MULTILATERAL ENVIRONMENTAL

AGREEMENTS (MEAs)

RGSoI

Dr. Balraj K Sidhu;

IIT Kharagpur

1
Law-Making in International Law
 Premised upon consent of the states
 States remain the primary subjects of international law
Sources of international law: Article 38(1) of the Statute of the International Court
of Justice
 International conventions/treaties
 International custom
 General principles of law recognized by civilized nations
 Other subsidiary means
Statute of ICJ has not laid down any order in which the Court is expected to apply
various sources of international law
VCLT (1969) defines under Article 2(a) defines “treaty” as “an international
agreement concluded between States in written form and governed by international
law”.

2
Unique Treaty Making
 States resort to treaties for the sake of convenience, certainty of law and as required
by the contingencies of a specific issue.
Multilateral Environmental Agreements (MEAs) have a great diversity and most of
them underscore the global character as well as multidimensional nature of
environmental problems.
 . The subject matter of MEAs range from issues such as protection of a specie
(whale) or flora and fauna in general (CITES), cultural and heritage sites (WHC),
regulation of trade of hazardous chemicals and wastes (Basel), air pollution
(LRTAP)and persistent organic pollutants (POPs)to more remote issues like ozone
depletion, climate change and biological diversity.
 The core MEA have come to be categorized into mainly five groups: the biodiversity-
related conventions, the atmospheric conventions, the land conventions, the
chemicals and hazardous wastes conventions, and the regional seas conventions and
related agreements
MEAs on a host of these issues have in fact “changed over time, just as political,
economic, social, and technological conditions have changed over time”
 Law-making on environmental issues is greatly facilitated by treaties due to sense of
urgency as well as scientific uncertainties intrinsically embedded into them. 3
 Thickening Web of MEAs
MEAs have become primary legal method for regulating transboundary
environmental problems - cutting across national boundaries.

New tools and techniques characterize the law-making process: quotas;

ceilings; time-tables

 Web of regulatory framework is thickening – 300 MEAs since 1972

 Substantial inroads into cherished domain of state sovereignty

 Mosaic of law-making reveals void of central law-making institution.

 No overarching framework: ad-hoc & need-based sectoral responses.

 Growth in SECTORAL environmental regulatory framework

4
 Sectoral Law-making
Conservation of Living Resources
 Convention on Wetlands of International Importance Especially as
Waterfowl Habitat (Ramsar), 1971.
 Convention on International Trade in Endangered Species (CITES),
1973.
 Convention on Migratory Species of Wild Animals (Bonn
Convention), 1979 [includes Agreements and MOUs]
 Convention on Biological Diversity, 1992.
Air Pollution
 Long-range Transboundary Air Pollution Convention, 1979.
 Vienna Convention on Depletion of the Ozone Layer 1985; Montreal
Protocol
 UN Framework Convention on Climate Change 1992; Kyoto Protocol
1997.
Chemicals & Hazardous Wastes
 Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes, 1989; Basel Ban 1994.
 Rottardam Convention on the Prior Informed Consent for Certain
Hazardous Chemicals and Pesticides in International Trade, 1999.
 Stockholm Convention on Persistent Organic Pollutants 2000.
Land Conventions :
5
 UN Convention on Combating Desertification, 1994
 Framework Conventions
Special Factors
 Initiatives propelled by a “trigger event”

 Negotiations take place within a limited time- span

 Scientific uncertainty about ‘core’ issue
 Significant differences make ‘consensus’ difficult
 Lack of definitions/use of ‘calculated ambiguity’
 Provides bare framework of principles without concrete obligations.
 Nettlesome details to be worked out later.
 In-built law-making process: convention evolves over a period of time.
 ‘Breathing space’ between parent convention and subsequent Protocols.
 Protocol’s organic link with main convention: provides concrete
targets/quotas/timetable for obligation of the parties.
6
Role of Science
 Unprecedented in international treaty-making.

 Element of uncertainty regarding the core issue

Issues from domestic jurisdiction of states now being

considered as ‘common concerns of humankind’. Do states
act in ‘common interest’?

Full scientific certainty is problematic – ‘precaution’ not

to be used as a ground of non-action. Fear of causing

‘irreversible’ damage.

7
 Complexity & Uncertainty
 Lack of scientific evidence brings uncertainty

 Veracity of claims & counter-claims: evidence.

 Authenticity of evidence: IPCC ‘survey’ of available

literature.

 Capacity of the developing countries to ‘understand’ science.

 Politics of science

8
Political Convenience

 Growth of inspirational, promotional or programmatic statements.

 Devoid of legal effect.
 Explicit reference/ phraseology from instrument/inferred from
circumstances/subsequent conduct.
 Uncertain in application.
 Calculated ambiguity.
 States prefer their own pace and convenience.
 Desire to ensure flexibility.

9
 Preparing for Negotiations
 Razor-sharp understanding of the ‘nature of the game’: learning the rules?

 Penchant for treaties without realizing the ‘process’: intense work,

calculated ambiguity, continuous law-making, year-round meetings,
funding, factoring scientific input, technological feasibility etc.

 Most negotiators have limited awareness of specific ‘sector’ –

familiarity with only ‘cog’ in the machine.

 Unfamiliarity about larger issues – environment & development,

colonial legacy, ‘historical’ contribution of industrialized countries etc.

 Role of ‘institutions’ in treaty-making process not realized:

- ILC, UNEP; UN Specialized Agencies; Scientific Bodies etc.

 Problem of understanding ‘follow-up’ [policy and law-making] needed

at domestic level.