Year XXXIV, 1992, Number 3 - Page 202
From Discord to Accord*
HILARY F. FRENCH
As preparations for the United Nations Conference on Environment and Development (Unced) enter their final stages and negotiators from around the world work to overcome remaining hurdles, it is becoming clear that resolving today’s pressing environmental priorities will require wide departures from diplomacy as usual. The atmosphere, oceans, forests, biodiversity, Antarctica – all are part of the global commons, all are under assault. Stronger international governance can save them, but only if governments forge new patterns of co-operation.
This process of joining forces to combat shared threats is in fact already well under way. To date, more than 170 environmental treaties have been signed, two-thirds or more of these since the UN’s last environmental conference was held in Stockholm in 1972. If all goes as planned in Rio, the more than 100 world leaders expected to be in attendance will add to this list with some of the most sweeping agreements ever put together, including treaties on global warming, the loss of biodiversity, an action plan – Agenda 21 – that targets virtually every other ecological threat on the international horizon, and an “Earth Charter” that will layout basic environmental principles.
Although this progress offers some reason for hope, there remain serious shortcomings in the current system of global environmental governance. If not addressed at the Unced meeting, these could undermine the effectiveness of any treaties or action plans signed either in Rio or elsewhere. The problems include speed (treaties and other types of agreements can take far too long to negotiate, ratify, and implement), enforcement (virtually non-existent at the international level), and money (there is scant provision of the financial and technological assistance that would make it possible for poorer countries to participate in international environmental efforts).
Buried in the avalanche of proposals under consideration at the Earth Summit are a number that would begin to address these shortcomings through far-reaching reform of the treaty system and the UN structure. Nobody expects the conference to resolve the matter once and for all, but it is noteworthy that the process has begun. Legal and institutional reform may not be the most glamorous part of the Unced agenda, but it could prove to be one of the conference’s most enduring legacies.
Forging Stronger Treaties.
The art of negotiating an international environmental treaty takes patience, determination, and more patience. Getting all parties to the negotiating table takes time. Resolving conflicts, identifying common ground, and handling sometimes petty squabbles takes time. Drafting a mutually agreeable document takes time. The whole process can take years and years – time the world can ill afford as environmental problems worsen.
Even after an agreement is signed, achieving ratification by enough national governments for the treaty to have legal force can take years longer. The Law of the Sea Treaty, completed in 1982, still has not received enough ratifications. The 1989 Basel Accord, on the export of hazardous waste, is also languishing as it awaits a quorum of signatures.
One way to speed the treaty-making process along would be to rely more heavily on a voting system based on some form of majority rather than unanimity. For instance, a two-thirds majority could be required, or some share of votes weighted by a combination of GNP and population. To understand the importance of this, imagine how little would be accomplished if every member of the U.S. Senate had to agree on a bill before it could become law. “Qualified” majority voting would also help overcome a propensity for international treaties to get watered down to the level amenable to the most reluctant party to the talks – the least common-denominator effect.
There is already some precedent for this reform in the environmental arena, albeit on a limited scale. Individual treaties sometimes can be updated by a form of majority vote. The majority voting procedures in the International Whaling Commission, for example, made it possible to move from mere regulation of the whaling trade to an absolute ban on harvest, in spite of the vociferous opposition of the key whaling states of Japan, Iceland, and Norway. Also, the European Community (EC) uses such a system to usher through environmental legislation.
It would also be helpful to create a standing international body that negotiates environmental treaties, sometimes using a “qualified” majority voting system. Under existing practice, a new international committee – such as the International Negotiating Committee on Climate Change – needs to be created nearly every time a major treaty is up for discussion. A unified forum could greatly improve the efficiency and dispatch with which global problems are addressed.
Other fields of international relations already have institutions that serve this function. For instance, the General Agreement on Tariffs and Trade (GATT) serves as a forum through which governments continually update the rules of international trade. The International Labour Organisation (ILO) constantly modifies and strengthens the hundreds of international labour standards it has issued on concerns such as workplace safety and child labour. Some agencies set voluntary standards, as the World Health Organisation (WHO) does with air pollution. Though WHO’s standards are not-binding, they are looked to as the international norm. If, for instance, sulphur dioxide levels in London exceeded WHO air quality standards, a group like Friend of the Earth can use this fact to embarrass the government into action.
