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Monitoring The UN > The UN and Sustainable Development

Legal Instruments and Mechanisms for Sustainable Development

The Challenge

International law is a tricky business. At the heart of the problem is the fact that those empowered to make international law and those bound to comply with the terms and conditions of international laws are, by and large, sovereign states. Ironically, modern-day international law was born at the Treaty of Westphalia in 1648, where the powers of Europe arrived at a means to conclude the Thirty Years War. The war had erupted initially from the supranational claims to authority by the Church of Rome in lands where Protestant rulers and populations had sprung up. The central tenet which brought the war to a close was that each country was imbued with certain sovereign prerogatives which were unassailable by outside forces; that no state had the right to meddle in the domestic affairs of another. In effect, the Treaty stated that countries could not be bound to the dictates of international institutions which impinged on the domestic sphere.

Today, however, sovereign states have come together to negotiate conventions, protocols, treaties and laws which do exactly that, by placing the power to administer, arbitrate and enforce international requirements, regulations and disputes in the hands of supranational bodies. The United Nations is an example par excellance of just such an arrangement. Member states gather in committees and working groups to hammer out international agreements to address specific international issues which, to an ever-increasing extent, encroach upon the domestic policies of sovereign countries. Although the activities of the United Nations Security Council garner much of the headlines for international security activities which interfere with sovereignty through force of arms or sanction, legally, the UN has also been very active in areas of human rights, development and environmental protection.

In the field of sustainable development, the United Nations has identified eight protocols or conventions established under the auspices of the UN, which it feels further the goal of global sustainable development. These agreements, which have become part of the international law cannon, seek to either promote or prohibit certain activities by countries, businesses or individuals. Similar to provisions in domestic legal systems, international legal instruments and mechanisms in the area of sustainable development can be grouped as either positive (you must do…) or negative (you must not do…).

International law, to a much greater degree than national laws and legal systems, faces a serious credibility problem brought about by the difficulties of enforcement. Through international legal agreements, domestic legal authorities are charged with monitoring the activities of their citizens and businesses and prosecuting offenders. But when a sovereign state, or in a worst-case scenario, a group of states is found to be in violation, the issue of appropriate responses by the other parties is raised. Offending states can find themselves subject to sanctions or loss of financial/technical assistance, but for the most part, compliance rests on the perceived loss of prestige and good will in the community of nations. Compliance is, therefore, often based on an assessment of whether short-term actions will have a detrimental effect on long-term interests.

Another major problem facing international law in the field of sustainable development is cost. All conventions and protocols, either positive or negative, have real financial costs attached. National compliance enforcement programmes usually require the setting up of effective monitoring and enforcement frameworks, substantial changes in domestic production or resource management practices and extensive training and awareness programmes. In relatively prosperous and technologically advanced countries, these costs can often be borne with minimum discomfort. In least developed, developing and transitional states, costs associated with implementation and administration are often prohibitive. Furthermore, these states, especially in cases of environmental degradation, are the ones where action and/or compliance is most urgently needed. These factors go a long way to explaining why a common element in virtually all international legal instruments and mechanisms are provisions for financial and technical assistance from signatory countries in a position to render assistance to the less well off. This does, however, raise the real costs of participation and implementation for the wealthier states.

The challenge for the United Nations and member states pursuing the goal of sustainable global development through legal instruments and mechanisms is to negotiate and administer agreements which, to the greatest degree possible: make qualitative and quantitative advances towards social and economic development with appropriate environmental safeguards; respect the sovereign rights of states; set out practical monitoring and enforcement practices; and, afford states lacking financial and technical resources the opportunity to participate in and benefit from negotiated international agreements.

Recent UN Activities in the Area of Legal Instruments and Mechanisms for Sustainable Development

As mentioned earlier, there are eight legal instruments which the United Nations has identified as being part of the sustainable development corpus of international law. Since legal documents are, by their very nature, extreme in detail, what follows below is a brief sketch of the context of the instruments, and selected extracts which focus on their central principles and objectives. Those interested in viewing or downloading the full text of the agreements should follow the hyperlinks at the end of this section. Each instrument is administered by a Secretariat attached to either a UN specialized agency, autonomous organisation or programme.

The Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa

Desertification is the process by which the area of deserts expand, consuming more and more scarce land previously used as farmland or pasture. The 1977 UN Conference on Desertification (UNCOD) sought to address the growing problem, particularly in the areas immediately south, east and west of the Sahara Desert in northern Africa. Although a plan of action was adopted after the conference, by 1991 it was found that the process had actually accelerated since 1977. The issue was raised at the 1992 UN Conference on the Environment and Development (UNCED—the Earth Summit) in Rio and a new integrated approach was put forward. In late 1992, the UN struck an Intergovernmental Negotiating Committee to prepare a convention to combat desertification, to be presented by 1994. In June, 1994 the Convention was presented for signature and the fiftieth signature required for enactment came in December, 1996. To date, over one hundred countries have signed on as parties to the agreement.

Principles:

In order to achieve the objective of this Convention and to implement its provisions, the Parties shall be guided by the following:

  • The Parties should ensure that decisions on the design and implementation of programmes to combat desertification and/or mitigate the effects of drought are taken with the participation of populations and local communities and that an enabling environment is created at higher levels to facilitate action at national and local levels;
  • The Parties should, in a spirit of international solidarity and partnership, improve cooperation and coordination at subregional, regional and international levels, and better focus financial, human, organizational and technical resources where they are needed;
  • The Parties should develop, in a spirit of partnership, cooperation among all levels of government, communities, non-governmental organizations and landholders to establish a better understanding of the nature and value of land and scarce water resources in affected areas and to work towards their sustainable use; and
  • The Parties should take into full consideration the special needs and circumstances of affected developing country Parties, particularly the leastdeveloped among them.

General obligations :

1. The Parties shall implement their obligations under this Convention, individually or jointly, either through existing or prospective bilateral and multilateral arrangements or a combination thereof, as appropriate, emphasizing the need to coordinate efforts and develop a coherent long-term strategy at all levels.

2. In pursuing the objective of this Convention, the Parties shall:

  • Adopt an integrated approach addressing the physical, biological and socio-economic aspects of the processes of desertification and drought;
  • Give due attention, within the relevant international and regional bodies, to the situation of affected developing country Parties with regard to international trade, marketing arrangements and debt with a view to establishing an enabling international economic environment conducive to the promotion of sustainable development;
  • Integrate strategies for poverty eradication into efforts to combat desertification and mitigate the effects of drought;
  • Promote cooperation among affected country Parties in the fields of environmental protection and the conservation of land and water resources, as they relate to desertification and drought;
  • Strengthen subregional, regional and international cooperation;
  • Cooperate within relevant intergovernmental organizations;
  • Determine institutional mechanisms, if appropriate, keeping in mind the need to avoid duplication; and
  • Promote the use of existing bilateral and multilateral financial mechanisms and arrangements that mobilize and channel substantial
    financial resources to affected developing country Parties in combating desertification and mitigating the effects of drought.

3. Affected developing country Parties are eligible for assistance in the implementation of the Convention.1

UN Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol

Global warming is one of the most important and pressing environmental issues the world is facing. Causes of global warming—greenhouse gas emissions and ozone depletion—know no national boundaries. Emissions and substances generated in one area are whisked around the earth by the jet stream and affect all. In order to address the global warming trend identified in the 1980’s, a new body was required to study, monitor, stabilize and reduce the root causes of global climate change, namely greenhouse gas emissions. The framework accord was presented for signature at the UNCED in Rio de Janeiro from 4 to 14 June 1992, and thereafter, rested at the United Nations Headquarters, New York, from 20 June 1992 to 19 June 1993. By that date the Convention had received 166 signatures. The Convention entered into force on 21 March 1994. In December 1997, at the third Conference of UNFCCC parties in Kyoto, Japan, an additional protocol was added defining emission amounts and target dates for reaching benchmarks. That protocol requires the signatures comprised of 55 Parties to the Convention which accounted in total for at least 55 % of the total carbon dioxide emissions for 1990 from that group.

