The current system of environmental governance Essay

When the United Nations was founded in 1945, environmental issues were not yet on most national agendas, let alone on the international agenda. As a consequence, the U.N. Charter does not even mention the word “environment”. In the years since, environmental degradation has emerged as a pressing international concern. Wind currents, rain patterns, rivers, and streams carry pollutants hundreds or even thousands of miles from their sources, violating national borders with impunity. On an even larger scale, the global environmental problems of ozone depletion, climate change, deforestation, and the loss of the Earth’s biological diversity threaten all nations.1 Furthermore, recent research identifies population growth and natural resource scarcity as important factors in exacerbating social tensions and provoking conflict in many corners of the globe.

As the problems have worsened, environmental issues have gradually moved onto the international political agenda. To date, governments have adopted more than 170 environmental treaties concerning subjects of shared concern: acid rain contamination, ocean pollution, endangered species depletion, hazardous waste exportation, and Antarctica preservation. More than two-thirds of these agreements have been reached since the landmark 1972 U.N. Conference on the Human Environment in Stockholm. This conference created the United Nations Environment Program (UNEP), which is headquartered in Nairobi and serves as the main focal point for environmental issues within the U.N. system.

In the early years of the environmental movement, the environment was treated as something of an add-on concern that could be addressed by the creation of a handful of laws and environmental agencies. More recently, recognition that protecting natural resources and environmental quality is integral to economic health and to national security has grown. At both the national and the international level, an adequate response to the challenge requires integrating environmental considerations throughout social, economic, and foreign policy-making. At the international level, the UN has taken the lead role to improve the global environment.

Individual states are ill-equipped to deal with many of the environmental problems of today. What is the role of the United Nations in continuing momentum toward greater cooperation regarding global environmental issues? Many environmental issues, including climate change, the protection of biodiversity, the pollution of air and water, have major transboundary aspects and require interstate cooperation. Since the 1972 Stockholm Conference on the Human Environment, the United Nations through UNEP (U.N. Environment Program) has established a strong track record in facilitating that cooperation by collecting and disseminating data on environmental problems, assisting governments in creating or improving policy, legislative and institutional frameworks for environmental protection and helping governments reach agreements on important environmental conventions.

The 1992 Rio Conference took a major step forward in bringing about high level political agreement on Agenda 21, a comprehensive program of action aimed at integrating environment and development policies and actions. It also produced agreement on three major conventions, on climate change, the protection of biodiversity and desertification.

For the future, according to Mr. Kofi Annan2, it will be important for the United Nations to continue playing a major role in the four following areas: (i) providing a source of authoritative information and data on the environment; (ii) assisting governments in the formulation and implementation of effective policies to deal with environment and sustainable development problems, including in such increasingly important areas as consumption and production patterns and trade and the environment; (iii) assisting governments in the implementation of relevant international conventions; and (iv) facilitating the provision of financial and technological assistance that may be required by developing countries for environment and sustainable development.

Research Methodology: Due to lack of resources and materials, this project is totally based on internet search and net browsing. Most of the part of this project derives its source from the materials from the Westlaw database.

Chapter-1

REINVENTING TODAY’S UNITED NATIONS’ INSTITUTIONS

Current framework:

The current system of environmental governance is a diffuse process, spread through many different treaty bodies and other U.N. institutions. At present UNEP, is the primary environmental organ in the system. Charged with catalyzing environmental work throughout the U.N. system, it is widely acknowledged to have done good job with the minimal resources put at its disposal.3 But it’s limited budget-smaller than that of some private U.S. private environmental groups-is pitiful given the size of the task. An additional problem is UNEP’s marginal position with the U.N. Though charged with coordinating the U.N.’s response to environmental issues, it has little ability to influence the programs of other agencies with much larger budgets, it has no regulatory powers, and it administers few programs.

At the time of the Rio conference-the “Earth Summit”-there was considerable lip-service paid to strengthening UNEP.4 One route toward doing this would have been to upgrade it to a specialized agency. This idea, however, received little support. According to a member of the U.S. government active in the deliberations, this was “principally because there exists doubt as to whether UNEP would have the capacity to respond effectively to greater responsibilities.”5 Instead, delegates decided to urge UNEP to focus its efforts on those things it was perceived to do best, including data gathering and facilitating treaty negotiation.6 In addition, many urged increased financial support for the organization. UNEP’s tiny budget has been increasing in recent years, though from a small base. The organization’s governing council approved a $112 million budget for 1993, up from $57 million in 1989. An additional important element in the current system of international environmental governance is the role of treaty-created mini-institutions. Each individual treaty spawns a Conference of the Parties, a secretariat, and a dispute resolution mechanism. It is through these bodies that much of the real work of international environmental governance currently takes place, such as strengthening treaties in light of new scientific information and overseeing treaty implementation.

These bodies, however, suffer from limited resources and authority. For instance, a recent U.S. General Accounting Office review of the secretariats of eight major international environmental agreements7 found that the participating countries do not always present the treaty secretariats with complete and timely information as required. The secretariats generally do not have the wherewithal or authority to verify reported information, or to independently monitor for compliance. A typical secretariat employs fewer than twenty individuals and has an annual budget of $1-3 million, a drop in the bucket compared to the budgets of U.S. federal agencies charged with implementing domestic laws.8 A notable exception is the CITES (endangered wildlife) secretariat, which, despite limited resources, has considerable powers and has used them to positive effect.

It has, for example, the power to request information from countries about alleged lapses of enforcement and to demand explanations from countries it believes are falling short of meeting treaty obligations. Many of the other numerous U.N. specialized agencies and subsidiary bodies also play an active role in the quest for environmentally sustainable development. For example: the World Health Organization (WHO) promulgates recommended air and water pollution standards that are widely looked to around the world as the international norm; the U.N.

Population Fund is instrumental in encouraging family planning programs worldwide;9 the World Meteorological Organization (WMO) has made important contributions to better understanding of the complexities of climate science;10 and the United Nations Development Program (UNDP) launched the “Capacity 21” initiative in the wake of UNCED, which has so far raised $30 million to assist countries in integrating environmental considerations into their development plans.11 All told, the U.N. system as a whole spent some $590 million on environmental initiatives over the 1992-93 fiscal years.12 (See Table I) Unfortunately, however, the record is not all positive.

