Canada and Agenda
21Canada and Agenda
21
CHAPTER 39
International Legal Instruments and Mechanisms
-- Elizabeth May --
Elizabeth May is the Executive Director of Cultural Survival Canada and the Sierra Club of Canada. The views expressed in this chapter are those of the author who has received input from a number of other stakeholders, and do not necessarily reflect the views of the Projet de Société.
THE NATURE OF THE PROBLEM
Integrating environment and development in future international law instruments is the post-Rio challenge for governments and institutions around the world. International law on sustainable development, however, has not yet developed to the point that it accurately reflects the delicate balance between these two concerns. Consequently, reforms may be needed to current international environmental laws so as to integrate development concerns and to international economic and trade laws to integrate environmental concerns. International law as a whole, should also be reexamined to better promote the integration of environment and development policies.
The participation of all countries in the creation of future international treaties on sustainable development is vital. In the past, many less-developed countries (LDCs) have not been able to adequately participate in this process. Consequently, some earlier international environmental agreements may not reflect or include the concerns or interests of those nations. In the future, financial and technical assistance to LDCs will be necessary, so as to enable them to participate effectively in the elaboration of new laws related to sustainable development, as well as to implement "sustainable development" obligations they have subscribed to by treaty.
PROGRAM AREAS AND OBJECTIVES
Chapter 39 makes clear that the review and development of international environmental law should entail two general purposes. The first is to evaluate and to promote the efficacy of that law. The second is to promote the integration of environment and development policies through effective international agreements or instruments, taking into account both universal principles and the particular and differentiated needs and concerns of all countries. To achieve these ends, four general program areas are identified in the chapter:
(1)Review, assessment and fields of action in international law for sustainable development;
(2)Implementation mechanisms;
(3)Effective participation in international law making; and
(4)Disputes in the field of sustainable development.
The chapter negotiation was not without controversy. But most of the contentious issues did not survive PrepCom IV, including: the possible use of unilaterally set environmental standards as barriers to trade; prevention of deliberate large-scale destruction of the environment (the so-called "environmental crimes" provision); negotiation of a nuclear safety convention; and dispute prevention.
CANADIAN POSITIONS AT UNCED
1.Official Canadian Position
For Canada, as for many countries, this issue was a simple, straightforward issue of marginal importance. Canada did nevertheless, have four specific objectives related to international legal instruments and mechanisms.
(1)Continue to develop progressive standards in the field of environmental international law.
(2)Agree with the establishment of a group of legal experts that would explore ways to improve the efficiency of existing legal instruments in the field of environmental law and identify areas where law could be further developed.
(3)Explore the possibilities of providing technical and scientific assistance in order to help developing countries to participate more efficiently in the negotiation of new conventions, the revision of existing ones and help them respect their obligations arising from these conventions.
(4)Avoid guaranteeing specific financial assistance.
2.Non-Governmental Organizations
Canadian NGO's were not particularly engaged on this issue. However, there were concerns from the environmental NGO community to ensure that international law and accountability keep up with globalization of trade. It is clear that the globalization of trade is a trend which has not yet been completely realized. Many NGO's view trade globalization as the dilution of national sovereignty and ability to regulate the activities of trans-national corporations. As of yet, there are not international laws to replace the lack of accountability at the domestic level.
A number of Canadian NGO's are still pursuing the idea of an international body for the reporting of crimes against the environment. Tom Green of the Inn Nation and Herb Hammond, forest ecologist from British Columbia, have circulated a paper based on the precedent of Nurenberg to begin an international registry for crimes against the environment.
3.Business and Industry
Canadian business and industry provided no specific input at UNCED with respect to this chapter.
4.Indigenous
Indigenous Peoples identified the need for support and recognition of Indigenous Peoples cultural and territorial rights. In any international forum, Indigenous Peoples have always pressed for the recognition of their cultural and territorial rights as the basis of development and their self-determination. Recent amendments to international conventions and declaration as well as legal instruments are to this day still inadequate for garnering mutual respect for both worlds. Indigenous Peoples' rights must be recognized and involved in decision-making and resource management, in the spirit of Agenda 21.
COMMITMENTS MADE BY CANADIANS
1.Legally-binding Documents
None.
2.Political Pronouncements
None.
3.Alternative NGO Treaties and Kari-Oca
NGO Treaties
At the same time as UNCED, two major international events were also held at Rio. One was the International Non-Governmental Organization Forum (Global Forum). At the Global Forum, 1,300 NGOs discussed a number of matters related to environment and development and produced a parallel set of documents: an NGO Earth Charter and 38 Alternative NGO Treaties. None of these treaties cover the subject matter of Chapter 39.
