International Environmental Law-making and Diplomacy

Insights and Overviews

Tuomas Kuokkanen, Ed Couzens, Tuula Honkonen, Melissa Lewis, Tuomas Kuokkanen, Ed Couzens, Tuula Honkonen, Melissa Lewis

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317530244
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

Bringing together contributions from diplomats, UN agency officials, lawyers and academics, this book provides insight into the evolution of international environmental law, diplomacy and negotiating techniques.

Based on first-hand experiences and extensive research, the chapters offer a blend of practice and theory, history and analysis, presenting a range of historical episodes and nuances and drawing lessons for future improvements to the processes of law-making and diplomacy.

The book represents a synthesis of the most important messages to emerge from the annual course on Multilateral Environmental Agreements, delivered to diplomats and negotiators from around the world for the last decade by the University of Eastern Finland and the United Nations Environment Programme. The book will be of interest as a guide for negotiators and as a supplementary textbook and a reference volume for a wide range of students of law and environmental issues.

1
Introduction

The substance and the structure of international environmental law-making and diplomacy

Ed Couzens, Tuula Honkonen, Melissa Lewis and Tuomas Kuokkanen

Introduction

What is presented in this collection of chapters is an amalgam of theory and practice – of the writings of academics studying international environmental law and governance; and the experiences of practitioners, diplomats and negotiators, working in the field. There are chapters on substance, descriptions and explanations of events; and chapters on procedure and technique as these have manifested themselves in multilateral negotiations. In an important sense, all of the chapters are on the evolution of international environmental law, be this overall or specific. Yet, the chapters are not historical studies as many of the issues discussed are still relevant, not merely ‘history’. Furthermore, one thing that all of the chapters have in common is that ultimately they all look to the future, seeking to draw lessons from the past for the improvement of future practice.

It has been argued that through ‘[r]egional regimes and global accords, as well as nonbinding guidelines and principles’, a ‘body of legal instruments constituting a new area of international law: international environmental law’ has begun to be formed (Tolba and Rummel-Bulska, 1998: 7). Through this process, the argument is made, ‘a new form of multilateral diplomacy, environmental diplomacy, has emerged’ (ibid.).

The authors assembled here vary from experienced diplomats who have been involved in the crafting, in the teeth of considerable opposition, of some of the world’s most important international environmental conventions; to academics who have studied carefully the nuances of different regimes, governance structures and historical approaches.

The content of the chapters

International environmental law is not currently composed of a fixed set of principles and concepts. Rather, it is a dynamic construct that is constantly developing. In his chapter, Marc Pallemaerts outlines the sources of international environmental law. He then argues that a number of general principles can be identified as having developed – with these having emerged from both national and international law and practice – and outlines the content and international recognition of several of the most important of these principles. Regimes, he says, then develop from the sources and principles as a response to environmental problems in specific issue-areas, and themselves play an important role in further developing the sources, and articulating the general principles, of international environmental law. Regimes, according to Pallemaerts (who uses the climate change regime as an illustration), bring forward the dynamic nature of law as a product of continuous interplay between principles, rules and institutions – ‘hardening’ over time.

Sadly, Marc Pallemaerts passed away during the editing process for the present book. His death was a great loss to the international environmental community. The editors have the honour of commemorating his academic and professional work by including his ideas here as one of his last contributions, although his insights will continue to live on through the students he taught, colleagues he worked with and the people he knew.

After considering the sources and principles of international environmental law, it would be an omission not to consider the nature of, and the rules applicable to, treaties. To fill this need, Päivi Kaukoranta presents a brief overview of the essential elements of a treaty (as defined by the Vienna Convention on the Law of Treaties, 1969) and the basic concepts of the treaty-making process. While it is in the nature of international law that exceptional circumstances and exceptions to rules will always arise, it is important to embed understanding of international law-making firmly in the rules that provide the foundation of the system.