Many U.N. agencies have received heavy criticism for environmental insensitivity, and even harm. For instance, a May 1992 report by the World Wildlife Fund called into question whether UNDP had the technical competence necessary to implement environmentally sound development programs.13 The Food and Agriculture Organization (FAO) has come under widespread attack for promoting chemical-intensive farming and underwriting unsustainable forestry projects. The International Atomic Energy Agency has become a tireless promoter of nuclear energy around the world, sometimes encouraging countries to adopt nuclear programs even in the face of advice from the World Bank and others that less costly options exist for meeting burgeoning energy needs.

Introduction:

In light of the upcoming debates about global management of the environment, the present role as well as the potential role of the United Nations system needs to be examined. Currently, the United Nations’ role in environmental management includes information-gathering, monitoring, and rule-making, with little enforcement activity. It may be that, in order for the United Nations to function as it ought to in environmental management, it must not be limited to these roles. Debate over a larger role for the United Nations in the future revolves around the necessity or desirability of creating a new or centralized United Nations authority to undertake environmental functions.15 A new institutional environmental authority could take the shape of a strengthened United Nations Environment Programme, expanded powers for the Secretary General of the U.N. to control the specialized agencies, a new Director General for the Environment, a return of the Economic and Social Council to its original purpose, or the expansion of the Security Council’s definition of threats against international peace and security to include threats to the global environment.

This paper argues that while the goal of expanding the United Nations’ role in environmental management is important, the mere creation of new bureaucratic structures would be ineffective in addressing the difficult environmental problems that plague the planet. International cooperation on measures to preserve, protect, and restore a healthy global environment is ultimately more appropriate than creating any new bureaucratic structure within the U.N. We have already seen that international prohibitions and punishment measures are essentially ineffective.16 There is a clear need for universally accepted environmental standards and duties as well as a codified body of international environmental law, both of which must precede efforts to establish enforcement mechanisms or bodies in the international organizational system.

Further this paper focuses on the specific functional tasks of the United Nations system as currently defined. Information-gathering, monitoring, and assessing capabilities of the system are addressed first, with particular attention to the role played by the United Nations Environmental Programme (UNEP). Next, this section examines how international law on the environment is made and how those norms are enforced by the world system. Finally, this section examines how voluntary cooperation by international actors is essential in the global effort to combat environmental degradation.

The discussion of information-gathering, law-making, enforcement and voluntary cooperation also looks at functions that are not within the exclusive domain of the United Nations system. By comparing the United Nations’ effectiveness in these areas with the potential effectiveness of regional organizations,17 non-governmental organizations, treaty regimes and commissions, and even transnational corporations, this section sheds light on those areas where the United Nations’ efforts are misfocused.

Further this paper argues that the United Nations system should concentrate on what it does best: information-gathering, assessment, and international standard-setting or law-making, leaving the remaining tasks to other international entities. While a strong centralized bureaucracy would ideally be desirable to manage the world’s environment, the current underdeveloped legal regime and U.N. structure makes such a body impracticable. This section demonstrates that while the United Nations cannot function as the sole manager of the earth’s environment, it does have an important role to play as a facilitator and coordinator of efforts and information. Then it goes to analyze current suggestions for a new institutional authority and offers a potential form that such an authority should take in light of the tasks the U.N. is best able to perform. While environmental problems are global in effect and sometimes in cause, highly centralized planet management is beyond the scope of the United Nations at the present time.

I. Current position of the U.N. within the International Environmental Management Structure:

International management of the environment by a highly centralized United Nations system is an inappropriate if not impossible goal in light of the conflicting interests of governments, regional bodies, scientists, academics, and activist organizations. By examining the functions that the United Nations currently performs in the environmental arena as well as the difficulties associated with those functions, potential problems surrounding a ‘new institutional authority’ become apparent.

A. Information-Gathering, Monitoring, and Assessment:

The formal role of the United Nations as an international institution within a scheme of planetary management of the environment is limited and recent. The United Nations Educational, Social, and Cultural Organization (UNESCO) began work on conservation almost immediately after its creation in the 1940s and convened the Biosphere Conference in 1968. The U.N. Secretariat and major U.N. organs had little to do with the environment, however, until the 1970s, when the Stockholm Conference triggered an institutional response. Accordingly, the Charter of the United Nations does not specifically refer to environmental matters which were low on the post-war agenda when the U.N. was created.18

The overall responsibility for information-gathering and monitoring19, assessment20, exchange of information21, and reporting on environmental concerns has been given to the United Nations Environment Programme (UNEP). UNEP is also responsible for technical assistance to states regarding environmental assessment and management as well as the promotion of international laws, conventions, and agreements.22 UNEP’s mandate is to be the central catalyst, coordinator, and stimulator in the field of the environment.23 Although UNEP has not reached its full potential, it has accomplished certain discrete tasks quite well. These include its ability to collect and disseminate data, to act as a catalyst on environmental issues and ideas, and to coordinate scientific efforts through joint projects with specialized agencies and non-governmental organizations.

The U.N. is looking forward in trying to improve its ability to conduct activities currently entrusted to UNEP. The General Assembly recently requested a report containing proposals and recommendations on possible ways and means to strengthen the capacity of the United Nations: (a) to monitor, assess and anticipate environmental threats; (b) to define criteria for determining when environmental degradation undermines health, well-being, development prospects and the very survival of life on the planet to such an extent that international co-operation may be required, if requested; (c) to issue early warnings to the international community when such degradation becomes imminent; (d) to facilitate intergovernmental co-operation in monitoring, assessing and anticipating environmental threats; (e) to assist Governments facing environmental emergencies, at their request; and (f) to mobilize financial resources and technical co-operation to fulfill the above tasks . . . taking into account the needs of the countries concerned, particularly the developing countries.24

It is in these areas that the U.N. sees its primary role in global environmental management.

