pp. 4–5.

117. Allot, ‘The Concept’, op. cit. n. 111, at p. 35. Where Allot's idea of constitutionalism differs to an important extent from, for instance, the idea of constitutionalism as formulated by Petersmann, see loc. cit. n. 13.

118. Allot, Eunomia, op. cit. n. 111, at pp. 336–337.

119. See text at supra n. 90.

120. Fuller, op. cit. n. 76, at p. 233

121. Ibid.

122. For further information see Korhonen, O., ‘International Governance in Post-Conflict Situations’, 13 Leiden JIL (2001) pp. 495–529.CrossRefGoogle Scholar

123. See para. 4 infra.

124. Hey, E., ‘The World Bank Inspection Panel: Towards the Recognition of a New Legally Relevant Relationship in International Law’, 2 The Hofstra Law & Policy Symposium (1997) pp. 61–74, at pp. 68–70.Google Scholar

125. Also see Wellens, K., Remedies Against International Organisations (Cambridge, Cambridge University Press 2002)CrossRefGoogle Scholar. Wellens in his book about remedies discusses those measures that states and individuals should have at their disposal to hold international institutions accountable.

126. ILA Committee on the Accountability of International Organisations, supra n. 6, at p. 773.

127. See for instance, point 4, of the RRP-s, ibid., at p. 777; see also Allot, Eunomia, op. cit. n. 111, at pp. 336–338.

128. See First Report of the ILA Committee on the Accountability of International Organisations, Co-Rapporteurs Shaw, M. and Wellens, K., ILA, Report of the Sixty-Eighth Conference, Taipei 1998, pp. 584–608, p. 603.Google Scholar

129. Wellens, op. cit. n. 6.

130. See text at and supra n. 14.

131. Brunnée and Toope (2000), loc. cit. n. 75, at p. 46.

132. See text at supra n. 52.

133. For a different approach see Gupta, op. cit. n. 39. Gupta analyses basic concepts in the prevalent doctrine of international law and shows how these concepts are disadvantageous to the position of developing countries and do not correspond to assumptions that prevail in these countries.

134. Allot, Eunomia, op. cit. n. 111, in the foreword mentioned there and i.p. p. xvii.

135. See text at supra n. 74.

136. Churchill and Ulfstein, loc. cit. n. 58, at pp. 650–651.

137. Bodansky, loc. cit. n. 40, at pp. 599 and 623.

138. See supra n. 109.

139. Mickelson, K., ‘South, North, International Environmental Law, and International Environmental Lawyers’, 11 YIEL (2000) pp. 53–81.Google Scholar

140. Marks, op. cit. n. 68.

141. See the end of paragraph 2, at page 12, supra.

142. For information on MEAs and their structure see Churchill and Ulfstein, loc. cit. n. 58.

143. For the text of the convention, the Kyoto Protocol (not yet in force) and related decisions, see <http://www.unfccc.int>. For further information, see the contributions on the climate change by H.E. Ott, ‘Global Climate’ in the ‘Year in Review’ section of various volumes of the YIEL; for an overview see Hey, E., ‘The Climate Change Regime: An Enviro-Economic Problem and International Administrative Law in the Making’, 1 International Environmental Agreements: Politic, Law and Economics (2001) pp. 75–100.CrossRefGoogle Scholar

144. For the text of the treaty, the Cartagena Protocol (in force 11 September 2003) and related decisions, see <http://www.biodiv.org>. For further information, see the contributions on the Biodiversity Convention by Johnston, S., ‘Convention on Biological Diversity’, in the ‘Year in Review’ section in various volumes of the YIEL.Google Scholar

145. For the text of and further information on the Stockholm Convention on Persistent Organic Pollutants, see <http://www.pops.int>. For further information, see contributions on, among other things, the POPs Treaty by Heywaert, V., ‘Regulation of Chemicals’ in the ‘Year in Review’Google Scholar section of various volumes of the YIEL.

