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“To Treaty or Not to Treaty?” A Survey of Practical Experience

Published online by Cambridge University Press:  28 February 2017

Peter H. Sand
Peter H. Sand*
Affiliation:
Environmental Affairs, World Bank Legal Department
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Type
Environmental Law: When Does it Make Sense to Negotiate International Agreements?
Information
Proceedings of the ASIL Annual Meeting , Volume 87 , 1993 , pp. 378 - 383
Copyright
Copyright © American Society of International Law 1993

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References

1 March 3, 1973, 983 UNTS 243, reprinted in 12 ILM 1085 (1973).

2 Resolution Conf. 2.1, “Financing of the Secretariat and of meetings of the Conference of the Parties” (San José Costa Rica, March 1979), CITES: Proceedings of the Second Meeting of the Conference of the Parties, Vol. I, pp. 31–35 (1980)Google Scholar.

3 CITES: Proceedings of the Second Meeting of the Conference of the Parties, Vol. I, pp. 88–91 (1980)Google Scholar.

4 Art. XI (3)(a), Amendment to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, adopted June 22, 1979, entered into force April 13, 1987; Wolfgang E. Burhenne & Odile Seidel (Eds.), International Environmental Law! Multilateral Treaties 973: 18/A/l.

5 Pledge contributions as of December 31, 1992, included $823 million for the core fund and $327 million of cofinancing; see Sand, Peter H., Di Leva, Charles E. & Osterwoldt, Ralph U., World Bank, 3 Yb. Int'l Env. L. (fothcoming, 1993)Google Scholar. Negotiations for GEF replenishment in the period after 1993 are now under way.

6 Resolution No. 91–5 of March 14, 1991, Global Environment Facility, and Annexes A–D, reprinted in ILM 1735(1991).

7 Intergovernmental Negotiating Committee for a Framework Convention on Climate Change, Report of the Seventh Session (New York, March 1993), and Doc. A/AC.237/26.

8 Preparatory Committee for the United Nations Conference on the Human Environment, Methods to Expedite the Adoption and Implementation of International Rules and Standards for Environment Protection, A/Conf.48/PC(lI)/CRP.3, prepared by the FAO Legal Office (February 1971).

9 Contini, Paolo & Sand, Peter H., Methods to Expedite Environment Protection: International Ecostandards, 66 AJIL 37 (1972)Google Scholar.

10 International Electrotechnical Commission & International Organization for Standardization, Directives: Procedures for the Technical Work, Part 1, at 14–23 (1989); see Verman, L. C., Standardization: A New Discipline (1973)Google Scholar; and Hunter, Roszell D., Standardization and the Environment, 16 Int-L Envtl. Rep. 185 (1993)Google Scholar.

11 See, e.g., Annex Ill/A of Council Directive 80/779/EEC of July 15, 1980 (1980 OJ L 229) on air quality limit values and guide values for sulphur dioxide and suspended particulates; as amended by Council Directive 89/427/EEC of June 21, 1989 (1989 OJ L 201).

12 See the comment, North American Fur Industry Fights to Undercut EC Regulation, 41(3) Animal Welfare Ins. Q. 4 (1992), referring to Council Regulation 3254/91/EEC of November 4, 1991 (1991 OJ L 308), and the work of ISO Technical Committee 191.

13 Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, adopted March 22, 1989, reprinted in 28 ILM 657 (1989).

14 UNECOSOC Res. 645 G (XXIII), April 26, 1957, as amended, ST/SG/AC.10/l/Rev.8 (1993).

15 See Jones, Wordsworth F. & Yater, Marceil D., Hazardous Substances, in Sand, Peter H. (Ed.), The Effectiveness of International Environmental Agreements 310 (1992)Google Scholar.

16 Committee of Experts on the Transport of Dangerous Goods, Seventeenth Session (Geneva, December 1992), ST/SG/AC.10/R.354 (1992).