Objectives:

The ultimate objective of the Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.

Principles:

In their actions to achieve the objective of the Convention and to implement its provisions, the Parties shall be guided by the following:

  • The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.
  • The specific needs and special circumstances of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change, and of those Parties, especially developing country Parties, that would have to bear a disproportionate or abnormal burden under the Convention, should be given full consideration.
  • The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost. To achieve this, such policies and measures should take into account different socio-economic contexts, be comprehensive, cover all relevant sources, sinks and reservoirs of greenhouse gases and adaptation, and comprise all economic sectors. Efforts to address climate change may be carried out cooperatively by Parties.
  • The Parties have a right to, and should, promote sustainable development. Policies and measures to protect the climate system against human-induced change should be appropriate for the specific conditions of each Party and should be integrated with national development programmes, taking into account that economic development is essential for adopting measures to address climate change.
  • The Parties should cooperate to promote a supportive and open international economic system that would lead to sustainable economic growth and development in all Parties, particularly developing country Parties, thus enabling them better to address the problems of climate change. Measures taken to combat climate change, including unilateral ones, should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade.2

Convention on Biological Diversity

In 1992, world leaders recognized the need to protect what Charles Darwin had called, in his seminal 1859 work The Origin of Species, the "fecundity of nature". Through large-scale agri- business, genetic engineering and the loss of wildlife habitat, the earth was losing species of flora and fauna at an alarming rate. Signatories to the Convention on Biological Diversity formally committed themselves to protecting life forms valuable not only in terms of commercial value, but also for educational, scientific, cultural, recreational and aesthetic purposes. A central tenet of this instrument is that biological diversity is a requirement for the evolution and maintenance of life-sustaining systems of the biosphere which requires study, monitoring, constant vigilance and most importantly, international cooperation. The Convention received the necessary ratifications to enter into force in 1993.

Objectives:

The objectives of this Convention are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.

Principle:

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

Jurisdictional Scope:

Subject to the rights of other States, and except as otherwise expressly provided in this Convention, the provisions of this Convention apply, in relation to each Contracting Party:

  • In the case of components of biological diversity, in areas within the limits of its national jurisdiction; and
  • In the case of processes and activities, regardless of where their effects occur, carried out under its jurisdiction or control, within the area of its national jurisdiction or beyond the limits of national jurisdiction.

General Measures for Conservation and Sustainable Use:

Each Contracting Party shall, in accordance with its particular conditions and capabilities:

  • Develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity or adapt for this purpose existing strategies, plans or programmes which shall reflect the measures set out in this Convention relevant to the Contracting Party concerned; and
  • Integrate, as far as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies.

Cooperation:

Each Contracting Party shall, as far as possible and as appropriate, cooperate with other Contracting Parties, directly or, where appropriate, through competent international organizations, in respect of areas beyond national jurisdiction and on other matters of mutual interest, for the conservation and sustainable use of biological diversity.3

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal is a global environmental protection agreement designed to strictly regulate the transportation and disposal of toxic substances generated by human activity. It was drafted in response to annual global production of over 400 million tonnes of hazardous wastes deemed toxic, poisonous, explosive, corrosive, flammable, eco-toxic or infectious.4 The Convention was adopted in 1989 and received the signatures necessary to enter into force on 5 May 1992.

Principles:

Transboundary movements of hazardous wastes should be reduced to a minimum consistent with their environmentally sound management. Hazardous wastes should be treated and disposed of as close as possible to their source of generation. Hazardous waste generation should be reduced and minimized at source.

Objectives:

  • To reduce to a minimum and strictly control transboundary movements of hazardous wastes and other wastes subject to the Basel Convention and to dispose of them in an environmentally sound way.5
  • To dispose of the hazardous wastes and other wastes generated, as close as possible to their source of generation.
  • To minimize the generation of hazardous wastes both in terms of quantity and hazardousness.