146. See Mickelson, loc. cit. n. 139, in particular at pp. 69–77, for a critical analysis of and explanation of the way in which international ‘environmental lawyers’ treat this relationship.

147. Art. 5 of the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol), for instance, allows developing countries a period of respite of ten years to fulfill their obligations to reduce the emission of certain gasses. Art. 10A of the same Protocol provides that developed countries must transfer financial and technical means to developing countries via the multilateral fund established under Art. 10. This is the so-called Multilateral Fund, which is managed by the parties to the Protocol and not by the GEF. For the text of the Montreal Protocol and related decisions see <http://www.unep.org/ozone>. For information on the Multilateral Fund see <http://www.unmfs.org>. For further information on the Montreal Protocol see contributions by H.-M. Schally, ‘Ozone Layer’, in the ‘Year in Review’ section of the various volumes of the YIEL.

148. See for example, Art. 4(3) Climate Change Convention, Art. 20(2) Biodiversity Convention and Art. 20(2) POPs Convention. These provisions typically provide that ‘[T]he developed country Parties shall provide new and additional financial resources to enable developing country Parties to meet the agreed full incremental costs to them of implementing measures which fulfill the obligations of this Convention …’.

149. See for example, Art. 4(7), Climate Change Convention, Art. 20(4), Biodiversity Convention and Art. 13(4) POPs Convention. These provisions typically provide that ‘[T]he extent to which developing country Parties will effectively implement their commitments under this Convention will depend on the effective implementation of by developed country Parties of their commitments related to financial resources and transfer of technology …’.

150. The most striking example of this is the climate regime. In Art. 3 of the Climate Change Convention, on principles, explicit mention is made of developed countries taking the lead to combat climate change. The Kyoto Protocol constitutes the implementation of this principle by placing obligations to reduce emissions only on developed states and states with economies in transition, the so-called Annex I countries.

151. An exception to this rule is the procedure that is included in the Montreal Protocol to introduce adjustments and further reductions of ozone depleting substances, in other words to amend the annexes to the Protocol. On the basis of Art. 2(9) of the Protocol these measures, if consensus cannot be reached, can be adopted with a two-thirds majority of the parties present and voting. The Protocol explicitly provides that decisions so taken are binding on all states party to the Protocol.

152. See for instance, Arts. 15 juncto 16 of the Climate Change Convention. On the basis of these articles, the COP can adopt protocols on the basis of a three-quarters majority of the votes cast. Such protocols, however, only bind an individual state party after that party has ratified the protocol in question and the protocol has come into force, see for instance Art. 25 of the Kyoto Protocol.

153. The term conference of the parties serving as meeting of the parties, or COP/MOP, is used under the Kyoto Protocol and also under the Cartagena Protocol to the Biodiversity Convention to distinguish the meeting of states party to those protocols from the COP to the conventions themselves, see Art. 13, Kyoto Protocol and Art. 29, Cartagena Protocol.

154. See Arts. 6(2), 12(7) and 17 of the Kyoto Protocol and the draft decisions that were developed for purposes of implementing these articles and that were adopted during COP 7, the so-called Marrakesh Accords. See the report of the COP 7, Climate Change Convention, FCCC/CP/2001/13/Add. 1 to 3. It is assumed that these decisions will be adopted by the COP/MOP of the Kyoto Protocol when the protocol enters into force.

155. See also Brunnée, loc. cit. n. 45.

156. See also infra paragraph 4.3.1.

157. For further information see <http://www.ipcc.ch>.

158. See supra paragraph 4.2.

159. For the text of and information on the United Nations Convention to Combat Desertification, see <http://www.unccd.int>. For further information, see the contributions of E. Corell and L.M. Wagner, ‘Soil/Desertification’, in the ‘Year in Review’ section of the various volumes of the YIEL.

