Environmental law bridges policies and actions to achieve goals for the protection of the environment and sustainable development, providing a structure to support systems of environmental governance. As emphasized by the Malmö Ministerial Declaration, the evolving framework of international environmental law and the development of national law provide a sound basis for addressing the major environmental threats of the twenty-first century. The process of developing environmental law also presents an opportunity for strengthening international cooperation and solidarity to face the common challenges ahead. While Governments are primarily responsible for taking legal and related measures to address environmental protection and sustainable development, international organizations have an important role to play in the development of environmental law.
General role of UNEP
The United Nations Environment Programme (UNEP) is the principal United Nations body in the field of the environment. The role of UNEP is to be the leading global environmental authority that sets the global environmental agenda, that promotes the coherent implementation of the environmental dimension of sustainable development within the United Nations system and that serves as an authoritative advocate for the global environment.
UNEP assists Governments and the international community in general to identify environmental problems of regional or global significance, and to build and disseminate the knowledge base concerning the identified problems. UNEP facilitates building international consensus on measures to address such problems, and promotes the implementation of such measures through the promotion of international cooperation, provision of assistance to Governments or training and awareness-raising among various stake-holders. UNEP undertakes these tasks in partnership with Governments, other United Nations bodies and specialized agencies, as well as other intergovernmental and non-governmental organizations.
Development of international environmental law in UNEP
The development of international environmental law has been one of the key areas of UNEP's activities, since international environmental law is to catalyze international action for achieving environmental goals in countries by their collective commitment and action, which is also a major function of UNEP.
The role of UNEP in the development of international environmental law has been repeatedly emphasized at various international fora, including the Governing Council of UNEP and the United Nations General Assembly. Agenda 21, in Chapter 38, states that the priority areas on which UNEP should concentrate include the further development of international environmental law, in particular conventions and guidelines, promotion of its implementation, and coordinating functions arising from an increasing number of international legal agreements. The nineteenth special session of the General Assembly held in June 1997, in its resolution S-19/2 (Programme for the Further Implementation of Agenda 21), reiterated this function for UNEP.
Since its establishment in 1972 throughout the 1970s, UNEP had already been active in the development of environmental law, such as the development of regional seas conventions. However, its involvement in the work of environmental law had been determined and carried out on an ad hoc basis. More systematic approach was needed for Governments and UNEP to address the subject from long-term perspectives with clearly defined benchmarks.
In 1981, a group of senior government officials expert in environmental law representing Governments from around the world met in Montevideo, and developed a long-term, strategic guidance for UNEP in the field of environmental law. It was adopted by the Governing Council of UNEP in 1982 and became a UNEP long-term programme (the Montevideo Programme for the Development and Periodic Review of Environmental Law). During the 1980s and 1990s, the Programme and its successor, the Programme for the 1990s (Montevideo Programme II adopted by the Governing Council in 1993) provided the basis for UNEP's action aiming at progressive development of environmental law.
In February 2001, the twenty-first session of the Governing Council adopted the Programme for the first-decade of the twenty-first century (Montevideo Programme III) with a view to further strengthening its activities in the field of environmental law. This Programme has a particular focus on enhancing the effectiveness of environmental law, addressing the following areas:
· Implementation, compliance and enforcement;
· Prevention and mitigation of environmental damage;
· Avoidance and settlement of international environmental disputes;
· Strengthening and development of international environmental law;
· Harmonization and coordination;
· Public participation and access to information;
· Information technology; and
· Innovative approaches to environmental law.
The Montevideo Programme III address also sectoral issues for conservation and management of the environment. They are:
· Freshwater resources;
· Coastal and marine ecosystems;
· Biological diversity;
· Pollution prevention and control;
· Production and consumption patterns;
· Environmental emergencies and natural disasters.
In addition, the Programme covers the related fields, including:
· Security and the environment;
· Military activities and the environment.
The Montevideo Programme III is being implemented in line with the overall UNEP Programme of Work as approved by the Governing Council.
Global and regional conventions and protocols
Under the Montevideo Programme, a number of global environmental conventions have been developed under UNEP's auspices. These include the 1985 Vienna Convention for the Protection of the Ozone Layer, the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, the 1992 Convention on Biological Diversity, the 1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, and the 2001 Stockholm Convention on Persistent Organic Pollutants.