When countries are reluctant to sign a treaty, the international community can use incentives to encourage participation. For example, in the original deliberations over the 1987 Montreal Protocol on ozone depletion and its subsequent tightening, negotiators granted deferrals to developing countries to get them to commit to reducing their use of the offending chlorofluorocarbons (CFCs). The phase-down was also made less economically onerous for these nations by the creation in 1990 of a $ 240-million fund to help them make the transition to CFC substitutes. Had the treaty not provided for this, key developing countries would not have supported it, meaning that growing CFC use in the Third World likely would have overwhelmed reductions by treaty signers.
In addition to inducements such as the ozone fund, supporters of a treaty sometimes resort to the prod offered by trade sanctions. For instance, the Unites States threatened an embargo against Japan if it refused to participate in the 1982 commercial whaling ban. The Montreal Protocol uses a similar tool, though internationally rather than unilaterally imposed. Parties to the protocol are simply forbidden to purchase CFCs (or products made from them) from non-signatories. This rule negates any incentive to not sign the protocol to make windfall profits.
Even the relatively weak treaties now in force rarely include effective means of ensuring that nations stand by their commitments. Unlike national governments, international agencies do not have police powers to call upon to aid enforcement. In fact, most treaties do not even stipulate sanctions. And partly because there is little enforcement, there is little data on compliance. What little information does exist suggests that while most countries do take their treaty commitments seriously, there is vast room for improvement. For instance, the Norwegian environmental group Bellona has found that Norway, which is widely regarded as a world leader on international environmental issues, is likely to fall short of meeting its commitments in 12 of the 27 major international agreements it has signed, including an agreement to reduce discharges of pollution into the North Sea and an international convention on the preservation of wetlands.
One of the few ways to encourage compliance under the current system is to use peer pressure. To facilitate this, treaties often require nations to report pertinent data, such as sulphur dioxide emissions in the case of acid rain, and on actions they have taken to come into compliance. If this information is made public, environmental groups and others can shine a spotlight on those countries that have not followed through on commitments. For instance, University of Massachusetts political scientist Peter Haas finds that the data-gathering efforts mandated by the treaties for the Baltic and North seas enabled environmental groups, such as Greenpeace, to call public attention to nations that were in violation. Once exposed, these countries improved their records.
Unfortunately, governments often resist making pertinent data readily available. One of the sticking points in the ozone treaty negotiations was over a proposal to require governments to collect and report on their CFC releases. In the ongoing global warming talks, it is not yet clear if governments will heed the lessons of the past by providing for an open exchange and review of emissions data and other critical information.
If the U.N. bodies that administer treaties, known as secretariats, were properly funded and staffed, they could keep tabs on signatories’ compliance and bring breaches to the attention of other governments. The reality is that these offices operate on shoestring budgets and limited authority. Often governments do not submit required information to secretariats. Even when they do, the secretariats generally lack the wherewithal or authority to verify its veracity, much less to independently monitor for compliance.
A notable exception is the secretariat for the Convention on International Trade in Endangered Species (CITES), which has considerable powers and uses them with widely acknowledged effectiveness. It has, for example, the power to request information from countries about alleged lapses and to demand explanations for failure to meet treaty obligations. The CITES secretariat likely owes its strength to an international consensus on the urgency of the problem and a long history of monitoring the wildlife trade by concerned citizens’ groups.
International institutions that have successfully administered agreements in non-environmental fields also serve as useful models for the environmental sphere. Both the United Nations and Council of Europe commissions on human rights have power to monitor compliance and to demand explanations from signatories for reported lapses. The International Labour Organisation also keeps tabs on whether members are complying with its standards. The agency can often generate enough pressure in a first, investigatory stage to bring an errant country into line, making its second stage – a public hearing to explain delinquency – unnecessary.