Vienna Convention on the Protection of the Ozone Layer

In may ways, the Vienna Convention on the Protection of the Ozone Layer was the corner stone agreement for international environmental protection measures concerning atmosphere and climate change. With advances in science came the realization that certain substances used for refrigeration and pressurization, chlorofluorocarbons (CFC’s), when released into the atmosphere, attacked the ozone layer. This thin band of the earth’s atmosphere screens out much of the sun’s harmful ultraviolet (UV) radiation rays which are harmful to life. Free radical particles found in CFC’s cause the ozone molecules to disintegrate which decreases the ozone layer’s ability to screen out harmful UV rays. With CFC production and usage disseminating world-wide and resulting ozone layer damage having global consequences, the issue was ripe for multilateral measures. After agreement was reached in 1985, the Convention was amended and expanded upon through the adoption of the Montreal Protocol on Substances that Deplete the Ozone Layer which entered into force in 1987 and was further amended in 1990, 1992, 1995 and 1997.

Obligations/Objectives:

The Parties shall take appropriate measures in accordance with the provisions of this Convention and of those protocols in force to which they are party to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer. To this end the Parties shall, in accordance with the means at their disposal and their capabilities:

  • Co-operate by means of systematic observations, research and information exchange in order to better understand and assess the effects on human health and the environment from modification of the ozone layer;
  • Adopt appropriate legislative or administrative measures and co-operate in harmonizing appropriate policies to control, limit, reduce or prevent human activities under their jurisdiction or control should it be found that these activities have or are likely to have adverse effects resulting from modification or likely modification of the ozone layer;
  • Co-operate in the formulation of agreed measures, procedures and standards for the implementation of this Convention, with a view to the adoption of protocols and annexes;
  • Co-operate with competent international bodies to implement effectively this Convention and protocols to which they are party.6

Convention on the Conservation of Migratory Species of Wild Animals (The Bonn Convention)

The protection of wild migratory species of animals is a venture that, to be effective, must incorporate many international players. Animals do not respect arbitrary political boundaries and wildlife habitats often span several different countries. The Bonn Convention on Migratory Species of Wild Animals seeks to provide a framework for countries to use in building species and habitat protection partnership agreements concerning migratory wildlife either on land, in the sea or in the air. The Convention was agreed to in principle in 1975 but only came into effect in 1983, after having received the stipulated number of signatory countries.

Principles:

The Parties acknowledge the importance of migratory species being conserved and of Range States agreeing to take action to this end whenever possible and appropriate, paying special attention to migratory species the conservation status of which is unfavourable, and taking individually or in co-operation appropriate and necessary steps to conserve such species and their habitat. The Parties also acknowledge the need to take action to avoid any migratory species becoming endangered.

Objectives/Guidelines:

  • The object of each Agreement shall be to restore the migratory species concerned to a favourable conservation status or to maintain it in such a status. Each Agreement should deal with those aspects of the conservation and management of the migratory species concerned which serve to achieve that object.
  • Each Agreement should cover the whole of the range of the migratory species concerned and should be open to accession by all Range States of that species, whether or not they are Parties to this Convention.
  • An Agreement should, wherever possible, deal with more than one migratory species.

Each Agreement should:

  • Identify the migratory species covered;
  • Describe the range and migration route of the migratory species;
  • Provide for each Party to designate its national authority concerned with the implementation of the Agreement.
  • Establish, if necessary, appropriate machinery to assist in carrying out the aims of the Agreement, to monitor its effectiveness, and to prepare reports for the Conference of the Parties;
  • Provide for procedures for the settlement of disputes between Parties to the Agreement; and
  • At a minimum, prohibit, in relation to a migratory species of the Order Cetacea, any taking that is not permitted for that migratory species under any other multilateral Agreement and provide for accession to the Agreement by States that are not Range States of that migratory species.
  • Where appropriate and feasible, each Agreement should provide for but not be limited to: periodic reviews; co-ordination of conservation/management plans; research activities; exchanges of information; maintenance of suitable habitats; and, public awareness/education programmes.7

