International Environmental Governance

Peter M. Haas, PeterM. Haas

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9780754625612
• eBook ISBN: 9781351562416
• Edition: 1
• Topic: History
• Subtopic: Environment & Energy Policy
• Index: History

International Environmental Governance reviews the contentious approaches to addressing global and transboundary environmental threats. The volume collects together the most influential and important literature on the major political approaches to dealing with these problems, their histories, major debates, and research frontiers. It is accompanied by a substantial introduction which reviews the evolution of the academic contribution to environmental governance, focusing on a wide array of international environmental problems.

Part I
History of Environmental Governance

[1]
METHODS TO EXPEDITE ENVIRONMENT PROTECTION: INTERNATIONAL ECOSTANDARDS

By Paolo Contini and Peter H. Sand*

INTRODUCTION

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.³

Together with new programmatic instruments, like the Draft Universal Declaration on the Human Environment which is currently being prepared by a U.N. inter-governmental working group for submission to the Stockholm Conference,⁴ international conventions may indeed be a useful way of formulating certain basic principles of conduct in this comparatively new sector of international relations. It may be doubted, however, whether traditional treaty techniques will prove to be suitable for meeting the technical requirements of effective “ecomanagement”⁵ on the global or regional scale, once international action passes from the declaratory to the operational stage. Environmental problems characteristically require expeditious and flexible solutions, subject to current up-dating and amendments to meet rapidly changing situations and scientific-technological progress. In contrast, the classical procedures of multilateral treaty-making, treaty acceptance and treaty amendment are notoriously slow and cumbersome.⁶

If international standards for environmental quality are to be set by diplomatic negotiations, the technical components of those standards may well be outdated by the time agreement is reached, and even more so by the time the agreement enters into force. As the 1969 UNITAR Study on Wider Acceptance of Multilateral Treaties convincingly shows, there are definite patterns in the “tempo of acceptance” of treaties, which postpone the date of effectiveness to somewhere between two and twelve years after formal agreement has been reached.⁷ Professor Ago’s report to the International Law Commission in 1968 underlined the fact that delayed and fragmentary acceptance can jeopardize or even paralyze international regulation.⁸ The same difficulties beset the traditional methods of treaty revision, with added problems where there is a coexistence of divergent subsequent treaty versions as a result of amendments ratified by some, but not all, original parties to a treaty. The effectiveness of treaties in our specific subject area is further reduced and delayed by the fact that international rules for environment protection can rarely be self-executing and normally require implementing national action in order to become enforceable.

It is true, of course, that most of these handicaps have long been known to exist, and that in spite of them the area covered by conventional international law has steadily expanded. It is also true, however, that these shortcomings of the treaty method represent, in the words of Wilfred Jenks, “the heritage of the past and not the pattern of the future.”⁹ What will be crucial for future environmental management is the capacity of a system of norms to respond adequately to a constant change of situations, including crisis situations, and to accelerating technological progress. If the classical treaty, that “sadly overworked instrument,”¹⁰ lacks this capacity, it becomes necessary to explore alternative methods.¹¹

I. THE EMERGING CONCEPT OF INTERNATIONAL “STANDARDS”

One distinctive element of most contemporary action plans for international environment protection—and notably of those formulated by scientists—is the call for common international standards, by which environmental degradation is to be monitored and controlled.¹² Technically, the term is understood by reference to existing or proposed national standards (such as air quality standards, water quality standards, food quality standards, effluent standards, noise emission standards, toxicity or degradability standards),¹³ which are thus simply projected onto an international scale, presenting various national models as “possible lessons for international regulation of environmental quality.”¹⁴ Yet technical standards have long (indeed, since the 19th century) been a part of numerous multilateral agreements ranging from telecommunications, aviation, health and meteorology to marine resources and wildlife conservation. Under various names and titles, international “standards” or “practices”—their quasi-binding force often vaguely and misleadingly couched in terms of “recommendations” or “international legislation”—have emerged as a distinct type of norms, characterized by a high degree of flexibility and adaptability in line with their predominantly technical-operational objectives. Curiously enough, although international technical standard-setting has thus become a major function of many inter-governmental and non-governmental organizations,¹⁵ it seems to have operated below the lawyers’ level of visibility until quite recently,¹⁶ perhaps because of the prevailing impression that it “concerned matters primarily of a very technical nature.”¹⁷

The remarks which follow are prolegomena, calling for further research into the actual and potential rôle of international standards as a dynamic normative instrument, unfettered by some of the formal limitations of traditional treaty law. After illustrating current international practice with technical standards, their machinery, acceptance and implementation, we shall make some very tentative recommendations regarding their use for global or regional environment protection, in the form of what we propose to call “international ecostandards.”