Treaties do not simply ‘arrive’ in their final forms ad hoc. They are necessarily products of their times and of their particular circumstances, and broad historical trends can be identified as international negotiators have set about solving the evolving environmental problems in different ways through the crafting of international conventions and the building of international regimes. With attention throughout the chapter to water issues as a touchstone, Tuomas Kuokkanen tracks the development of different phases of international environmental law-making from the approach of applying general international law without distinguishing specifically between protecting natural resources and protecting the environment; through the approach of distinguishing between substantive regulation dealing with protecting the environment and substantive regulation dealing with the exploitation of natural resources; to the approach of recognizing that these issues are interlinked and dealing with the relationship in an integrated manner. Kuokkanen argues that, even though each of these approaches has dominated a different period in history, they all remain applicable today and continue to be reflected in the ways in which the international community attempts to solve the world’s environmental problems.

International environmental law-making and diplomacy needs to be understood in its entirety. This requires understanding both the practical ‘on the ground’ issues of actual negotiations, the ‘micro’ view, on the one hand; and the overall picture, the ‘macro’ view, on the other. Louis Kotzé provides an overall perspective of international environmental governance, explicating links between the environment, governance and law. The chapter then attempts to define environmental governance, considering the various definitional and interpretive challenges that arise, as well as difficulties with understanding the very concept of ‘governance’ itself and how this might be distinguished from the related but distinct concept of ‘environmental governance’. The chapter then explores the principal objective of environmental governance as manifested in the judicial domain.

While multilateral international environmental agreements remain in principle treaties between sovereign states, it needs to be understood that increasingly these treaties are negotiated, adopted and then administered in the context of a framework regime provided by the United Nations system. As such it is important to have an understanding of this system. Tadanori Inomata’s chapter deals with building a foundation for environmental governance with, but not (or at least not necessarily) within, the UN system. It is consequently about both managerial and democratic accountability. The first of these two aspects of accountability relates to the setting of objectives and policy and to management of resources within UN intergovernmental fora; and the second aspect to delivery of output from the UN to the global community, including ways in which to make UN objectives and policies conform to global public interests. Inomata’s chapter explains current management and governance frameworks; identifies salient features and considers gaps and weaknesses, including specifically within the environmental field; and then concludes with a consideration of possible future administrative and managerial foundations and institutional arrangements.

Effective international environmental laws are not adopted, and regimes crafted, by accident. In the modern world there is a bewildering array of institutions to understand the involvement of, meetings to attend, documentation to read and internalize, and formal and informal networks to consider. At the time of publication, the database project on international environmental agreements of the University of Oregon (see iea.uoregon.edu) listed over 1,190 multilateral, over 1,500 bilateral, and over 250 ‘other’, international environmental agreements. The relationships between these instruments, and between these and other instruments that are not considered to be ‘environmental’ in character – as well as the relationships between environmental and ‘non-environmental’ but cross-cutting issue-areas – necessitate considerable study.

All of these things create an increasingly complex maze of issues and processes that negotiators – whether representing governments or other stakeholders – need to be apprised of and need to be prepared to deliberate upon. Sylvia Bankobeza, Elizabeth Maruma Mrema and Kilaparti Ramakrishna provide an overview of the nature of international environmental diplomacy, considering how this has developed over the years to differ from ‘traditional’ diplomacy. They then consider the mechanisms, processes and systems used in the organization of the work of intergovernmental meetings; offer advice on measures that might usefully be taken in the planning for and preparation toward participation in international environmental negotiations; outline some of the challenges commonly experienced with negotiations; and offer suggestions that should enhance negotiating skills.

Diplomats, negotiators and scholars working in the field of international environmental law-making and diplomacy face increasingly complicated challenges related to understanding the overall picture of environmental problems and proffered solutions. They also need to understand how actors, ranging from intergovernmental organizations through governmental and non-governmental entities to individuals, have in the past and will in the future influence the course of environmental protection. Ed Couzens and Melissa Lewis piece together the jigsaw that is the history of environmental concern and law by considering the roles of different people and organizations in the areas of law-making generally; consideration of forestry, fisheries, biodiversity, and pollution; and the drawing of lessons from history.