B. International Law-Making and Standard-Setting on the Environment

International law can be categorized as either ‘hard’ or ‘soft’. Soft law is defined as exhortations without binding force. Conference reports and General Assembly resolutions and declarations, all of which provide guidelines for voluntary government compliance, are considered ‘soft’ international law. An example of soft law in the environmental area is the periodic endorsement by the General Assembly of the priorities set by the United Nations Environment Programme.25 The most recent session of the General Assembly passed five substantive resolutions on environmental matters.26

The impetus for the creation of soft law on the environment within the United Nations system began in earnest in 1972, when the Stockholm Conference on the Human Environment was convened. Following the Stockholm Conference, scientific awareness of pollution and its dangers to life and health grew and became widely disseminated. A follow-up meeting of experts was convened in 1986, resulting in the broadly based recommendations and policy planning which characterize the Bruntland Commission’s Report, Our Common Future.27

This report contained proposals for strengthening the legal and institutional framework for environmental protection and sustainable development beyond the original Stockholm Action Plan. This Action Plan contained one hundred and nine recommendations that supplemented the principles of the Declaration.28 At least one of the unofficial, non-binding statements from the Stockholm Conference, Principle 21, may now have achieved the status of customary international law.29 Whether the entire Bruntland Action Plan has crystallized into customary international law is a matter of debate by legal scholars.

Hard law is codified in treaty obligations, binding on states party to that treaty, and sometimes on third parties.30 Treaty law on the environment has developed tremendously over the last twenty years. One hundred and forty multilateral treaties and protocols on the environment are listed in UNEP’s latest compilation, compared with the fifty-eight listed in May 1977.

Existing treaties are primarily issue- or pollution-specific, addressing a single species or type of pollution.31 The proliferation of highly specialized treaties has resulted from the need to encourage states to become signatory to environmental agreements which are necessarily political in nature. Due to the politically sensitive nature of these agreements, there as yet is no universal declaration of environmental rights or a framework convention on the rights of the world’s people to a clean environment.

The application of treaty law to environmental problems has many drawbacks. Treaties are narrowly drawn, limited in their application until ratified by a significant numbers of states, and lack enforcement mechanisms that would encourage compliance. In addition, formation of traditional public international law and its crystallization into customary law are lengthy processes.32 Codification by treaty law may take as long as twenty years.33 The United Nations International Law Commission has thus far spent ten years on its draft report on the “injurious consequences of acts not contrary to international law,”34 addressing environmental harm. No steps have been taken to make environmental damage an international crime. The immediacy of the global danger resulting from ozone depletion and climate change caused by emissions of greenhouse gases, for example, require quicker alternatives to the traditional international law-making process.

Although international environmental law has not changed drastically in the past twelve years, its emphasis has clearly shifted. Classical nature conservation and anti-pollution law has given way to a broader view of ‘eco-management’. This view stresses sustainable economic development and utilization of resources, including the global management of chemicals.

The body of international environmental law is growing rapidly. The Brazil Conference offers an opportunity to enlarge even further this body of law. For example, there has been a proposal to draft a universal declaration on the environment, such as that suggested by the Experts’ Group of the Bruntland Commission. The United Nations Environment Programme has been active in encouraging the development of international environmental law, most notably in the areas of ozone layer protection, hazardous waste management, and international chemical trade control.35

C. Environmental Enforcement by the United Nations:

Traditional international law-making or standard-setting is an inherently slow process. This is due in large part to the lack of consensus surrounding existing norms of international environmental law. What little international environmental law exists is often ineffective because of the absence of enforcement mechanisms. International cooperation in the area of enforcement is necessary in order to make the formulation of any new laws and rights meaningful.

The United Nations’ chief enforcement mechanism is the International Court of Justice (ICJ), and access to that forum is limited. Little jurisprudence has emerged on environmental matters from the Court.36 About all that it has done is helping formulate a rather vague obligation of every state “not to allow knowingly its territory to be used for acts contrary to the rights of other states.”37 In order to increase the usefulness of the ICJ in the environmental area, specialized chambers for environmental cases should be considered.

Two recent multilateral documents have suggested international enforcement mechanisms for protection of the environment. One is the report of the legal experts group of the World Commission on the Environment. This report contains a draft Convention as well as General Principles on Environmental Protection and Sustainable Development. It proposes a well-developed organizational system, with a U.N. High Commissioner for the Environment who would hear individual complaints and issue reports and a Commission for the Environment that would hear complaints from states and issue reports. Unfortunately, this document has not become a serious part of the debate on U.N. reform. This may be because the report has no binding force and was not issued by an official U.N. organization.

The plan for a High Commissioner and a Commission empowered to hear reports and complaints echoes the form successfully used by the United Nations in human rights and refugee matters. It deserves serious consideration as a way of expressing the United Nations’ commitment to environmental protection. This structure would allow citizens concerned about environmental protection to circumvent national governments that presently stall on corrective measures.

The second multilateral document, the Hague Declaration on the Environment,38 calls for a new institutional authority to be created within the U.N. to combat global warming by means of enforcement efforts. The design of this “authority” is not defined in the Declaration, nor is there any reference made to the type of ombudsman envisioned by the committee.39

An additional enforcement proposal is the recommended creation of ‘green cross’ centers, which would collect environmental data and analyze capabilities. The operation, originally proposed by the Soviet Union, could be modeled after the highly successful U.N. peace-keeping and peace-making efforts. The centers would be staffed with emergency environmental ‘troops’ or ‘green helmets’ who would be able, for example, to rush to the scene of environmental disasters. The ‘green helmets’ could help with enforcement of treaty provisions by conducting inspections to verify compliance and measuring damage following environmental disasters. This idea should be given serious consideration at the United Nations.

D. Voluntary Cooperation:

Many environmental problems are global in effect and can be solved only by global efforts. International matters concerning the protection and improvement of the environment must be handled in a cooperative spirit by all countries irrespective of size or wealth. Cooperation that takes due account of the sovereignty interests of all states is essential to the effective control, prevention, reduction, and elimination of diverse environmental effects that are the result of activities in all spheres.40

The formulation of international environmental law is not at an advanced stage, and enforcement is virtually nonexistent. The United Nations offers a structure for international cooperation in the environmental arena. This may result in more effective compliance with environmental laws than that achieved by the prescription and punishment model of traditional law enforcement.