At the regional level, UNEP has facilitated the development of regional seas conventions and protocols since the mid 1970s, including the conventions and protocols for the Mediterranean, the Gulf, the Red Sea, West and East African coastal zones, the Caribbean, the South Pacific, the South-east Pacific and the Black Sea. Those conventions and protocols are supplemented by related action plans. Actions plans have been developed also for the regions where legally binding instruments are yet to be developed, including East and South Asian seas and the Northwest Pacific. The development of regional seas agreements and related action plans continues. UNEP currently assists the Governments of Central East Pacific region to develop a regional sea convention.
In addition, UNEP assisted Governments in the development of regional environmental conventions, such as the 1987 Agreement on the Action Plan for the Environmentally Sound Management of the Common Zambezi River System and the 1994 Lusaka Agreement on Co-operative Enforcement Operations Directed at Illegal Trade in Wild Fauna and Flora. UNEP's assistance is currently being provided to States in the Caspian Sea region to develop a Convention on the Caspian environment. UNEP has been providing similar assistance to ASEAN member States to develop the ASEAN Agreement on Transboundary Haze Pollution, which will be adopted by ASEAN Ministers later this year.
Furthermore, UNEP has facilitated the development of other global and regional conventions by providing decision-makers of countries with environmental assessment and information on significant environmental issues and coordinated international actions that led to the development of such instruments. Examples of such UNEP's involvement included the 1992 United Nations Framework Convention on Climate Change (through the Intergovernmental Panel on Climate Change, organized jointly by UNEP and the World Meteorological Organization) and the 1994 United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, particularly in Africa (through UNEP's activities to combat desertification). More recently, UNEP provided substantive support to the parties concerned to develop the 1999 Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal and the 2000 Cartagena Protocol on Biosafety.
In order to fill gaps in the areas where no binding instruments has been developed, UNEP has promoted the development of non-binding international legal instruments which are designed to urge Governments and other parties to undertake actions to protect the environment on a voluntary basis. Some of them provided the basis for the development of legally binding instruments on the respective subjects. Those include guidelines and principles for Governments in the field of shared natural resources (1978), weather modifications (1980), offshore mining and drilling (1982), information exchange on hazardous chemicals in international trade (1984, 1987 and 1989), marine pollution from land-based activities (1987), management of hazardous chemicals (1987) and environmental impact assessment (1987). More recent instruments include the Code of Ethics on the International Trade in Chemicals (1994) and the International Technical Guidelines for Safety in Biotechnology (1995). The Global Programme of Action for the Protection of Marine Environment from Land-based Activities (1995) complements the provisions on this subject set forth in the 1982 United Nations Convention on the Law of the Sea.
In order for an international environmental agreement to achieve defined environmental goals effectively, the agreement should set forth adequate mechanisms for its implementation. UNEP organizes an open negotiating process and it is a means for ensuring such adequacy of the contents of the agreement. After the adoption and entry into force of the agreement, it becomes a responsibility of the parties to the agreement to ensure its adequacy.
Implementation of international environmental law
The Montevideo Programme, among its programme areas, addresses the need for strengthening the capacity of States, in particular developing countries and countries with economies in transition, to take legal and institutional measures to protect their environment, to achieve sustainable development and to participate effectively in the initiation, negotiation and implementation of international legal instruments in the field of the environment.
For this purpose, UNEP, in cooperation with relevant international organizations, assists States to establish and/or improve institutional and administrative machinery for the development and enforcement of laws and regulations related to the environment and to sustainable development. Assistance, on request, was desired of UNEP in 1975 by the United Nations General Assembly in resolution 3436 (XXX). Assistance is also provided to States in developing and strengthening relevant national institutions. Recipients of such UNEP services included countries in Africa, Asia and the Pacific, Eastern and Central Europe, and Latin America and the Caribbean. In the past decade, more than 100 countries received UNEP's legal advisory services to enhance their national environmental legislation and related institutions.
Coherent and cost-effective schemes for implementing international environmental agreements would require coordination at various levels and the involvement of all stake-holders. At the national level, currently there is the need for broadening the range of actors who share the tasks for environmental protection and management. This might require enhancement of participation by various actors in environmental decision-making, and for that purpose, improved access to environmental information might be also required. At the international level, there is the compelling need for enhancing coherence and efficiency in the activities carried out by various entities through the improved coordination of international action.