160. See supra n. 147.

161. World Bank Resolution 91–5, 30 ILM (1991) p. 1735. For further information see Boisson de Chazournes, L., ‘The Global Environment Facility Galaxy: On Linkages among Institutions’, 3 Max Planck Yearbook of United Nations Law (1999) pp. 243–258.Google Scholar

162. Para. 7, WB Resolution 91–5.

163. Agenda 21, para. 33.14, (A)(iii).

164. For further information see Sjöberg, H., Restructuring the Global Environment Facility, Working Paper 13, GEF, 1999Google Scholar; Werksman, loc. cit. n. 3.

165. IBRD, Executive Directors’ Resolution No. 94–2, 24 May 1994; IBRD Resolution, 487, 7 July 1994, 33 ILM (1994) respectively at p. 1281 and p. 1282; UNEP, Governing Council, Resolution SS.IV.1, 18 June 1994, 33 ILM (1994) at p. 1280; Excerpt from the report of the UNDP Executive Board Meeting, DP/1994/9, 13 May 1994, 33 ILM (1994) at p. 1279 juncto Instrument for the Establishment of the Restructured Global Environment Facility (GEF Instrument), 33 ILM (1994) at p. 1283.

166. Para. 22, GEF Instrument.

167. Para. 8, GEF Instrument and para. 1, Annex B, GEF Instrument.

168. Para. 21, GEF Instrument.

169. Para. 7, Annex B, GEF Instrument. See for example, Decision III/8 of the COP of the Biodiversity Convention, which in its Annex contains the Memorandum of Understanding between the Conference of the Parties to the Convention on Biological Diversity and the Council of the Global Environment Facility.

170. See supra n. 165.

171. Cf., Art. V, Sec. 2(b)(v), Articles of Agreement of the World Bank with para. 5 UNGA Res. 3351 (XXIX), 18 December 1974.

172. See Boisson de Chazournes, loc. cit. n. 161, at pp. 254–259.

173. See for example, the Memorandum of Understanding between the Conference of the Parties to the Convention on Biological Diversity and the Council of the Global Environment Facility, annexed to Decision III/8 of the COP to the Convention on Biological Diversity.

174. See for example, Art. 13(6) juncto Art. 14, POPs Convention, Art. 21 juncto Art. 39, Biodiversity Convention, and para. 6, GEF Instrument.

175. Paras. 6, 15 and 26, GEF Instrument also see text after supra n. 157.

176. GEF, Operational Program # 12, Integrated Ecosystem Management, 20 April 2000. Also see the GEF, Revised Guidelines for Additional Funding for Biodiversity Enabling Activities, 30 June 1997 and October 2000.

177. See for example, CBD Decision IV/11. ‘Review of the effectiveness of the financial mechanism’, paras. (c) and (j), Annex to the decision ‘Action to improve the effectiveness of the finacial mechanism’ and CBD Decision VI/17, ‘Financial mechanism under the Convention’, para, 7.

178. Para. 7, GEF Instrument. In 2002, 171 states participated in the GEF (Yearbook of International Cooperation on Environment and Development 2002/2003, The Fridjof Nansen Institute, Earthscan, 2002, p. 246).Google Scholar

179. Para. 13, GEF Instrument.

180. Para. 14, GEF Instrument.

181. Para. 25, GEF Instrument.

182. Para. 16 and Annex E, GEF Instrument.

183. Paras. 15 and 20, GEF Instrument.

184. Para. 25, GEF Instrument.

185. Para. 18, GEF Instrument.

186. See paras. 2 and 4 of the MOU referred to in supra n. 173 and, for example, Decision IV/13, Additional guidance to the financial mechanisms, of the COP to the Biodiversity Convention.

187. Para. 2, GEF Instrument. Also see Sjöberg, op. cit. n. 164, at p. 51.

188. Paras. 2 and 3, GEF Instrument, as amended in 2002, see <http://www.gef.org>.

189. GEF, Report of Mr. Mahamed T. El-Ashery, CEO and Chairman GEF, on GEF Policies, Operations and Future Development to the Second GEF Assembly, Beijng, China, October 2002, see website of the GEF.

190. See decisions of the COP of the UNFCCC, Decision 7/CP.7 and 10/CP.7, respectively, ‘Funding under the Convention’ and ‘Funding under the Kyoto Protocol’.