17 World Health Assembly Resolution 28.65 (1975); see Kay, D. A., The International Regulation of Pharmaceutical Drugs, ASIL Studies in Transnational Legal Policy, No. 14 (1976)Google Scholar.

18 May 26, 1971, 956 UNTS 4. Though the Convention was initially adopted under the auspices of the European Free Trade Association (EFTA), several non-EFTA countries have also adhered.

19 Organization for Economic Cooperation and Development, C(81)30, C(83)95, C(87)90, C(89)23, and C(90)163; see Jones & Yeater, supra note 15, at 322.

20 See Leive, D. M., International Regulatory Regimes: Case Studies in Health, Meteorology and Food, Vol. II, 375–541 (1976)Google Scholar; Kay, D. A., The International Regulation of Pesticide Residues in Food, ASIL Studies in Transnational Legal Policy, No. 13 (1976)Google Scholar; and Dobbert, Jean Pierre, Decisions of International Organizations—Effectiveness in Member States: Some Aspects of the Law and Practice of FAO, in Schwebel, Stephen M. (ED.), The Effectiveness of International Decisions 206–76, at 227 (1971)Google Scholar.

21 See Eric Christensen, Pesticide Regulation and International Trade, 32(9) Environment. November 1990, at 2, highlighting the question of transparency and participation in the Commission’s procedure.

22 Adopted by FAO Conf. Res. 10/85, Nov. 28, 1985.

23 “London Guidelines,” adopted by UNEP Governing Council Decision 14/27, June 17, 1987, superseding the “Provisional Notification Scheme for Banned and Severely Restricted Chemicals,” Decision 12/14, May 28, 1984.

24 See the report of the Fourth FAO/UNEP Joint Meeting on Prior Informed Consent (Geneva, Feb. 1992); a formal interagency Memorandum of Understanding was signed in October 1992. For critical analysis of the program, see Paarlberg, Robert L., Managing Pesticide Use in Developing Countries: The Limits of International Cooperation, in Haas, Peter M., Keohane, Robert & Levy, Marc (Eds.), Institutions for the Earth: Sources of Effective International Environmental Protection 309 (forthcoming 1993)Google Scholar.

25 Council Regulation 2455/92/EEC of July 23, 1992 (1992 OJ L 251), and amendment proposal COM (93) 120 of March 25, 1993.

26 U.S. Environmental Protection Agency, Pesticides Export Policy, 58 FR 9062 (February 18, 1993).

27 At the same time, there was a notorious lack of national controls over transnational movements of chemicals. E.g., strict regulations for the registration, labelling and marketing of pesticides are laid down in Germany’s “Plant Protection Act” (Pflanzenschutzgesetz) of September 15, 1986, Bundesgesetzblatt 1/1986, No. 49, p. 1505; however, Articles 11(1) and 20(3) of the Act specify that “these provisions do not apply to plant protection products destined for export.” According to the 1988 UN/ECE Annual Review of the Chemical Industry (ECE/CHEM/75, United Nations: New York 1990, pp. 132–33), German production of disinfectants, insecticides, fungicides, weed killers, anti-sprouting products, rat poisons and similar products in 1986 amounted to 144.947 million metric tonnes—of which 144.590 million metric tonnes were exported! The “strict” German regulations would thus be applicable to less than 0.25% of the pesticides made in Germany.

28 Section 19.38 of Agenda 21, as adopted by the Rio Conference, merely calls for “possible mandatory application” (by the year 2000) of the “prior informed consent” procedure, through legally binding instruments; Report of the United Nations Conference on Environment and Development, A/CONF.151/26/Rev. 1, vol. I, p. 323 (1993).

29 UNEP, Recommendations of the Ad Hoc Working Group of Experts on the Amended London Guidelines, Third Session (Geneva, January 1993).

30 See Sand, Peter H., International Law on the Agenda of the United Nations Conference on Environment and Development: Towards Global Environmental Security?, 60 Nordic J. Int’l L. 5, at 10–11 (1991)Google Scholar.