Also, the development of appropriate technical infrastructures and introduction of adequate technologies are important elements for enabling countries to implement international environmental agreements. UNEP has been providing advice on policy options and raising awareness on emerging issues. For instance, in the case of the ozone layer protection, those include further promotion of cleaner production, provision of clearing-house functions on ozone depleting substances, preparation of policy guidance materials for developing countries concerning the phase-out of ozone-depleting substances and concerning sustainable tourism. Relevant technical assistance and training activities are also provided by in-work attachments as well as by organizing relevant seminars and workshops on environmental law for countries in regions.
Information on environmental law
UNEP undertakes action to improve arrangements for the receipt, processing and dissemination of information on environmental legislation. In this regard, UNEP and IUCN have been developing a Joint Environmental Law Information System (ECOLEX) to provide access to such legal materials through Internet-based database (http://www.ecolex.org). Many legal and technical publications have provided useful information to Governments, and thus facilitated their work in identifying relevant instruments and in promoting harmonization of laws through compendia of legislation.
Enforcement and compliance
In focusing on the effective implementation of international environmental agreements, a key factor is to establish efficient and practical reporting systems. With the increasing reporting obligations under different international agreements, due consideration needs to be given to the harmonization and simplification of reporting procedures. The special situation and needs of developing countries should be considered. It is important to identify the real causes of non-compliance and provide the maximum possible assistance, especially to developing countries, to facilitate compliance.
At the global level, a number of conventions set out provisions that allow the respective Parties to develop international mechanisms designed to enhance compliance with the relevant obligations under those conventions (e.g. the Montreal Protocol on Substances that Deplete the Ozone Layer).
The 1994 Lusaka Agreement on Co-operative Enforcement Operations Directed at Illegal Trade in Wild Fauna and Flora, addressed to African countries, is an example of regional cooperation mechanisms related to environmental enforcement. Its objective is to reduce and ultimately eliminate illegal trade in wild fauna and flora. Under the Agreement, a permanent Task Force has been established to facilitate cooperative activities among designated national enforcement offices in carrying out investigations pertaining to illegal trade. UNEP assists the Parties to this Agreement in developing relevant expertise by organizing training workshops and other capacity building activities.
While enforcement of and compliance with international environmental agreements are primarily national issue for each party, UNEP plans to strengthen its activities in assisting Governments of developing countries in this area. A Unit dedicated for this purpose has been established (Enforcement and Compliance Unit). UNEP has organized several international meetings for enforcement and other government officials, focusing on the question of illegal trade and other environmental crime in contravention of the obligations under relevant agreements. In follow up to the outcome of those meetings, UNEP, with the assistance of a group of government experts, is developing a set of guidelines designed to promote compliance with and enforcement of multilateral environmental agreements, as mandated by the Governing Council.
In more general term, raising awareness and building capacities of countries in the field of environment law help them enforce and comply with the obligations of international environment agreements. UNEP, with the support of donor Governments, continues conducting such legal capacity building activities for developing countries in all regions.
The body of environmental law has been developed significantly during the past three decades since the 1972 United Nations Conference on Human Environment. As emphasized in the Malmö Ministerial Declaration, the international community now faces challenges in ensuring that the commitments contained in the existing environmental instruments are implemented. In the overall context of sustainable development, more integrated, holistic approaches are required to address the sources of environmental problems targeted by these instruments. Enhanced international cooperation would be further needed to empower developing countries for them to be able to undertake the commitment, with adequate resources and supporting infrastructure and technologies made available to them. Coherence among diversified environmental legal instruments is now called for. Implementation and enforcement of these instruments must be carried out at all levels.
An overall international institutional architecture for international environmental governance has been the subject of debate by Environmental Ministers of the world through the intergovernmental process instituted by the Governing Council of UNEP earlier this year. The outcome of the debate will be considered by the next special session of the Governing Council/Global Ministerial Environment Forum (Cartagena, Colombia, February 2002), and by the World Summit on Sustainable Development (Johannesburg, South Africa, September 2002). It is hoped that this process would result in a certain form of arrangements consolidating efforts of all parties to resolve the root causes of global environmental problems. To achieve this, there will be more demands to environmental law. UNEP is committed to assist Governments and the international community in meeting such increased demand in environmental law. UNEP's contribution to the progressive development of environmental law continues.