Currently, progress is being made to encourage global cooperation. General Assembly Resolution 44/224 calls for greater international cooperation in monitoring, assessing, and anticipating environmental threats and rendering assistance in cases of environmental emergencies.41

Chapter-3

ADMINISTRATIVE FLAWS IN THE U.N. SYSTEM: NEED FOR A REFORM

A. The Nature of the Problem:

No international administrative or operational body is currently performing adequate coordination on environmental matters outside or within the United Nations system.42 For example, under the reporting system established by General Assembly Resolutions 42/186 and 42/187, no U.N. official or organization is charged with responding to, or determining, the adequacy of the information collected from governments, U.N. organizations, and specialized agencies. The overall structure for coordination of efforts within the U.N. system seems well-established on paper, but is not adequate in practice. Furthermore, the complex nature of environmental problems makes it impossible for any one government to control its domestic difficulties in this area, let alone to handle them internationally. The question, therefore, is whether more centralized authority is desirable within the U.N. system.

There is currently a call for a new centralized authority. That authority’s mandate, however, has not been enumerated in any significant manner. The Hague Declaration on the Environment calls upon the United Nations to establish a “new institutional authority” to monitor and enforce measures to reverse global warming and climate change.43 However, the Declaration does not describe the extent to which enforcement powers should be granted or the source of this authority’s funding.44 Nor does the declaration discuss political considerations such as voting processes, governing institutions, and dispute-resolution mechanisms.45

Had the Hague Declaration gone further, it could have served as a model for future international cooperation involving non-governmental organizations, private industry, scientific organizations, academics, concerned individuals, environmental groups, and member states of the United Nations in a concerted effort for global survival. Any real “authority” conducting environmental planet management must exercise strong leadership that is responsive to the needs of all people for a healthy environment and must balance competing interests in distributing the earth’s limited resources in a fair and equitable manner. It follows that if power is given to this ‘authority’; states will have to accept limitations on sovereignty,46 yielding real decision-making power to this new institutional body. Under such a scenario, the role required of the United Nations in the future is nothing less than planet management.

The accomplishments of any U.N. authority should be considered against the backdrop of the three major environmental policy documents currently accepted within the U.N. system: the Bruntland Report,47 the Environmental Perspective to the Year 2000 and Beyond,48 and UNEP’s System-Wide Medium-Term Environmental Programme: 1990-1995.

The nature of this new authority should be broadly conceived, reflecting current thinking on the leadership needs of the organization. The formation of the authority must take into account the opinions of the independent sector, non-governmental organizations, and member states within the U.N.’s decision-making process.

Real planet management requires the public and private sectors to coordinate their activities. Action taken in one area, such as eradication of health problems caused by unclean drinking water, may affect another area, such as soil erosion. For example, if more people survive and reproduce as a result of having clean drinking water, the increased population will strain already-scarce natural resources. An area may have to be deforested in order to create more cropland or to find firewood. Overall planet management would necessarily involve global planning for population growth through rotation of agricultural and industrial activities, resource conservation and preservation, bans on emissions of carbon dioxide, CFCs, nitrous oxide, and similar measures that help to provide clean air, water, and soil. Such global management was outlined as long ago as 1972 in the Stockholm Action Plan,49 but is not yet a reality.

A highly centralized bureaucracy could accomplish centralized planning through allocation of scarce financial resources and personnel in a manner that will efficiently achieve stated goals. Unanimity within the bureaucracy would make it possible for the stated goals to be incorporated into the work of the organization at every level. The problem, however, is that the lack of a comprehensive international environmental legal regime makes it imprudent to create a centralized U.N. manager at the present time.

B. In Favor of Autonomy and Innovation:

Within the U.N. system, centralization has failed in the developmental area and is equally inappropriate in the environmental context. The complexity of the problems involved in environmental policy, as well as the inability of existing U.N. bodies to coordinate actions, suggest that spawning a new hydra-headed bureaucratic agency or post is a pointless exercise. Thus far the utilization of specialized groups, with specialized scientific and technical expertise, to study specific environmental problems and establish policy in their area of expertise has worked well. The role of the U.N. should be to facilitate cooperation among these groups.

Because these cooperative efforts are neither mandated nor monitored by the Secretary General or any other body, consistency with other U.N. programs and appropriate examination of priority issues is not ensured. This lack of coherence is similar to the problems articulated by those who bemoan the autonomy of specialized U.N. agencies.50

The benefits of autonomy outweigh the difficulties, however, since global problems of environmental protection cannot be easily categorized or simplified. A network of specialized agencies, each using their own expert scientific or academic viewpoint, will be uniquely informed on the constantly evolving scientific and technical environmental information.

Breakthroughs in understanding are more likely to occur when groups are free to explore their own priorities. When, in the past, specialized agencies or UNEP have felt the need to coordinate on a specific issue, they have done so without direction from a centralized authority. A further advantage of autonomy is the ability of independent bodies to attract the best personnel, who frequently do not wish to work in a stifling bureaucratic system.

Free to follow their own research agendas, scientific bodies have long been at the forefront of the environmental movement. Scientific data has taught the world about the destruction of the ozone layer, the rate of global warming, the decimation of species, the pollution of rivers and seas, and the nature of toxic or hazardous substances.51 Creative thinking is vital to the survival of the planet, and any structure that encourages free thinking is better than one that seeks to fit the pursuit of knowledge into an administrative chart or organizational table. Duplication of effort in and of itself is not harmful. Fear of duplication, therefore, does not justify additional U.N. supervision or accountability.

In the new era of worldwide environmental concern, the U.N. should encourage diverse groups to contribute their specialized perspectives in the hope of discovering the best environmental solutions. International environmental law has not developed to the point where there is a worldwide unified front behind the protection of the environment. Proposals for centralizing authority over global planet management, therefore, are premature.

C. Forms of the New Institutional Authority:

In light of the Hague Declaration’s call for a “new institutional authority” and its failure to describe a true planetary manager, it is necessary to explore the possible shapes a mandated authority should take. The U.N. should concentrate on improving current methods of coordinating and facilitating independent efforts and forego the establishment of any new authority until the position of international environmental law is solidified.