Regimes cannot be created overnight. It takes time for multifarious interests to be accommodated and for a governance system that is broadly acceptable to be fashioned. Creating a single multilateral environmental agreement is not easy – and nor is creating, and defining the role of, an organization. The history of the creation of the United Nations Environment Programme (UNEP) displays both many of the vagaries of negotiating single treaties and also some special issues related to defining the place within the international system of a new organization. Donald Kaniaru explains how UNEP came into being, and how its special character as an international governance body located in a developing country came into being – a valuable subject for the understanding of international diplomacy and the relative bargaining strengths of states. He then locates this within a discussion of the concept of sustainable development, which Kaniaru believes is able to provide a common agenda for both developed and developing countries. He explains how the foundations for the international community’s acceptance of this concept were laid in 1972, at the UN Conference on the Human Environment; and examines the concept’s subsequent development in international environmental law and the role that UNEP has played in its promotion.

Successful diplomacy needs to be informed by an understanding of the past, if lessons are to be learned and mistakes are not to be repeated. While the everyday minutiae cannot be ignored, there are certain milestones in the history of international environmental law-making that stand out and need to be understood in the overall context. Inevitably, it is these markers that diplomats and scholars alike look to in seeking to understand the international system. After canvassing these, Shafqat Kakakhel briefly reviews states’ responses to environmental challenges over the past six decades, concluding that, although positive signals can be seen, this is nevertheless in the face of overall degradation of the environment. He then looks to the future, making recommendations for how more effective governance might be achieved.

One of the most important features of the development of international environmental law-making and diplomacy has been the shift over time from treaties being created by small groups of law-makers to treaties, and wider regimes, being influenced and promoted by multiple actors, roleplayers and stakeholders. Within this evolution, few changes have been as significant as the rise of the influence of developing countries, the increased understanding of the differences in needs and interests between these and developed countries, and of the ways in which these differences need to be dealt with if poverty is to be alleviated and the environment protected. Debate over these differences and needs has become a feature of most recent negotiations, as is illustrated in several chapters of this book. Tuula Honkonen explains the history of the concept of common but differentiated responsibilities, with examples from different regimes; then canvasses the implications for negotiations of different aspects of the principle that might arise in negotiations; considers how divisions might be overcome; and then concludes with comments on the ultimate importance of the principle.

Mere reading of the texts of international conventions conveys little of the dramas, compromises, concessions and diplomatic skills that go into successful negotiations – nor the dashed hopes, realized fears, optimistic efforts and quiet satisfactions that result. In many cases the adoption of a convention is the beginning rather than the end of truly difficult negotiations. This is especially the case where the convention is in the nature of a framework treaty and some of the most difficult issues are left unresolved, to be the subject of future protocols. One such case was the issue of biosafety under the 1992 Convention on Biological Diversity. Arguably raising issues of the practical application of the principle of common but differentiated responsibilities, alongside practical issues of relative bargaining strengths, the eventual text – although inevitably a compromise – reflects a considerable victory for both the developing world and the nascent precautionary principle. Tewolde Egziabher provides general lessons for international environmental law-making and diplomacy in recounting the difficulties and tensions of the negotiations toward the eventual adoption of the Protocol.

As important as is understanding of the past, it is ultimately toward the future that international environmental negotiators must look. The most recent global international conference was the United Nations Conference on Sustainable Development in 2012 – the ‘Rio+20 Summit’. Although many commentators have expressed disappointment with the results of the Conference, Niko Urho and Ville Niinistö express optimism toward the future and consider how the main achievements of the Conference have initiated various processes that might lead to a more balanced relationship between the different dimensions of sustainable development, especially as even since the Conference, headway has been made toward crafting an agenda for change. Key issues examined by the authors include measures to strengthen the international environmental governance system; the development of a Post-2015 Agenda that both satisfies human needs and respects nature; and the use of ‘green economy’ policies to ensure that the environment and natural resources are a central part of economic decision-making.