Representatives from both management and labour actually form part of the governing body of the ILO, through a unique tripartite system in which these groups share equal standing with governments. The human rights commissions and the ILO both rely on citizens’ groups for help in identifying violators.
One missing piece of the international institutional puzzle is a judiciary that could hear charges by a secretariat or an individual that a country is violating its environmental treaty obligations. The International Court of Justice, or World Court, is supposed to play this role; however its involvement has been minimized by the design of most environmental treaties and the practices of many governments. Rather than requiring that countries resort to the World Court whenever there is an unresolvable dispute, most treaties leave it up to the parties involved to decide if they will take that route. Most countries refuse.
Granting the Court more automatic jurisdiction, and giving international organisations and nongovernmental organisations (NGOs) the right to initiate suits, would markedly improve its usefulness. Under these circumstances, enough cases might even be brought to warrant creating a special environmental chamber, as has been proposed to UNCED by the Pentagolate countries – Austria, the Czech and Slovak Federal Republic, Hungary, Italy, and Yugoslavia – and Poland. Though such a course of action might seem a distant possibility, the European Community has already demonstrated the utility of this approach. Countries accused of violating EC laws environmental and otherwise are brought before the European Court of Justice. Although the European Court does not have the power to impose sanctions, the negative publicity caused an international ruling is often sufficient to prompt change.
Occasionally, sanctions will be needed to bring violators into line. The most practical option is trade sanctions, which are prescribed by a growing number of treaties. For example, parties to CITES imposed an international ban on the purchase of wildlife products from Thailand in April 1991 on the grounds that illegal traders were shipping goods such as ivory from Africa, caiman skins from Latin America, and orang-utans and palm cockatoos from Indonesia through that country. The Thai government responded by imposing tougher penalties on wildlife traders and taking other steps to stem the traffic.
A report from the U.S. International Trade Commission in 1991 identifies 19 international environmental agreements that use some form of trade sanction to improve compliance. However, environmentalists are growing concerned that sanctions might be severely limited, if not outright prohibited, by the GATT on the grounds that they unduly restrict free international commerce. The Earth Summit is expected to address this and other conflicts between trade and environmental goals.
Even if they have the best of intentions, poor nations can find it financially or technically impossible to comply with treaties and other agreements. Effective environmental governance thus depends in large measure on providing financial assistance to poorer nations and seeing that the funds are well spent.
The current negotiations toward treaties on global warming and biodiversity loss and on UNCED’s Agenda 21 all hinge in large measure on whether or not the richer governments are ready to make a serious commitment to provide the funds that Third World nations need to meet their obligations. The UNCED secretariat estimates that developing countries will need $ 125 billion in aid per year if they are to follow through on Agenda 21. Implementing carbon limitation goals, biodiversity preservation, and forest protection plans could cost still more. Though nobody expects UNCED to generate this kind of money, some new financing is likely. The question, then: Through what institution should the money flow?
One candidate for this role is the Global Environment Facility (GEF), based in Washington, D.C. The GEF was set up in late 1990 under the joint management of the World Bank, U.N. Environment Program (UNEP), and U.N. Development Program to provide $ 1.3 billion over three years for projects in developing countries designed to address global ecological ills, including climate change, the loss of biological diversity, ozone depletion, and the pollution of international waterways.
Industrial countries look to GEF as the logical institution to manage funds created under any new treaties, as well as the funds needed to implement UNCED’s Agenda 21. Developing countries, however, would prefer any “green funds” to be independent of the World Bank, which they perceive to be controlled by powerful donor nations. Through the early rounds of pre-UNCED negotiations there seemed little room for compromise between the two positions. But now the donors are beginning to acknowledge the need to develop more democratic decision-making procedures for future green funds. Recipient countries, they are coming to see, ought to have more control over the types of projects chosen and other matters concerning the fund’s administration. Rich nations still would like GEF to house these funds – just do so more democratically.
