Greening International Institutions

Jacob Werksman

• Publisher: Routledge
• Year: 2014
• Print ISBN: 9781138975514
• eBook ISBN: 9781134054695
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Urban Planning & Landscaping
• Index: Politics & International Relations

First Published in 2009. This title contains a diverse collection of pieces from which the reader can draw an understanding of the shape and function of the institutions discussed within, the scope of their activities, and the niche they occupy in the larger system. Werksman reveals a pattern that organizations grow and contract erratically and organically in response to competing demands, concerns and resources. This volume aims to raise questions as to whether the demands of sustainable development require a more fundamental push against the inertia of institutional culture.

PART I

Policy-making

1 THE UNITED NATIONS GENERAL ASSEMBLY
AND THE SECURITY COUNCIL

Donald Fitzpatrick

INTRODUCTION

When the United Nations (UN) Charter was drafted 50 years ago, the protection of the environment was not an issue of global concern. Thus the Charter does not expressly give the organization competence over environmental matters. Despite the absence of a specific mandate, the very broad nature of the purposes of the UN, as expressed in Article 1 of the Charter, has allowed it to develop its environmental function within the context of its economic, social and humanitarian responsibilities.¹ This chapter discusses the role of two of the six principal organs of the UN – the General Assembly and the Security Council.²

While the General Assembly has a long history of involvement in environmental matters, the Security Council’s only environmental intervention to date has been to address the pollution that occurred during the Gulf War. Because of this difference, the two parts of this chapter follow dissimilar styles. The General Assembly section is largely historical, analysing some of its more important environmental initiatives, whereas the discussion of the Security Council is exploratory, examining the issues raised by the prospect of an expanding environmental role for the Council.

GREENING THE GENERAL ASSEMBLY

Environmental Roles of the United Nations General Assembly

The General Assembly plays an important role in the international environmental sphere in a number of ways:

Policy/Consensus Building

The General Assembly serves as a universal forum for environmental policymaking, giving states an opportunity to exchange ideas and to build an international consensus on controversial issues. Its resolutions are expressions of world opinion and, as such, they can have a significant political and moral influence. This was illustrated by the ‘consciousness raising’ influence of the General Assembly prior to and during the two major global environmental initiatives, the 1972 UN Conference on the Human Environment and the 1992 UN Conference on the Environment and Development (UNCED).³ Agenda 21,⁴ the global ‘action plan’ adopted at UNCED, has identified the General Assembly as the ‘principal policy-making and appraisal organ on UNCED follow-up’.

Development of International Law

In addition to its policy role, the General Assembly, through Resolutions adopted over the last 20 years, has made a contribution to the development of international law. While not themselves legally binding, General Assembly resolutions can influence the law-making process either through their being adopted into binding international treaties or through serving as a basis for the development of customary law, thereby contributing directly or indirectly to the development of substantive legal obligations.⁵

Creating Other UN Bodies

The power granted to the General Assembly to ‘establish such subsidiary organs as it deems necessary for the performance of its functions’⁶ has enabled it to create a range of UN specialized agencies, programmes and committees. Bodies with environmental functions that were created by the General Assembly include the United Nations Environment Programme (UNEP);⁷ the United Nations Development Programme (UNDP);⁸ and more recently the Commission on Sustainable Development (CSD).⁹

Convening Global Conferences

From as early as 1954, when it decided to convene the Conference on the Conservation of the Living Resources of the Sea, the General Assembly has been facilitating global conferences for the negotiation of binding conventions, hortatory ministerial declarations or illustrative programmes of action to protect different aspects of the global environment. Both the Stockholm Conference on the Human Environment and the United Nations Conference on Environment and Development (UNCED) were convened by the General Assembly. In the follow-up to UNCED, the General Assembly has a central role not only in policy appraisal, but also in managing the international negotiating process. Since UNCED, the arrangements for the UN Conferences on Climate Change, Desertification, Small Island Developing States, Straddling Fish Stocks and Highly Migratory Fish Stocks have all been facilitated by General Assembly resolutions. Post-UNCED, procedural General Assembly resolutions determining the arrangements for global environmental conferences under UN auspices have outnumbered the number of resolutions that are concerned with substantive aspects of environmental law and policy. ¹⁰

Requesting Advisory Opinions

Article 96 of the UN Charter provides that the General Assembly may request the International Court of Justice to give an advisory opinion on any legal question. In 1994 the General Assembly requested an opinion on the following question: ‘[i]s the threat or use of nuclear weapons in any circumstance permitted under international law?’.¹¹

Before discussing the General Assembly’s influence upon environmental law and policy, this chapter will briefly outline the structure and general functions of the General Assembly, and the status of its resolutions.