Convention on the International Trade in Endangered Species of Wild Fauna and Flora

Known as CITES, the Convention on International Trade in Endangered Species of Wild Fauna and Flora, was agreed upon in 1973, entered into force on 1 July 1975 and now has a membership of 145 countries. The principle aims of the CITES treaty is to restrict and enforce international trade in plants and animals listed in its’ appendices as endangered. Articles of the treaty include: regulation of trade measures to be applied by signatories in importing/exporting endangered species; exemptions; designation of national scientific and management authorities; trade with non-signatory parties; conferences of signatory parties; CITES secretariat responsibilities and services; international measures; effects on domestic legislation; and, appendices listing endangered species of fauna and flora. The CITES agreement was one of the first international legal instruments to address the sustainable management and development of the earth’s most vulnerable natural resources effected by human activities and misuse.8

Introduction to Economic Prosperity and Sustainable Development

Without a measure of economic prosperity at the local, national, regional and international levels, progress towards sustainable development objectives is near impossible. Economic resources allow individuals, businesses and governments to make rational decisions on the future direction of economic, social and environmental protection actions. Without economic resources, people and governments must dedicate the vast majority of their time and energy to simply securing and providing the bare necessities of life, regardless of long-term economic or environmental costs. Seen in this light, it is little wonder that the United Nations Secretary-General, the Economic and Social Council and associated United Nations programmes and agencies usually rank poverty alleviation as the most pressing problem facing the international community. This also explains why the organs of the United Nations spend the majority of their time exploring methods of providing for sustainable development activities through adequate and stable financing, official development assistance, sustainable industrial development, trade, technology transfers and capacity building. The greatest challenge for the United Nations and the community of nations is to facilitate progress towards global economic prosperity while at the same time, ensuring that measures taken today will not come at the expense of future generations.

Links

The following is a list of sites where you can view or download the text of these conventions, along with background information, descriptions, amendments and associated protocols (for the Kyoto Protocol you will need Adobe Acrobat Reader—which can be downloaded free at the web site listed—to download the document in pdf. Format).

Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification: http://www.unccd.ch/ccdeng.htm

Framework Convention on Climate Change: http://www.unfccc.de

Convention on Biological Diversity: http://www.biodiv.org/convtext/cbd000.htm

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal: http://www.unep.ch/basel/

Vienna Convention on the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer: http://www.unep.ch/ozone/vc-text.htm and http://www.unep.ch/ozone/mp-text.htm respectively.

Convention on the Conservation of Migratory Species of Wild Animals: http://www.wcmc.org.uk/convent/projects.

Convention on International Trade in Endangered Species of Wild Fauna and Flora: http://www.wcmc.org.uk:80/CITES.

Resources

1 United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, Part I, Article 3 and Part II, Article 4 respectively, December, 1992. (United Nations General Assembly Resolution 47/188).

2 United Nations Framework Convention on Climate Change, Articles II and III respectively, June 1992.

3 Convention on Biological Diversity, Articles I, III, IV, VI and V respectively, June 2, 1992.

4 See the United Nations Environment Programme web site devoted to the Basel Convention at www.unep.ch/basel to view either the text of the Convention or the helpful explanatory leaflets from which this figure was taken.

5 The Objectives and Principles set down here are a synthesis of the general terms of the Convention as outlined by the United Nations Environment Programme web site. The internal organisation of the Convention text did not easily lend itself to the format of this piece so editorial changes were imposed for the sake of continuity.

6>Vienna Convention for the Protection of the Ozone Layer, Article 2, s.s. i and ii, 1985.

7 Convention on the Conservation of Migratory Species of Wild Animals, Articles II and V respectively, 1975.

8 Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973 (Amended 1979).