II. MACHINERY FOR STANDARD-SETTING

It is now common international practice to separate technical standards from basic treaty provisions. The basic treaty (which may be the constitutional instrument of an international organization or a special convention) lays down the permanent institutional framework and procedure for the elaboration, adoption, revision, implementation and supervision of standards. The technical standards (which are usually appended to the basic treaty in the form of annexes or schedules) provide detailed rules and codes of practice, drafted by technicians or scientists rather than diplomats or lawyers, and periodically revised by a designated international body. While the basic treaty hardly differs from traditional international conventions, insofar as it is subject to diplomatic adoption and ratification by participating states, the technical standards as subsequently adopted and revised do not require ratification and become effective “automatically,” i.e., upon mere notification of their adoption in conformity with procedures laid down in the basic treaty. It is this prearranged automatic effectiveness, though frequently mitigated by a special opt-out procedure as described below, which distinguishes them from ordinary treaty provisions. Though originally conceived as a simplified method of treaty-amendment only, recognized as permissible under Article 40 of the Vienna Convention on the Law of Treaties,¹⁸ the method gradually evolved to include also the setting of new standards on subjects not previously regulated in the annex to the basic treaty.¹⁹ This advanced technique of standard-setting may indeed be considered as a genuine innovation in international lawmaking.

The idea of divorcing the adjustable “technical part” from the more permanent “diplomatic part” of an international treaty actually goes back to one of the oldest international organizations, viz. the International Telecommunications Union (ITU). At its St. Petersburg Conference in 1875, ITU decided to put certain international technical provisions into “Regulations” which could be revised periodically by administrative experts rather than by plenipotentiary delegates and “accepted” by the telegraph administrations of the contracting states rather than ratified by the usual diplomatic process.²⁰ It is probable that this novel procedure drew some inspiration from earlier regulatory practices of the European river navigation commissions²¹ and of the Universal Postal Union (UPU).²²

As a way to by-pass the dreaded diplomatic circuit, the method offered obvious attractions and practical advantages for technical rules and standards in need of continuous updating by experts. It has been followed by an ever growing number of other international agreements, starting with the “technical regulations” contained in the annexes to the 1919 Paris Convention on the Regulation of Air Navigation,²³ which subsequently became the model for the “international standards” adopted by the International Civil Aviation Organization (ICAO) as technical annexes to the 1944 Chicago Convention,²⁴ as well as for the simplified amendment procedure under the 1933 International Sanitary Convention for Aerial Navigation.²⁵ The latter in turn became a model for the “international sanitary regulations” (now “international health regulations”) adopted under the 1946 Constitution of the World Health Organization (WHO)²⁶ and for the technical schedules to the 1961 Single Convention on Narcotic Drugs.²⁷ Also modeled after the ITU/ICAO pattern are the “standard meteorological practices and procedures” adopted as technical regulations under the 1947 Convention of the World Meteorological Organization (WMO),²⁸ the “standards” under the 1965 Facilitation Convention of the 1948 International Maritime Consultative Organization (IMCO),²⁹ and a recent proposal for new international machinery submitted by the International Air Transport Association (IATA).³⁰ Similarly, the system of technical annexes to the 1924 Bern Conventions concerning the Transport of Goods by Rail (CIM) and concerning the Transport of Passengers and Luggage by Rail (CIV)³¹ set the pattern for the subsequent 1932, 1952 and 1961 Bern Conventions,³² as well as for the 1949 Geneva Convention on Road Traffic³³ and the 1957 European Agreement Concerning the International Carriage of Dangerous Goods by Road.³⁴ The international labor standards adopted under the 1919 Constitution of the International Labor Organization (ILO), though traditionally in the form of conventions or recommendations, also use technical schedules which are subject to simplified amendment procedures, e.g., under the 1964 Convention Concerning Benefits in the Case of Employment Injury.³⁵ Further parallels may be found in the international food standards of the Codex Alimentarius elaborated jointly since 1963 by WHO and the Food and Agriculture Organization of the United Nations (FAO),³⁶ and in the Ius Commune system recently proposed in the United Nat...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• Part I History of Environmental Governance
• Part II Nature of Environmental Governance Problem
• Part III Realism and Power Politics
• Part IV Institutional Bargaining
• Part V Scientific Governance
• Part VI Private Governance
• Part VII Civil Society
• Part VIII Networked Governance
• Name Index