General Assembly Structure

Each of the member states of the United Nations is represented in the General Assembly (UNGA) with equal voting power irrespective of their size, population or power.¹² This universal and democratic nature lends great weight to the General Assembly resolutions which can be seen as representative of world opinion. According to the Charter, decisions are to be taken on a simple majority basis, with important questions, such as the election of non-permanent members of the Security Council, requiring a two-thirds majority.¹³ However, in practice most resolutions are now adopted without vote on a consensus basis.

The General Assembly meets in regular annual sessions which begin on the third Tuesday of September and run through to Christmas. Special sessions can be convened at the request of the Security Council or of a majority of the members of the United Nations. The General Assembly has been requested to convene a special session to review Agenda 21 and its implementation before the end of 1997.¹⁴

The bulk of the General Assembly’s work on environmental matters is carried out in the Second (Economic and Financial) Committee, where draft resolutions are agreed upon before being put to the plenary session for adoption. The Second Committee also acts as the final reviewing body for the activities of several relevant UN bodies including UNEP, UNDP, CSD and UNCTAD (United Nations Commission on Trade and Development). The Sixth (Legal) Committee will occasionally look at issues of international environmental law – for example in recent sessions it has debated the legal protection of the environment in wartime.¹⁵ Proposals have been made that a Committee could be created which would have environmental matters as its prime responsibility,¹⁶ or that the now largely redundant Fourth Committee could be transformed into an Environment Committee. However, others question whether the environmental workload of the General Assembly is sufficiently large to warrant such a reform.

The Question of the Legal Effect of Resolutions of the General Assembly

One measure of the General Assembly’s role in protecting the environment is the extent to which its edicts make law that compels changes in the way states behave.

The UN Charter granted a wide mandate to the General Assembly to initiate studies, discuss and make recommendations on matters within the scope of the Charter, or relating to the powers and functions of other UN organs.¹⁷ Article 13(1) provides that the General Assembly shall make recommendations for the purpose of ‘promoting international cooperation in the political field and encouraging the progressive development of international law’.

The law-making capabilities of General Assembly resolutions is a subject of perennial debate in international law and it is beyond the scope of this chapter to discuss this problem in any depth.¹⁸ In contrast to the Security Council, resolutions of the General Assembly are not legally binding. While there are certain Charter provisions which expressly authorize the General Assembly to take decisions that have legal effects (these include establishing subsidiary organs;¹⁹ determining the budget of the Organization and its apportionment among the Members, ²⁰ admission of new members²¹ and the election of nonpermanent members of the Security Council),²² in general the formal status of General Assembly resolutions is that they are recommendatory. However, the fact that resolutions are not legally binding does not prevent them from having an influence on the development of law and state practice. Resolutions of the General Assembly can have an effect on international law either by serving as the basis for the development of customary law (state practice accepted as law), or through the subsequent incorporation of the principles contained in the resolution into a legally binding instrument. The influence of General Assembly resolutions on the customary law-making process is particularly important. Resolutions have sought to codify, by declaration, existing customary law²³ to crystallize emerging law²⁴ or to develop international law. ²⁵

Examples of General Assembly Resolutions Influencing International Environmental Law and Policy

The Common Heritage of Mankind

There are numerous General Assembly resolutions that subsequently have been incorporated into international treaties. For example, the 1948 Universal Declaration of Human Rights led to the two international human rights covenants.²⁶ In relation to the environment, several General Assembly reso-lutions on legal principles have served as the catalyst for the development of international environmental law. One of the best known examples is the concept of the ‘common heritage of mankind’ which first appeared in 1967 in a draft resolution sponsored by Malta. The aim of the proposal was

to provide a solid basis for future worldwide cooperation … through the acceptance by the international community of a new principle of international law … that the seabed and ocean floor and their subsoil have a special status as a common heritage of mankind and as such should be reserved exclusively for peaceful purposes and administered by an international authority for the benefit of all peoples.²⁷