There is a precedent for alternative voting systems in the procedures now in place for the ozone fund, in which industrialised and developing countries have equal weight. Another possibility would be to factor in the size of a country’s ecological assets along with the size of its monetary contribution in determining voting weight. This would recognise that countries like Brazil – rich in biological diversity and tropical forests deserve considerable say in a fund’s management, since they presumably will be at the receiving end of much of these ecologically tied funds.
Besides changing its governance mechanism, the GEF – if it is vested with additional funding authority and if it is to succeed – will also need to distance itself from the World Bank, which has been criticised by NGOs, particularly from the Third World, for working in secret and funding large development projects that do not involve local people in their design or implementation.
International environmental governance today is a diffuse process scattered throughout many different arms of the United Nations. If treaty-making is to be speeded, compliance improved, and funding delivered, the U.N. system itself will need renovating. When the United Nations was created in 1945, environmental matters were not yet on national agendas, let alone the international one. Far-reaching reforms are needed if it is to tackle today’s pressing environmental priorities.
Toward this end, governments and private groups have issued a number of proposed reforms of the U.N. machinery in preparation for the Earth Summit. Governments are nearly unanimous in voicing support for strengthening the one U.N. agency currently charged with environmental affairs – UNEP. It was created with the goal of spurring all the other U.N. agencies to action and has been praised widely for doing a good job with minimal financial resources and power.
Until a budget reauthorization for 1992, UNEP’s annual allocation was smaller than that of some U.S. environmental groups – a pitiful sum given the size of its mission. UNEP’s marginal standing within the U.N. structure poses still more problems. Unlike the specialised agencies such as the ILO and the U.N. Food and Agriculture Organisation that have programs of their own, it lacks regulatory clout and has only a handful of programs to administer, which adds up to little influence over other agencies’ efforts. Instead, UNEP must rely on quiet persuasion to push its agenda – an uphill battle.
While lip service is being paid in pre-UNCED rounds to the idea of strengthening UNEP, few governments seem to have a clear idea of what this would mean. Some favour narrowing UNEP’s priorities and focusing its efforts on what they think it does best, such as gathering data and facilitating treaty negotiation. Others favour upgrading it to specialised agency status. At the very least, its budget is likely to increase moderately. Some NGOs, including a coalition of six leading American environmental groups and the Amsterdam-based World Federalists Movement, favour creating a full-fledged international environmental agency, though they have not found much support for this idea from the official delegates.
One key objective of many of the proposals before UNCED is to merge the U.N.’s environment and development capacities so that the system takes account of the linkages between them, and promotes sustainable development, which is the offspring of such a pairing. Discussion is also centring on which is the appropriate body to monitor follow-up to UNCED to see that effective programs – not just rhetoric – emerge from commitments made in June.
Among other ideas, Bangladesh, France, Norway, and several NGOs have voiced support for creating a sustainable development commission that could monitor compliance with environmental treaties and audit the environmental and development activities of other U.N. agencies. Such a body, which might be modelled on the U.N. Commission on Human Rights, could be open to both official and non-governmental participation. The United States has proposed to UNCED that a U.N. Committee on Environment and Development open to all member states be created to regularly review the follow-up to the Earth Summit.
With all of these proposals, it remains to be seen if governments would be prepared to delegate to any new bodies the muscle required to do the job. A new board is not worth much if it has no clear mandate and no real power.
In the environmental arena, the progress nations have made offers some reason for optimism that co-operative management of shared problems will become the rule rather than the exception as the world heads into what many environmentalists hope will be the “turnaround decade.” One need only look at the world community’s united effort to combat ozone depletion for proof that co-operation can work to head off global environmental problems. Also, while progress on reaching a climate change treaty may appear slow given the urgency of the problem, it has been rapid by historic standards of international diplomacy particularly considering that a mere five years ago, most people around the world had never even heard of global warming.
Creating new forms of global environmental governance is an ambitious undertaking that will certainly not take place overnight – or by June. However, the Earth Summit offers a unique opportunity for the international community to begin facing up to the challenges ahead and implement the institutional reforms required to address them. If UNCED succeeds in creating movement toward these new forms of global environmental governance, it will rightly be viewed as a milestone in the battle to save the planet.