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Development Cooperation and Compliance with International Environmental Law
Published online by Cambridge University Press: 17 February 2017
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- Plenary Panel: Nonbinding Norms and the Problems of Compliance
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- Copyright © American Society of International Law 2015
References
1 See, e.g., Palmer, G., New Ways to Make International Environmental Law, 86 AJ1L 259, 261, 263 (1992); Williams, V., Ozone Depletion, Developing Countries and Human Rights: Seeking Better Ground on Which to Fight for Protection of the Ozone Layer, 10/1 J. Nat'l. Res. & Env. L. 83, 107–108 (1994/95)Google Scholar.
2 See the following documents: Rio Declaration on Environment and Development, June 13,1992, reprinted in 31 ILM 874 [hereinafter Rio Declaration]; Agenda 21: Programme of Action for Sustainable Development, UN Doc. A/Conf. 151/26/Rev.I (Vol.1), Rio de Janeiro, June 14,1992 [hereinafter Agenda 21]; UN Convention on Biological Diversity, June 5, 1992, in force Dec. 29, 1993, reprinted in 31 ILM 818 [hereinafter Biological Diversity]; UN Framework Convention on Climate Change, May 5, 1992, in force March 21, 1994, reprinted in 31 ILM 849 [hereinafter Climate Change]; Non-legally binding authoritative statement of principles for a global consensus on the management, conservation and sustainable development of all types of forests; adopted June 13,1992, reprinted in3l ILM 881 [hereinafter Forest Principles]; UN Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa; June 17, 1994, opened for signature October 14, 1994, reprinted in 33 ILM 1328 [hereinafter Desertification].
3 The CSD was established by resolution of the General Assembly to encourage cooperation in the implementation of UNCED, and to allow for review of progress toward the UNCED objectives. Institutional Arrangements to follow up the UN Conference on Environment and Development, December 22, 1992, UNGA Res. A/47/ 191.
4 Freestone, D., The Road From Rio: International Environmental Law After the Earth Summit, 6J. Env. L. 193, 218 (1994)Google Scholar.
5 Lang, W., Diplomacy and International Environmental Law-Making: Some Observations, 3 Ybk. Int'l. Env. L. 108, 117–122 (1992)Google Scholar.
6 J.T. Lang, Biological Conservation and Biological Diversity, in International Environmental Negotiation 171–188 (G. Sjostedt ed., 1993).
7 On this issue, see E. B. Weiss, International Environmental Law: Contemporary Issues and the Emergence of a New World Order, 81 Geo. L. J. 675, 695–697 (1993).
8 For a fuller discussion of this issue, see P. Saunders, Development Assistance Issues Related to a Convention on Forests, in Global Forests and International Environmental Law 265, 275–307 (Canadian Council on International Law Ed., 1996) [hereinafter CCIL].
9 Agencies would be required to“... ensure that their activities do not disrupt the social or physical environments of recipient states...“: P. Muldoon, The International Law of Ecodevelopment: Emerging Norms for Development Assistance Agencies“ 22 Tex. Int'l. L. J. 1, 30 (1986).
10 There has been debate, at times acrimonious, over attempts to justify these obligations on the basis of the responsibility borne by developed states in the creation of current conditions. See, e.g., Bing Lang, Developing Countries and Ozone Layer Protection: Issues, Principles and Implications, 6 Tulane Env. L. 91 (1992); and the response of V. Williams. This discourse is more productive of misunderstanding than practical progress, however, and for the purposes of this paper it is assumed that the primary reason for extending such assistance is that progress cannot occur without it.
11 “For a discussion of this concept, see J. Brunée, A Conceptual Framework for an International Forests Convention: Customary Law and Emerging Principles, in CCIL, 55–62.
12 See, e.g., Climate Change, Art. 3(1).
13 See, e.g., Art. 5 of the Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, in force Jan. 1, 1989, reprinted in 26 ILM 1541; amended June 27, 1990, London Adjustments and Amendments [hereinafter Montreal Protocol], which provides for a ten-year compliance delay for developing countries with low consumption levels of certain substances.