Proposed remedies include strengthening the position of UNEP, creating new bodies and posts, giving the Secretary General more power over the specialized agencies, or naming a new senior U.N. official with an environmental portfolio.52 The Trusteeship Council could be revitalized to protect the “common heritage/concern of mankind [sic]”;53 the Economic and Social Council (ECOSOC) could be strengthened to perform its originally-designated functions;54 or a new subcommittee on the environment could be created in the General Assembly.55

Another proposal reinterprets the mandate of the Security Council to protect “international peace and security” to include environmental harm within the definition of threats to international peace and security. Finally, the recommendations of the Experts’ Group on Environmental Law of the World Conference on Environment and Development could be implemented. Their proposal would create a mechanism similar to that created for the protection of human rights. A High Commissioner as ombudsman would receive reports and investigate complaints from individuals or nongovernmental organizations, and a commission would investigate and receive reports from states. Those suggestions that have been seriously raised at the United Nations are worth analyzing within the present political realities of the system.

1. Strengthen UNEP:

A reconstructed UNEP more strongly linked with the central United Nations is not the best alternative for a system-wide coordinating authority with enforcement powers. Because specialized agencies resist UNEP’s leadership and coordination efforts, UNEP lacks influence over their programs. UNEP is also more committed to action than to conceptualizing environmental policy. Some ‘authority’ other than UNEP empowered to implement policy and impose sanctions would be needed in the U.N. system. Elevating UNEP to the status of a council to enhance its authority in seeking governmental information is a less radical and more desirable approach. This would be most consistent with the Stockholm Conference’s conception of UNEP.56

UNEP as activator of the Stockholm Action Plan has given the international environmental movement a universality, a legitimacy, and an acceptability in Third World countries. Its role in environmental information-gathering, monitoring, assessing, and managing envisioned in the Stockholm Action Plan is still critical to the survival of our planet.

2. Give the Secretary General Power over Specialized Agencies:

Another alternative is to increase the authority of the Secretary General of the U.N. with the grant of supervisory or direct control over the specialized agencies.57 There are constitutional problems inherent in such a change. Neither the Charter nor the constitutions of the specialized agencies give the Secretary General that degree of power. Political and ideological forces at work within the international organization make it unlikely that such a change will occur in the near future. Developing countries that tend to favor the autonomy of the specialized agencies and benefit from their social and economic programs will be at odds with developed countries that generally accuse the agencies of being out of control and overspending.

3. Create a New Director General for the Environment:

Another suggestion for the form of this new authority would be the creation of a new senior-level position in the U.N. Secretariat. A new executive to be called the Director General for the Environment could be created to coordinate environmental issues central to social and economic peace and security. She would report directly to the Secretary General on an equal organizational level with the Director General for Economic and Social Affairs and would be provided with the staff and resources necessary to determine and enforce global environmental policy. As envisioned here, the Director General’s role would stress international cooperation and leave factual, scientific questions to the specialized agencies.

The new Director General would communicate not only with member states of the United Nations and U.N. officials, but also with non-governmental organizations, the media, concerned individuals, academics, and environmental groups, whose input would be incorporated into the Director General’s decision-making when establishing global priorities. These groups also would provide an input in selecting the Director General. Promising candidates include Gro Bruntland of Norway, Chair of the Bruntland Commission and author of the Bruntland Report, and Maurice Strong of Canada, current Secretary General of the U.N. Conference on the Environment and Development. The first Director General could be chosen in 1992 from a short list compiled by a broadly based representative committee at the Brazil Conference. The term of office should coincide with that of the United Nations Secretary General.

The Director General for the Environment could work with the Director General for International Economic and Social Affairs to balance environmental concerns with development issues. This collaboration would be particularly beneficial in the areas of commodity pricing and environmental impact statements. Because the proposed Director General for the Environment would be responsive to public opinion, groups outside the United Nations, and its member nations, she would be in a position to determine which environmental issues are better handled by non-governmental organizations, regional organizations, and bilateral agreements.58 Another advantage is that a Director General, by serving a clearinghouse function, is insulated from political pressures exerted by member governments in a way that agency and organization heads are not. Such moral authority however, would only be attainable to the degree that the selection process for the post is untainted by those same pressures.

4. Reorganize Existing U.N. Organs:

The Security Council, the General Assembly, ECOSOC, and the Trusteeship Council could be restructured or given an expanded mandate to address environmental concerns. For example, without amending the Charter, a subcommittee of either the Security Council or the General Assembly could be designated to deal with environmental matters beyond the present scope of the Second Committee of the General Assembly. The Trusteeship Council could exercise stewardship over the world’s resources held in trust for mankind, recognizing that issues like climate change are the “common concern of mankind”.59 An Economic and Social Council functioning as per its original design could also be the focal point for environmental protection measures. However, because of the sensitive political climate discussed throughout this paper, it is unlikely that any of these suggestions will be realized.

5. Recommended Solution:

For now, it is more important to define the functions to be performed by the U.N. than to worry about that will carry them out. If it is determined that the information-gathering and monitoring function is in fact the most important function to be performed by the U.N., additional funds for UNEP’s projects in this area and an upgrading of its organizational status should suffice. A coordinating ‘desk’ or simple post at U.N. Headquarters linked to other UNEP offices could collect information from all the specialized agencies, funds, and programs, make the information accessible, and interpret it in a meaningful way.

If the law-making function of the United Nations is also determined to be important, then the Brazil Conference should “elaborate general rights and obligations of states” in the field of the environment and “assist in the prevention and settlement of disputes in the environmental sphere.”60 No further agency or executive head need be created or paid for, nor would any Charter revision or constitutional amendment be required. The implementation of just two recommendations could make the United Nations more effective in protecting the environment in areas where the U.N. is already effective: first, strengthening UNEP’s information-gathering, monitoring, and early warning ability, and second, formulating environmental standards and duties in international law. Other action should be left to regional organizations, treaty bodies, non-governmental organizations, or states.

The time to implement these goals is during the U.N. Conference on Environment and Development in June 1992. Once standards of environmental rights and duties are more firmly established as principles of public international law, the creation of a High Commissioner and a Commission on the Environment could be implemented. The creation of “green cross” centers and other enforcement mechanisms cannot be matters for serious discussion until there is consensus on the scope of international environmental rights and obligations. Only then can the Security Council intervene via international environmental peacekeeping forces or through other security measures.

