Th e OECD is an economic grouping of industrialized states, not a UN agency. It has twenty-four members, mainly European, but also Canada, Japan, Mexico, South Korea and the United States. Recognizing the economic interdependence of its members, its objectives are to promote growth, help less-developed states, and encourage world trade. On this basis, and because its members undertake to ‘promote the effi cient use of their economic resources’ and in scientifi c and technological fi elds to encourage research, the OECD has been able to develop an environmental programme.209 Its Nuclear Energy Agency has played a signifi cant role in the development of national and international nuclear law in Europe.210
Th e OECD acts through a Council, an Executive Committee of fourteen member states, and various committees, covering, inter alia, the environment, energy, fi sher-ies, and scientifi c and technological policy. Th e Council can make recommendations, or take decisions that bind members if they so agree, and in this role it has provided a forum for crystallization of some important principles that have subsequently been adopted into national and international law. Th e Environment Committee analyses the national environment policies of its members and their economic implications
205 Ch V, para 26. 206 Werksman, 6 YbIEL (1995) 60. 207 See infra, Ch 3, section 3(3).
208 For a detailed assessment see GEF, 3rd Overall Performance Study (2005) and Freestone, in Ndiaye and Wolfrum (eds), Law of the Sea, Environmental Law and Settlement of Disputes, 1105–7; id, in Freestone, Barnes and Ong (eds), Th e Law of the Sea (Oxford, 2006) Ch 16.
209 Article 2, OECD Constitution. 210 Infra, Ch 9.
and makes recommendations on guiding principles.211 It did much early work on fi nding solutions to transboundary pollution problems for which, as early as 1972, it developed the infl uential polluter-pays principle, as well as the principle of ‘equal access’ for transboundary claimants to national remedies, procedures and informa-tion.212 Following the stranding of the Amoco Cadiz oil tanker, an OECD evaluation of the nature of oil-pollution impacts provided better methods of assessing the economic value of environmental loss (see Chapter 7). An OECD recommendation on environ-mental information is aimed at improving the reporting, collection, and dissemin-ation of environmental informdissemin-ation held by public bodies.213 Th is recommendation applies the principles of the 1998 Arhus Convention to all OECD member states. More recently the Fisheries Committee has reviewed policies on sustainable fi sheries and illegal and unreported fi shing, but no lawmaking initiatives or recommended prin-ciples have emerged.
5 international regulatory regimes
() introduction
Oft en referred to as ‘international regimes’, multilateral environmental agreements (MEAs) with their related protocols and soft law have been employed by states and international institutions to provide a regulatory system capable of dynamic evolu-tion.214 Th e strength of the regime model of governance is the opportunity it off ers for multilateral solutions to environmental problems and the negotiated application and development of international legal standards. It enables states to exercise a fi duciary or trusteeship role in the protection of the environment, other species, and future gener-ations. No other model of governance off ers adequate solutions to the problem of con-trolling phenomena of global character, such as global warming or ozone depletion, where no single state’s acts are responsible and where the interests of all are at stake.
While some theorists see international regimes creating ‘epistemic communities’ of experts and interest groups,215 others argue that they off er a new basis for integrating international law and international relations.216
211 See OECD, Environmental Performance Review of OECD Countries (Paris, 1998). Most of OECD’s environment-related recommendations will be found in OECD and the Environment (Paris, 1986).
212 See infra, Ch 5, section 3. 213 Council Rec C(98) 67 (1998).
214 See Gehring, 1 YbIEL (1990) 35; Kimball, 3 YbIEL (1992) 18; Th acher, 1 ColJIELP (1989) 101; Sand, Lessons Learned in Global Environmental Governance (New York, 1990); Young, Demko and Ramakrishna, Global Environmental Change and International Governance (Dartmouth, 1991); Haas, Keohane and Levy (eds), Institutions for the Earth: Sources of Eff ective Environmental Protection (Cambridge, Mass, 1993);
Yoshida, Th e International Legal Regime for the Protection of the Stratospheric Ozone Layer (Th e Hague, 2001) Ch 1.
215 Supra n 18.
216 See Rittberger (ed), Regime Th eory and International Relations (Oxford, 1993); Slaughter, 87 AJIL (1993) 205; Byers, Custom, Power and the Power of Rules (Cambridge, 1999) Ch 2.