The principle was incorporated in Resolution 2749²⁸ which declared that The sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction … are the common heritage of mankind’. Subsequently the common heritage principle was incorporated in the United Nations Convention on Law of the Sea 1982 and in the Moon Treaty of 1979.²⁹ Variations on this principle have helped to shape the international community’s response to a range of environmental issues concerning areas beyond national jurisdiction, or of legitimate global concern. The principle has been re-expressed in the designation of climate change³⁰ and biodiversity³¹ as the common concern of humankind. While the Marxist character of the principle has mellowed, even in the context of the deep sea-bed,³² without doubt it has laid the groundwork for the acceptance of a ‘common but differentiated responsibility’ shared by all states in responding to environmental threats of a global character.³³

The Moratorium on Large-scale Pelagic Driftnet Fishing and Other Resolutions on Marine Living Resources

One area in which the General Assembly has been very active is in driftnet fishing regulation. This destructive fishing technique threatens not only to deplete the targeted species – ie tuna and swordfish – but also the by-catch – ie the other marine species such as dolphins, sharks and whales, which are caught incidentally in the ‘walls of death’ and subsequently discarded. In Resolution 44/225 on Large-Scale Pelagic Driftnet Fishing and its Impact on the Living Marine Resources of the World’s Oceans and Seas, the General Assembly called for a global moratorium on driftnet fishing by 30 June 1992. The following year the General Assembly emphasized the importance of the international community’s implementation of Resolution 44/225 and requested UN organizations as well as the various global, regional and sub-regional fishery organizations, to ‘bear in mind’ the goals of Resolution 44/225.³⁴

In 1991 the General Assembly again called for full implementation of the moratorium by the end of 1992. Unusually, the Resolution went beyond merely calling for a ban and laid down interim measures to facilitate implementation. Under the Resolution there was to be no new driftnet fishing, and existing driftnet fishing was to be reduced by 50 per cent by 30 June 1992, and ultimately by 100 per cent by 31 December 1992.³⁵

Even though the resolution is not legally binding, the three major driftnetting nations, Japan, Korea and Taiwan, all announced that they would respect the moratorium.³⁶ While this behaviour raises hopes that we are witnessing the emergence of a new norm of customary international law prohibiting large-scale pelagic driftnet fishing, other fishing nations continue to resist the mora-torium.³⁷ Greenpeace has compiled evidence of continued high seas driftnet fishing by some 600 Italian vessels in the Mediterranean, and by 100 French and UK vessels in the Northeast Atlantic.³⁸

In response to the reports of EU non-compliance, the General Assembly adopted another resolution in December 1994 in which it expressed ‘further serious concern that … there are reports of continuing conduct and activities inconsistent with the terms of the moratorium’ and urged ‘authorities of members of the international community to take greater enforcement responsibility to ensure full compliance’ and ‘to impose appropriate sanctions consistent with international law against acts contrary to the terms’ of the moratorium.³⁹ Despite the pressure exerted by the UN, Greenpeace and other organizations, the European Union fisheries ministers did not support a German proposal to ban driftnets.⁴⁰

Climate Change

The objectives of the early General Assembly resolutions on climate change were a combination of consciousness raising and coordinating the activities of the various international organizations. Resolution 43/53, entitled ‘Protection of the global climate for present and future generations of mankind’ recognized thatclimate change ‘is a common concern of mankind’, a phrase of uncertain legal effect,⁴¹ and urged governments and scientific institutions to treat climate change as a priority issue⁴² The...

Table of contents

• Cover
• Title page
• Copyright page
• Contents
• Acknowlegements
• List of Contributors
• Introduction
• Part I: Policy-making
• Part II: Trade
• Part III: Finance
• Part IV: Regional Institutions
• Part V: Avoiding and Settling Disputes
• Part VI: Environmental NGOs and International Institutions
• Notes and References
• Appendix 1: Agenda 21 (extract)
• Appendix 2: A Guide to International Institutions on the Internet
• Index