CONCLUSION

The critical objectives for environment and development policies must include creating a healthy, clean, and safe environment in all countries; reviving overall economic growth, particularly in developing countries; addressing the issues of sound management and enhancement of the resource base; promotion and transfer of environmentally sound technology; and merging environment and economics in decision-making in all countries.61

The environment creates special concerns, since air pollution, radioactive and toxic waste, or depletion of the ozone layer does not respect the boundaries of sovereign states. These truly international or supranational aspects make the subject a natural one for United Nations involvement. The problem is in deciding what form that involvement should take. The most important United Nations role at the present time is the information-gathering, monitoring, and early warning function, leading to the development of international law on environmental rights and obligations that can ultimately be enforced.

Even with success in these areas, problems still remain that are beyond the scope of U.N. power. The phrase “sustainable development”, coined to acknowledge the concerns of developing countries that objected to environmental protection as a limitation on badly-needed development, was used in the Bruntland Report and in all the resolutions adopted by the General Assembly in the 44th session in 1989-1990. Ironically, the phrase may no longer satisfy developing countries in practice and may widen the rift between developed and developing states over priorities. Resolution of this “North-South” conflict will be the greatest challenge of the 1992 U.N. Conference on Environment and Development.

The political and economic question of who pays for environmental protection or clean-up and whose interests are considered remain to be settled. Allocation of scarce resources, choices between competing interests, and other policy decisions cannot be made solely by individual nations when addressing questions of the world’s environment. Nor can such choices be made solely by a United Nations closed to all but member states if the choices are to be truly representative of the peoples of the globe. The decision-making process itself is vitally important to the legitimacy of environmental clean-up policy and will greatly affect the resulting degree of compliance.

It is probable that traditional models of international law and state responsibility, with ultimate recourse to the International Court of Justice for judgments assessing fault and damages, will not be able to redress problems of sustainable development, environmental clean-up, and other areas of environmental harm. Binding treaty law, which acknowledges universally-accepted obligations, may provide a solution if enforced. In the case of environmental protection or duties to warn of impending disaster, the enforcement model may come too late to preserve life. In the end, only voluntary compliance with standards and a model of cooperation will safeguard our globe.

While the United Nations Environment Programme has served its purpose as a catalyst and stimulator on environmental issues, it is not able to provide political leadership on this front. The centralized bureaucracy at United Nations headquarters has been unable to act effectively. Centralization of authority within the U.N. bureaucracy has many drawbacks in seeking environmental solutions, and all of the proposals for creating a “new institutional authority” are accompanied by serious political, legal, or economic obstacles.

The growth of international environmental law has similarly been restricted by the lack of clearly-defined rights and obligations and by the conflicting concerns of developed and developing states. Dozens of treaties specific to one type of pollution or threatened species have failed to be accompanied by either a universal declaration on the rights of all people to a clean and safe environment or other framework convention on the environment, or by a uniform body of rules that have been recognized as customary international law. This must now be remedied, using the opportunity of the U.N. Conference on Environment and Development as a time and place to resolve many of the questions rose in this paper.

Ultimately, changes in lifestyle and consumption and in the way economic growth is achieved will be required to halt or reverse the destruction of the planet. The U.N. system should concentrate on expanding those efforts it already performs well, leaving other functions to regional, private, or non-governmental organizations.

The primary task of the United Nations must be information-gathering and monitoring dedicated to planet management and the development of international environmental law. Accomplishing these tasks is a matter of strengthening an existing program, the United Nations Environment Programme, and using the preparatory process for the Brazil Conference to prepare drafts on legal obligations, duties, and rights. Never has the challenge to international law and institutions been so great, and the potential for success so exciting.

1 Some 200 river basins are shared by two or more countries. United Nations Environment Programme (UNEP), UNEP Profile 12 (1990).

2 See An Interview With U.N. Secretary-General Kofi A. Annan, 21-Fall Fletcher F. World Aff. 1. (1997)

3 See United Nations Environment Programme (UNEP), UNEP Profile 12 (1990). Supra note 1.

4 See generally Institutional Proposals, U.N. GAOR Preparatory Comm., 3rd Sess., and U.N. Doc. A/CONF.151/PC/102 (1992).

5 Patricia A. Bliss-Guest, U.S. Council on Environmental Quality, Proposals for Institutional Reform of the U.N. System to Promote Sustainable Development Policies, Address Before the Twentieth Annual American Bar Association Conference on the Environment 6 (May 18, 1991).

6 See generally Agenda 21: U.N. Conference on Environmental Development (UNCED) at Rio de Janeiro, U.N. Doc. A/C.151/26 (1992) [hereinafter Agenda 21].

7 See generally U.S. Gen. Accounting Office, International Environment: International Agreements are not Well Monitored (1992).

8 Ibid. at p. 31; Also see President Clinton’s Fiscal 1995 Budget Proposal, Environmental and Energy Study Institute Special Report, Feb. 8, 1994, at p. 1.

9 See generally United Nations Fund for Population Activities, Inventory of Population Projects in Developing Countries around the World (1993).

10 See Intergovernmental Panel on Climate Change (IPCC), Climate Change, 1992 the IPCC Supplementary Report 118 (1992).

11 As of May 17, 1994, $30.1 million in payments (out of $40.5 million in pledges) had been received, according to United Nations Development Programme, Capacity 21: Management Report on the First Year of Operation 3 (1994).

12 U.N. ESCOR, Substantive Sess., at 8, U.N. Doc. E/1993/84 (1993).

13 See generally World Wildlife Fund, The United Nations Development Programme and the Environment: A Nongovernmental Assessment (1992).

14Includes data for, inter alia, UNCTAD, United Nations Institute for Training and Research (UNITAR), United Nations University (UNU), the Regional Commissions, Habitat, United Nations Human Rights Commission for Refugees (UNHCR), and United Nations International Drug Control Program (UNDCP).