Th e application of regime theory to environmental relations can be observed in numerous treaties considered in later chapters, including the 1946 International Convention for the Regulation of Whaling, the 1972 London Dumping Convention (replaced in 1996 by a new protocol), the 1973 Convention on International Trade in Endangered Species, the 1985 Ozone Convention and 1987 Montreal Protocol, and the 1992 Framework Convention on Climate Change and 1997 Kyoto Protocol, as well as many regional agreements. Both the Ozone Convention and the Climate Change Convention have evolved into complex regulatory regimes following regular meetings of the parties, with additional protocols, amendments, adjustments and decisions.217 In order to facilitate this further development most MEAs establish regulatory insti-tutions, usually intergovernmental and autonomous in character,218 but in a few cases this role is performed by existing international organizations such as IMO or the IAEA. Th e autonomous treaty bodies created by these agreements have become the international community’s primary institutional model for the regulation and control of environmental risks. Even when the problems are regional, such as the conserva-tion of fi sh stocks, the allocaconserva-tion of water resources, or transboundary air polluconserva-tion, some form of international management and cooperation will usually off er a neces-sary means for the equitable allocation and conservation of such resources. In the fol-lowing sections we consider the role and operation of these international regulatory bodies.
Whether they are autonomous bodies or part of an international organization, the essential elements of intergovernmental treaty institutions are threefold. First, and most importantly, the parties must meet regularly. Conferences or meetings of the parties (COPs/MOPs) may be provided for in the treaty itself, or may be convened by the UN or one of its specialized agencies, or by a commission established to manage the treaty. It is this ongoing role which institutionalizes these gatherings. Second, it will usually be the responsibility of the parties to keep the relevant treaty under review and take whatever measures they are empowered to adopt to further its object and purpose. Some treaties, usually described as ‘framework’ or ‘umbrella’ treaties, are specifi cally designed to facilitate further development through the addition of proto-cols, annexes, additional agreements, amendments, decisions, or recommendations which give detailed content to the outline legal regime created by the treaty.219 COPs are usually the forum in which these measures are negotiated and adopted, and it is in this sense that they are lawmaking bodies. Th ey must therefore have power to adopt the necessary measures. Th ird, they will usually be assisted by expert bodies provid-ing scientifi c, technical and legal advice where appropriate. Th ese bodies may be the
217 See infra, Ch 6.
218 Churchill and Ulfstein, 94 AJIL (2000) 623; Brunnée, 15 LJIL (2002) 1; Ulfstein, in Bodansky, Brunnée and Hey, Handbook of IEL, 878.
219 For example the 1973/78 MARPOL Convention, the 1985 Ozone Convention and the 1992 Climate Change Convention all provide for the adoption of annexes and protocols containing more detailed rules.
Th e 1982 UNCLOS is not a framework agreement in this sense, but it does envisage further elaboration in other ways: see Boyle, 54 ICLQ (2005) 563–84.
source of recommendations for further regulation, or they may be concerned with treaty implementation, or they may have other functions. Additionally, some treaty bodies also have a responsibility for supervising compliance with the treaty regime, but this is not a necessary feature of a lawmaking agreement.220
In general, eff ective treaty institutions are those which combine political direction and inclusive, transparent, informed decision-making processes with the availability of technical, fi nancial, and capacity-building support for developing state parties from UN specialized agencies, the Global Environment Facility, or developed states.221 In all these respects environmental treaties have been notably innovative. Not all such bodies have been a success, however. Some lack a wide-enough remit, or suffi cient resources.
In other cases a weakness has been the inability to ensure the full participation of all the states most closely concerned. Rather than any failure to ensure compliance with agreed standards of environmental protection, where MEA institutions are most likely to fail is in reaching consensus on the more stringent measures that may be needed to tackle environmental problems eff ectively, such as climate change. Such bodies are oft en open to the criticism that their decisions represent only the lowest common denominator of agreement: the conventions on toxic chemicals considered in Chapter 8 are good examples. Th ose failings are the product of political choice, or the lack of adequate political commitment, rather than of inherent institutional weakness.
In that respect they are no diff erent from the United Nations, or from any of the other political institutions considered earlier in this chapter. Th us a commitment to a multi-lateral approach may in some cases prove an obstacle to stronger action at international level. Th e International Maritime Organization, whose record was considered above, is perhaps the best current example of this phenomenon. Th e true role of such bodies may in some cases be closer to legitimation of policies acceptable to the relevant industry than to acting as a trustee for the interests of the environment. For the same reasons, it does not follow that replacing the present fragmented structure of treaty supervi-sion with a single global environmental organization would necessarily improve the eff ectiveness of international environmental regimes. As one experienced participant observes, ‘each IEA [international environmental agreement], regardless of how super-fi cially similar, develops its own unique sense of what is politically possible’.222