Conclusion

The editors of this collection believe firmly that the reader of this book, be that reader an experienced diplomat or a negotiator in training, a professor of international law or a student of legal studies, will benefit from the range of historical episodes and nuances presented and the lessons imparted from the depth of experience. As Tolba and Rummel-Bulska have suggested, the ‘global environment is complex, and those who attempt to formulate international environmental law must perforce be specialists, each dealing in depth with a limited range of problems’ – with the laws these people shape often requiring ‘delicate negotiations and skilful diplomacy to find compromise solutions that satisfy the different political and economic motives of the states they represent’ (Tolba and Rummel-Bulska, 1998: 14). Ultimately, says Bodansky, international environmental law ‘aims to find, not the optimal outcome, but rather the skilful compromise that bridges the gap between competing positions and advances the ball, even if only a little’ – he advocates seeing ‘the discipline of international environmental law, not as a panacea, but rather as an art and a craft’ (Bodansky, 2010: 271).

The collection of chapters is intended to give the reader understanding of the principles of international law, of formal treaty-making requirements, of negotiation techniques, of theoretical explanations, of actual negotiation nuances, and of the history of the development of the law and philosophy of the rise of environmental concern and of efforts to address environmental problems through international law-making – in short, to bring theory and practice, and academic insight and practical experience, together.

Issues canvassed in these chapters include the identification of sources of international environmental law, and the development of its principles and regimes; understanding of the complexity of negotiating in the modern world, and the imparting of practical negotiation skills; the differences between developed and developing countries and how the principle of common but differentiated responsibilities might be used to bring these together. The building of effective international regimes is considered; together with the creation of effective individual treaties; and the different stages of international environmental governance. Further, the importance of learning lessons from history is an ongoing theme, with some chapters focusing on clear explanations of how different historical matters and trends have related to each other; and other chapters explaining single events. Ultimately, however, all of the chapters can be said to have the same theme – finding different ways to explain the past in order to make prognoses and recommendations for the future, in the hope of improving the protection of the environment and the lives of people through better, and better understood, international environmental law-making and diplomacy.

Acknowledgements

The history of this collection of chapters is to be found in the holding in 2004 of the first University of Eastern Finland (previously the University of Joensuu) and United Nations Environment Programme Course on Multilateral Environmental Agreements (see www2.uef.fi/en/unep). The Course has been an annual event since 2004 and has to date seen the training of more than 350 participants (most of these being civil servants or diplomats already negotiating international environmental legal instruments on behalf of governments) from more than 120 countries – a significant network of alumni is being built. The success of the Course would not have been possible without the strong support of the United Nations Environment Programme, the Ministry for Foreign Affairs of Finland and the Ministry of the Environment of Finland, and the University of Eastern Finland – as well as the tireless efforts of numerous individuals and organizations.

In addition to the training of early to mid-career diplomats in negotiation techniques in the environmental field, the organizers of the Course have sought to make a permanent contribution to knowledge through the publication, by the University of Eastern Finland, of an annual book – the International Environmental Law-making and Diplomacy Review. U...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of contributors
• Acronyms, abbreviations and initialisms
• List of treaties
• 1 Introduction: the substance and the structure of international environmental law-making and diplomacy
• 2 An introduction to the sources, principles and regimes of international environmental law
• 3 Basic concepts of treaty law and the treaty-making process
• 4 The problem-solving role of international environmental law, with special reference to water-related problems
• 5 A juridical-conceptual perspective on environmental governance
• 6 Building institutional and managerial foundations for a new structure for environmental governance with the United Nations system
• 7 International environmental diplomacy and negotiations
• 8 Learning from the past: a reflection on the roles of people and problems in the development of international environmental law
• 9 The development of the concept of sustainable development and the birth of UNEP
• 10 An overview of milestones in international environmental diplomacy and suggestions for improved environmental governance
• 11 The development of the principle of common but differentiated responsibilities and its place in international environmental regimes
• 12 The Cartagena Protocol on Biosafety: a personal memoir on its creation, content and implementation
• 13 Future prospects for enhancing sustainable use of natural resources: the role of international environmental governance after Rio+20
• Index