15 The Hague Declaration on the Environment of March 11, 1989, calls for a ‘new institutional authority’ with decision-making and enforcement powers to be created within the U.N. system to combat global warming. The Declaration does not specify what form the ‘authority’ should take. 28 I.L.M. 1308 (1989) [hereinafter Hague Declaration].

16 The lack of enforcement power by the U.N. is well known and is often used by skeptics to criticize not only the U.N., but public international law in general. Although the U.N. cannot order or control member states, it does wield significant power by using diplomatic pressure and public opinion to induce compliance from states seeking legitimacy in the international arena. This ‘culture of compliance’ is extremely significant in that it results in states conforming their behavior even when it may be contrary to their short-term interests. See, e.g., T. Franck, the Power of Legitimacy among Nations, (1990).

17 These include the Organization for Economic Cooperation and Development, the European Community, the Nordic Council, and the Commission for Security and Cooperation in Europe. Many of the most highly advanced regional organizations are in the developed world.

18 U.N. Charter, 59 Stat. 1031, T.S. 993, 3 Bevans 1153 (1945).

19 UNEP’s monitoring function is performed through the Global Environmental Monitoring System (GEMS), in conjunction with the International Council of Scientific Unions (ICSU). GEMS monitor air and water quality worldwide. Its operations may not be very effective, however, since it necessarily relies on information from states that it cannot, absent cooperation from the state, independently verify. See COMM. INT’L DEV. INST. ENV., 1 Action and Inter-Action: The Role and Potential of CIDIE 31 (1990) [hereinafter CIDIE].

20 Continuous assessment of the state of the global environment is provided by Earth watch, a program within UNEP. Earth watch reviews and evaluates environmental conditions, and it monitors environmental variables and exchanges of information among scientists and governments. CIDIE, supra note 19, at p. 31.

21 The exchange of information function is provided both through INFOTERRA and through the International Register of Potentially Toxic Chemicals (IRPTC), one of the most successful operations within UNEP. IRPTC is constantly modified as new scientific knowledge becomes available. Ibid.

INFOTERRA is a network of government-designated national centers identifying and registering sources of environmental information. The existing network can connect the appropriate intergovernmental or scientific organizations with those organizations or individuals making inquiries. No central data bank exists which compiles the entire globe’s environmental information. Ibid.

22 U. N. Environment Programme: Report of the Governing Council, Environmental Perspective to the Year 2000 and Beyond, 42 U.N. GAOR Supp. (No. 25) Annex II, para. 117, U.N. Doc. A/42/25 (1987) [hereinafter Year 2000].

23 Ibid; G.A. Res. 44/228 (1990) authorized this conference. The debate prior to its adoption highlighted many of the conflicts likely to arise in Brazil, including the feasibility or desirability of sustainable development, the demand by developing nations that economic or technical assistance to attain environmentally sound practices be established under the principle of ‘additionality’ of aid, and the perceived competition between development and the environment in goals and programs. A discussion of these competing interests can be found in the procedural history of Resolution 44/228, through a comparison of a proposal by Malaysia for the Group of 77 and a contrary French proposal. These resulted in a consensus proposal in the Second Committee which ultimately became Resolution 44/228. See U.N. Docs. A/C.2/44/L.55, A/C.2/L.58, A/C.2/44/L.86, and A/44/746/Add.7 at 14, 23 (G.A. Agenda Item 82f, Dec. 22, 1989).

24 G.A. Res. 44/224, at pp. 2 and 3, U.N. Doc. A/44/746/Add.7 A/RES/44/224 (1990).

25 U. N. Environment Programme: Report of the Governing Council, 42 U.N. GAOR Supp. (No. 25), U.N. Doc. A/44/25 (1989).

26 G.A. Res. 44/224 (1990) (authorized action to monitor, assess, and anticipate environmental threats); G.A. Res. 44/225 (1990) (authorized action to curb driftnet fishing); G.A. Res. 44/226 (1990) (authorized action to prevent illegal traffic and transboundary movements of toxic and dangerous products and wastes); G.A. Res. 44/227 (1990) (authorized acts using the Bruntland Report and the Year 2000 as a broad framework to guide national and international cooperation on policies and programmes aimed at achieving sustainable and environmentally sound development in all countries); G.A. Res. 44/228 (1990) (authorized a conference in 1992 on the environment and development).

27 World Comm. Env. ; Dev., Environmental Protection and Sustainable Development (1987) [hereinafter Bruntland Report].

28 U.N. Doc. A/Conf. 48/14/Rev.1 (1972), reprinted in 11 I.L.M. at 1421. Report of the United Nations Conference on the Human Environment, U.N. Doc. A/Conf. 48/14 and Corr. 1 (1972), reprinted in 11 I.L.M. 1416 (1972) [hereinafter The Stockholm Declaration].

29 Principle 21 of the Stockholm Conference stipulates that, 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.

Ibid. Principle 21 is often cited in U.N. documents, evidencing its emergence as customary law. See, e.g., G.A. Res. 42/186, U.N. Doc. A/C.2/44/L.64 (1989); G.A. Res. 42/187, U.N. Doc. A/C.2/44/L.64 (1989); G.A. Res. 44/227 at p. 4 (1990); G.A. Res. 44/228, U.N. Doc. A/44/746/Add.7 (1990).

30 Vienna Convention on the Law of Treaties, May 23, 1969, art. 38, U.N. Doc. A/CONF.39/27, reprinted in 8 I.L.M. 679 (1969).

Multilateral treaty systems addressing certain environmental threats have been established. See, e.g., Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, 26 I.L.M. 1541 (1987); Vienna Convention for the Protection of the Ozone Layer, Mar. 22, 1985, 26 I.L.M. 1516 (1987); Helsinki Declaration on the Protection of the Ozone Layer, May 2, 1989, 28 I.L.M. 1335 (1989).

31 See, e.g., The Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, T.I.A.S. No. 8249, reprinted in 12 I.L.M. 1085 (1973) (providing a framework document with appendices which address specific species).

32 In brief, customary law crystallizes as the resolutions of the General Assembly evolve into declarations that evidence a stronger commitment to a principle. State practice applying the principle then develops, along with opinio juris, or the writings of legal scholars and jurists. In addition, certain fundamental ideas may be characterized as ‘general principles of law’, another traditional source of public international law. Statute of the ICJ, art. 38(1), para. 1.