191. For the manner in which these flexible mechanisms are to be implemented see Decisions 15/CP.7, 16/CP/7, 17/CP.7, 18/CP.7 on the implementation of the flexible mechanisms, adopted by the Conference of the Parties to the UNFCCC at its 7th meeting, 29 October-10 November 2001 (Doc. FCCC/CP/2001/13/Add.2, 21 January 2002). Each of these decisions has annexed to it a draft decision that serves as a recommendation for adoption by the Conference of the Parties serving as the Meeting of the Parties tot the Kyoto Protocol, after the entry into force of the Kyoto Protocol.

192. Art. 6, Kyoto Protocol. This mechanism, known as ‘joint implementation’, involves both projects among developed states and between developed states and states with economies in transition.

193. Art. 12, Kyoto Protocol. This mechanism is known as the ‘clean development mechanism’.

194. Art. 17, Kyoto Protocol.

195. Art. 3(10)-(12), Kyoto Protocol.

196. Arts. 6(3), 12(9), Kyoto Protocol and for the Art. 17 mechanism, para. 5, Annex to Draft decision 18/CP.7.

197. Art. 3, Kyoto Protocol.

198. IBRD Resolution No. 99–0, as amended by IBRD Resolutions No. 2000–1 and 2003–3 (PCF Resolution), website of the PCF <http://www.prototypecarbonfund.org>. For further information see Freestone, D., ‘The World Bank's Prototype Carbon Fund: Mobilizing New Resources for Sustainable Development’, in Sabine, Schlemmer-Schulte and Ko-Young, Tung, eds., Liber Amicorum Ibrahim F.I. Shihata (The Hague, Kluwer Law International 2001) p. 265.Google Scholar

199. See PCF, Annual Report 2002, p. 13.

200. This means that both joint implementation and clean development projects are covered by the PCF.

201. Art. 2(1), PCF Resolution.

202. Para. 8, PCF Resolution.

203. The following public entities are involved in the PCF: Canada, Finland, Norway, Sweden and the Netherlands and the Japan Bank for International Cooperation, information from <http://www.prototypecarbonfund.org>.

204. The following private entities are involved in the PCF: British Petroleum Amoco, Chubu Electric Power Co., Chugoku Electric Power Co., Deutsche Bank, Electrabel, Fortum, Gaz de France, Kyushu Electric Power Co., Mitsubishi Corp. Mitsui, Norsk Hydro, Rabo Bank, RWE, Shikoku Electric Power Co., Statoil, Tohoku Electric Power Co. en Tokyo Electric Power Co, information from ibid.

205. Art. 4.1, PCF Resolution.

206. See the letter of the chairs of the Host Country Committee and the Participants Committee, attached to the PCF Annual Report 2002.

207. PCF Annual Report 2002, p. 13.

208. Art. 5.1, PCF Resolution.

209. Ibid.

210. Art. 3.3.3, PCF Resolution.

211. Art. 5.4 and 5.1(b), PCF Resolution.

212. Respectively, Arts. 6 and 7, PCF Resolution.

213. Art. 6.1, PCF Resolution.

214. Art. 6.4, PCF Resolution.

215. Art. 6.2, PCF Resolution.

216. Art. 7.1, PCF Resolution.

217. Art. 7.1, PCF Resolution.

218. PCF Annual Report 2002, p. 14.

219. Art. 7.2, PCF Resolution.

220. Art. 7.3(a), PCF Resolution.

221. For further information see Fitzmaurice, M.A. and Redgwell, C. ‘Environmental Non-Compliance Procedures and International Law’, 31 NYIL (2000) pp. 35–65CrossRefGoogle Scholar; Goote, M.M., ‘Non-Compliance Procedures in International Environmental Law’, 1 International Law FORUM du droit international (1999) pp. 82–89.CrossRefGoogle Scholar