14 See, e.g., Biological Diversity, Art. 16(1), and Climate Change, Art. 5.
15 See Biological Diversity, Arts 12(b) (promotion of research), 17 (information exchange) and 18(promotion of cooperation). See also Climate Change, Art. 5.
16 Biological Diversity, Art. 15.
17 “See, e.g., Biological Diversity, Art. 20 (2); Climate Change, Art. 4(3); Desertification, Art. 6.
18 For a discussion of early concern with this issue, see Financing Environmental Measures in Developing Countries: The Principle of Additionality (IUCN Environmental Policy and Law Paper No. 6,1974). Twenty- two years later, the March 1996 meeting of the CSD's Inter-sessional Ad Hoc Open-Ended Working Group on Finance and Production and Consumption saw continued debate over the same problem, 5/45 Earth Neg. Bull. (1996) (on-line version).
19 An earlier example was the financial mechanism, including the Multilateral Fund, set out in Art. 10 of the Montreal Protocol, to “meet all agreed incremental costs“ of developing country parties.
20 Biological Diversity, Art. 21: Climate Change, Art 11. For a review of these provisions, see P. Saunders, 286–288.
21 Biological Diversity, Art. 39; Climate Change, Art. 21. In both cases the parties are continuing to use the Global Environment Facility (GEF) as an interim measure, as was provided in the Conventions and since extended. The GEF was established in 1991 as a pilot project by the World Bank, and was adopted as a key funding mechanism at UNCEP, over the objections of many developing countries. It now operates under a Memorandum of Understanding involving the World Bank, the United Nations Environment Programme (UNEP) and the United Nations Development Programme (UNDP), with a mandate covering the four focal areas of climate change, biological diversity, international waters and ozone depletion. Instrument for the Establishment of the Restructured Global Environment Facility (March 1994), reprinted in 33 ILM 1273. The Desertification Convention does not designate the GEF, but rather opts for creation of a Global Mechanism to be created by the first Conference of Parties, which has not yet taken place.
22 See, e.g., the meetings held Feb. 27-March 4,1996 by the Subsidiary Body on Scientific and Technological Advice and the Subsidiary Body for Implementation for the Climate Change Convention. In addition to disagreements over scientific advice and financial flows, there were difficulties both with the extent of technology transfer and with research priorities, 12/26 Earth Neg. Bull. (1996).
23 The overall impression of the UNCED financial provisions is that the parties never agreed, but wished to reach a conclusion in the hope things could be worked out later. See R. Ricupero, Chronicle of a Negotiation: The Financial Chapter of Agenda 21 at The Earth Summit 4 Col. J. Int'l Env. L. & Pol'y. 82 (1992).
24 As in the replenishment of the GEF in 1994 to the amount of just over $2 billion.
25 This is evidenced by the continuing wrangling over financial mechanisms and funding levels at the meetings associated with implementation of Biological Diversity (both the Intergovernmental Committee and the Conference of the Parties) and Climate Change (Intergovernmental Negotiating Committee). See accounts at Earth Neg. Bull.: 9/17 (1994); 12/11 (1995).
26 The most recent meetings of the CSD Ad Hoc Open-Ended Working Group on Finance and Production Consumption, held March 4–8, 1996 in New York, saw “familiar calls from the South to respect previous commitments to ODA [Official Development Assistance] levels and from the North to create domestic conditions that will facilitate private financial flows,“ 5/45 Earth Neg. Bull. (1996) (on-line version).
27 Compare the $2 billion figure with the estimates of Agenda 21 implementation costs made by Maurice Strong shortly after Rio: $625 billion per year, with an optimistic $500 billion to come from developing countries via “redeployment of their own resources“ and $55 billion from existing ODA. M. Strong, Beyond Rio: Prospects and Portents, 4 Col. J. Int'l. Env. L. & Pol'y. 21, 74 (1992).
28 The matrix included “external resources; the international policy environment; national policy reforms; and innovative instruments“: 5/28 Earth Neg. Bull. (1995) (on-line version).