Kari-Oca
The second alternative forum at Rio was the International Conference on Territory, Environment and Development (the Kari-Oca Conference). The Kari-Oca Conference was held immediately prior to UNCED by and for the world's indigenous peoples. Mor than 650 indigenous representatives participated in meetings and cultural events during the conference. They developed and adopted a 109-point Indigenous Peoples Earth Charter. None of the statements in the Earth Charter relate directly to the subject of Chapter 39.
DEFICIENCIES, GAPS AND CONSTRAINTS WITHIN CHAPTER 39
The chapter is inadequate due to the blandness of its language and goals. It does not deal with the specific cases of international law in which environmental and development goals are not integrated. The two spheres of international agreements which tend to represent the environmental and development positions are environmental treaties, such as the ozone protocol, and trade agreements, such as the GATT. The challenge of integrating such agreements is significant and probably more problematic than the chapter and the lack of debate surrounding it would indicate.
As a first level concern, despite a number of international agreements to protect the environment, arguably starting with the first international atmospheric nuclear test ban treaty in 1963, environmental law at the international level is still relatively embryonic. By pushing the balance between environment and development in international treaties at this stage there is a risk that environmental laws will be weakened to accommodate development concerns without a corresponding change in the economic agreements to reflect environmental values.
The chapter would have been improved had there been a fuller discussion of the two solitudes in international law of environmental and trade priorities. It is actually the case that the trade sanctions within the Montreal Protocol for the protection of the ozone layer could be challenged successfully under GATT. The General Agreement on Tariffs and Trade takes no account of the Montreal Protocol in determining what is fair trading practice. The North American Free Trade Agreement does include reference to the Montreal Protocol, Basel Convention on the Control of Transboundary Movements of Hazardous Wastes, and the CITES Convention, but not to the Climate Change or Biodiversity Conventions.
Strengthening the international mechanisms to resolve disputes related to sustainable development agreements at the international level, as suggested in the chapter, is a fascinating possibility. If the term "sustainable development agreement" is intended to encompass trade agreements, substantial progress in developing accountability for transnational behaviour is possible, but the chapter does not address this possibility.
COMPARISON BETWEEN CURRENT CANADIAN GOVERNMENT POLICY AND COMMITMENTS MADE
There were no commitments made by the Canadian government with regard to this chapter. However, to follow up the objectives outlined in Chapter 39 of Agenda 21, Canada has continued to be active since UNCED in the development of several international laws currently under negotiation; to control high-seas fishery depletion and desertification. Canadian government officials have continued to pursue possibilities for international instruments to curb deforestation.
CANADIAN ACTIVITIES EVOLVING THROUGH THE SUSTAINABILITY PROCESS
There have been no major initiatives evolving through Canada's participation at Rio with regard to the subject of Chapter 39. Negotiations for further conventions are relevant, but no institutional response to this chapter can be found either domestically or internationally.
OTHER RELEVANT INTERNATIONAL SUSTAINABILITY-RELATED FORA
United Nations Commission for Sustainable Development
Negotiations with UNEP on desertification and at the UN on high seas fishery depletion.
International Court of Justice
SUGGESTED READINGS AND INFORMATION SOURCES
Brunn‚e, Jutta. "Toward Effective International Environmental Law - Trends and Developments", Paper presented to the Sixth CIRL Conference on Natural Resources Law - Law and Process in Environmental Management, Ottawa, May 13-14, 1993.
French, Hilary F., 1992, After the Earth Summit: the future of environmental governance, Worldwatch Institute, Washington, DC, USA. Worldwatch Institute Paper 107
Gunther, Handl. "Environmental Security and the Global Change: The Challenge to International Law", (1990) 1 Yearbook of International Environmental Law 3.
Gehring, Thomas. "International Environmental Regimes: Dynamic Sectoral Legal Systems", (1990) 1 Yearbook of International Environmental Law 35.
Lang, Winfried. "Diplomacy and International Environmental Law-Making: Some Observations", (1992) 3 Yearbook of International Environmental Law 108.
Sand, Peter. Lessons Learned in Global Environmental Governance, (Washington: World Resources Institute, 1990).
Spector, Bertram, ed., 1992, International environmental negotiation: insights for practice. IIASA, Luxenburg
Information Sources:
United Nations Commission on Sustainable Development, Department of Policy Coordination and Sustainable Development, Room S-3060, United Nations, New York, NY, 10017, USA, tel (212) 963-5959.
Cite as: Projet de société: Canada and Agenda 21.Winnipeg: IISD, 1995. Online. Internet. http://iisd.ca/worldsd/canada/projet/c39.htm.