222. For information on, for example, the procedure to be developed under the Cartagena Protocol see Doc. UNEP/CBD/ICCP/3/4, 6 March 2002, <http://www.biodiv.org/biosafety/compliance.asp>; for the compliance regime under the Montreal Protocol see Sec. 2.7, Handbook for the International Treaties for the Protection of the Ozone Layer – Sixth Edition (2003), <http://www.unep.org/ozone>; for information on the compliance system developed for the Kyoto Protocol see <http://unfccc.int/issues/comp.html> and Decision 24/CP.7, Procedures and mechanisms relating to compliance under the Kyoto Protocol, in FCCC/CP/2001/13/Add.3. For an overview of the compliance mechanism developed under the Kyoto Protocol see Brunnée (2003), loc. cit. n. 78.

223. Para. 3, non-compliance procedure Montreal Protocol.

224. See for instance, para. 9, non-compliance procedure Montreal Protocol.

225. Sec. IV, Decision 24/CP.7.

226. Sec. V, Decision 24/CP.7.

227. Sec. XV, Decision 24/CP.7.

228. See also Brunnée, loc. cit. n. 78.

229. According to section II(9) of Decision 24/CP.7 the enforcement branch will consist of 10 members, of which 5 are to be drawn from regional groups as defined by the United Nations, one from a small-island developing state, two from Annex I states and two from non-Annex I states.

230. Sec. V(1), Decision 24/CP.7.

231. These are emission reduction obligations of Annex I countries and modalities for participation in flexible mechanisms, as laid down in the ‘procedures and mechanisms’ agreed in Marrakesh, see supra n. 154.

232. Sec. XI, Decision 24/CP.7.

233. Sec. XI(3), Decision 24/CP.7.

234. Sec. II(6), Decision 24/CP.7.

235. Sec. VI(1), Decision 24/CP.7.

236. Sec. VIII(4), Decision 24/CP.7.

237. Goote, loc. cit. n. 221, p. 85.

238. On 22 September 1993 the IBRD and the IDA adopted identical resolutions: Res. IBRD No. 93–10 (1993), 34 ILM (1995) at p. 503, in particular. p. 520 and Res. IDA 93–6 (1993), 34 ILM (1995) at p. 503, at p. 520. For further information see Alfredsson, G. and Ring, R., eds., The Inspection Panel of the World Bank (The Hague, Martinus Nijhoff 2001)Google Scholar; Hey, loc. cit. n. 124; Schlemmer-Schulte, S., ‘The World Bank Experience with its Inspection Panel’, 28 ZaöRV (1998) pp. 353–388Google Scholar; Sureda, A. Rigo, ‘Process Integrity and Institutional Independence in International Organizations: The Inspection Panel and the Sanctions Committee of the World Bank’, in Boisson de Chazournes, L., Romano, C. and Mackenzie, R., eds., International Organizations and International Dispute Settlement: Trends and Prospects (Ardsley NY, Transnational Publishers 2002) pp. 165–193.Google Scholar

239. On 19 August 1994 the Inspection Panel adopted its Operating Procedures, Inspection Panel Operating Procedures, 19 August 1994, 34 ILM (1995) at p. 510.

240. See the introduction by Maurizio Ragazzi to the above-mentioned documents in 34 ILM (1995) at p. 503. Ragazzi mentions that fact that Ibrahim Shihata, the then Vice-President and General Counsel of the World Bank, indicated that the inspection panel procedure should be applicable to projects financed by the GEF. In practice, it appears that the Inspection Panel plays no part in monitoring the execution of such projects.

241. Although the total investment of the World Bank in environment related projects decreased from 17% of the budget in 2000 to 8% in 2002, the amount in 2002 was 0, 7 billion US $ of which 29% was invested in climate projects and 54% in biodiversity, 14% in water and 2% in ozone related projects. For 2003 an increase in the total budget is expected. See World Bank, Putting Our Commitment to Work, An Environment Strategy Implementation Progress Report, May 2003, pp. 39–40Google Scholar, available at <http://www.worldbank.org>.