33 See, e.g., The Third United Nations Conference on the Law of the Sea, United Nations Convention on the Law of the Sea, U.N. Doc. A/ Conf.62/122 (1982).

34United Nations International Law Commission, Preliminary Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law, U.N. Doc. A/Cn.4/334/Add. 1, 2 (1980); Report of the International Law Commission, 44 U.N. GAOR Supp. (No. 10), U.N. Doc. A/44/10 (1989).

35 Petsonk, The Role of the United Nations Environment Programme (UNEP) in the Development of International Environmental Law, 5 Am. U.J. Int’l L. & Pol. 351, 367 (1990).

36 For a notable exception to this rule, see Nuclear Test Cases (Aust. v. Fr.), 1974 I.C.J. 253; (N.Z. v. Fr.), 1974 I.C.J. 457 (addressing the problem of nuclear fall-out from one territory entering the atmosphere of another territory).

37 Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4, 22. The language of the I.C.J.’s opinion was mirrored over twenty years later in Principle 21 of the Stockholm Conference. Supra note 29.

38 Supra note 15.

39 Ibid.

40 Report of the United Nations Conference on the Human Environment, U.N. Doc. A/Conf. 48/14 and Corr. 1 (1972), reprinted in 11 I.L.M. 1416 (1972) [hereinafter The Stockholm Declaration].

41 International Co-operation in the Monitoring, Assessment and Anticipation of Environmental Threats and in Assistance in Cases of Environmental Emergencies, U.N. Doc. A/44/746/Add.7 at p. 3, para. 1, A/RES/44/224 (1989).

42 The Secretary General of the United Nations is the organization’s chief administrative officer under the U.N. Charter. U.N. Charter art. 97. As the system is presently organized, the Secretariat receives assistance in system-wide oversight and coordination from the Administrative Committee on Coordination (ACC), including coordination of all U.N. organizations dealing with environmental issues.

The Governing Council of the United Nations Environment Programme sets policy and performs some coordination within the U.N., but it does not have power to implement system-wide policies or decide each agency’s respective jurisdiction. G.A. Res. 44/224, supra note 23.

Since 1978, a senior-level working committee called the ‘Designated Officials on Environmental Matters’ (DOEM) meets on behalf of all U.N. organizations interested in the environment and plans and coordinates environmental activities within the U.N.. This group, according to its own report, The System-Wide Medium-Term Environmental Programme: 1990-1995, U.N. Doc. UNEP/GCSS.I/2 at 7 (1987), has played a ‘seminal role’ in the field. The DOEM and the Consultative Committee on Substantive Questions (CCSQ) are planning to hold a joint session on approaches to environmental guidelines and their application to operational aspects of the U.N. system.

43 Supra note 15 at p. 1309.

44 Ibid at p. 1310.

45 Ibid.

46 For a traditional statement of sovereignty in the environmental context, see Lake Lanoux Arbitration (Fr. v. Spain), 1957 I.L.R. 101 (rejecting the claim of absolute sovereignty of one state to use a drainage basin to the harm of another state).

47 Supra note 27.

48 Supra note 22.

49 Supra note 40.

50 Specialized agencies have a unique relationship to the United Nations. By virtue of their own charters or constitutions, they are independent of the Secretary General and other organs of the U.N. Through their individual governing bodies, they establish their own policies and priorities and report to the Economic and Social Council each year. The specialized agencies have their own budgets and choose their executive heads separately from the U.N., although the Secretary General may approve the final selection of a candidate.

51 N.Y. Times, Nov. 14, 1989, at C1, col. 1.

52 There is a Director General for Development, second only to the Secretary General of the United Nations and elevated above the rank of Under-Secretary General by title and emoluments. The Director General reports directly to the Secretary General and has a staff apart from the United Nations Development Programme. The degree of cooperation and coordination between the DG and UNDP is not significant.

53 This proposal has received no political backing and is generally considered dead.

54 ECOSOC was intended to coordinate all the social and economic programs of the United Nations system. It is probably for this reason that the specialized agencies and non-governmental organizations having consultative status to the U.N. enter into independent agreements with ECOSOC which define their status in the system. U.N. Charter arts. 61-72.

55 Presently, environmental matters are considered by the Second Committee of the General Assembly, which also reports on development and other issues.

56 Supra note 40.

57 This idea would require amendment of the U.N. Charter or to the constitutions of the specialized agencies. The Secretariat does not have such authority at the present time but this has hardly slowed down progress. For example, in the environmental field, certain specialized agencies such as the United Nations Educational, Social, and Cultural Organization (UNESCO) have worked tirelessly for decades on conservation of natural resources. Other specialized agencies such as the World Meteorological Organization (WMO), the Food and Agricultural Organization (FAO), the United Nations Fund for Population Affairs (UNFPA), and the World Health Organization (WHO) have collected data and formed teams of scientists from all over the world to understand and correct situations in which humanity’s industrial and consumer behavior is adversely affecting the globe.

58 Regional organizations or bilateral treaties may be more effective than the U.N. in establishing environmental standards and in obtaining compliance by member states. The European Community’s efforts in environmental action are exemplary. See, e.g., European Council Resolution on the Greenhouse Effect and the Community, 32 O.J. Eur. Comm. (No. C 183) 4-5 (1989), reprinted in 28 I.L.M. 1306 (1989).

59 The original phrase, “the common heritage of mankind”, was used by Amb. Borg-Olivier’s predecessor from Malta in the context of the law of the sea and the rich resources of the seabed. See G.A. Res. 43/53, reprinted in 28 I.L.M. 1326 (1989); UNEP Governing Council Decision on Global Climate Change, UNEP GC Dec. 15/36, reprinted in 28 I.L.M. 1330 (1989).

60 G.A. Res. 44/228, paras. 15(d) & (w), 49 U.N. GAOR Supp. (Sept.- Dec. 1989) at p. 15, U.N. Doc. A/44/746/Add.7 (1989).

61 G.A. Res. 44/227, 49 U.N. GAOR Supp. (Sept.-Dec. 1989) at 150, U.N. Doc. A/44/746/Add.7 (1989).