242. The term ‘operational policies and procedures’ or ‘operational standards’ refers to ‘the Bank's Operational Policies, Bank Procedures and Operational Directives and similar documents issued before the series was started, and does not include Guidelines and Best Practices and similar documents and statements.’ See paragraph 12 of the IBRD and IDA resolutions. For further information see Boisson de Chazournes, L., ‘Policy Guidance and Compliance: The World Bank Operational Standards’, in Shelton, D., ed., Commitment and Compliance, The Role of Non-Binding Norms in the International Legal System (Oxford, Oxford University Press 2000) pp. 281–303.Google Scholar

243. Concerning these issues see Handl, G., ‘The Legal Mandate of Multilateral Development Banks as Agents for Change Towards Sustainable Development’, 92 AJIL (1998) pp. 642–665.CrossRefGoogle Scholar

244. Para. 12, IBRD and IDA resolutions, para. 4, Inspection Panel Operating Procedures.

245. Para. 13, IBRD and IDA resolutions and para. 1, Inspection Panel Operating Procedures.

246. Paras. 16–20, IBRD and IDA resolutions and chapters III and IV, Inspection Panel Operating Procedures.

247. Paras. 20–25, IBRD and IDA resolutions and chapters VII-X, Inspection Panel Operating Procedures.

248. Para. 19, IBRD and IDA resolutions and para. 39, Inspection Panel Operating Procedures.

249. Para. 21, IBRD and IDA resolutions and para. 60, Inspection Panel Operating Procedures.

250. Para. 21, IBRD and IDA resolutions and para. 46, Inspection Panel Operating Procedures.

251. See Hey, loc. cit. n. 238 and Rigo Sureda, op. cit. n. 238.

252. Arts. 34–38, Vienna Convention Treaty, 1969, 8 ILM (1969) at p. 679.Google Scholar

253. See text at and supra n. 241.

254. See text at and references in nn. 176 and 177.

255. This is why section 13 of the PCF Resolution provides explicitly that the PCF will have to adapt to developments within the Climate Change Convention and the Kyoto Protocol and that ultimately the distribution of the emission reduction units will have to take place in accordance with the rules established under the Kyoto Protocol.

256. See text at supra n. 91.

257. See also Anghie, A., ‘The Present and the Time Past: Globalization, International Financial Institutions and the Third World’, 32 JIL & Pol. (2000) pp. 243–290, at pp. 263–272.Google Scholar

258. See text at supra n. 64.

259. The United States, for instance, does not intend to ratify the Kyoto Protocol; it is a party to the Climate Change Convention. This means that the United States does not bear any concrete emission reduction obligations, but does have a voice and vote in the World Bank when it comes to deciding on modalities for the implementation of the Kyoto Protocol. See also the text at supra n. 252.

260. I note that the PCF also co-finances projects in countries with economies in transition on the basis of article 6 (joint implementation) of the Kyoto Protocol. In this case, however, the generated emission reduction rights are divided between the investor and the country in question.

261. For information on the amounts that may be involved see text at and supra n. 207.

262. See text at supra n. 217.

263. See text at supra n. 39. Also see Gupta, J., ‘The Role of Non-State Actors in International Environmental Affairs’, 63 ZaöRV/Heidelberg JIL (2003) pp. 459–486.Google Scholar

264. See text at supra n. 44.

265. Brunnée and Toope (2000), loc cit. n. 75, p. 73.

266. Cf., the text at supra nn. 189 and 206 and the information in supra n. 241

267. See text at supra n. 149.

268. I am grateful to Jutta Brunnée who through her comments on a previous version of this text pointed me towards this conclusion.

269. See text at and supra n. 3.

270. See Anghie, loc. cit. n. 257.

271. See text at supra n. 61.

272. See text at supra n. 62.

273. Chinkin, C., ‘Normative Development in the International Legal System’Google Scholar, in Shelton, ed., op. cit. n. 242, pp. 21–42, at p. 25.

274. Ibid., at p. 23.

275. Ibid., at pp. 21–42.

276. Ibid.

277. See text at supra n. 1.