Royal Institute of International Affairs Global Environmental Institutions

This report has been prepared for the Department of Environment, Transport and the Regions (UK) by Joy Hyvarinen and Duncan Brack, Energy and Environment Programme, Royal Institute of International Affairs (Chatham House).

The Royal Institute is an independent research institute which promotes the rigorous study of international issues and does not express opinions of its own. The views expressed in this report are the responsibility of the authors and may not represent the views either of RIIA or DETR.

The full text of this report is available on RIIA’s web site, at www.riia.org/Research/eep/eep.html

An expanded version of the report will be published by RIIA and Earthscan in early 2001.

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Royal Institute of International Affairs

GLOBAL ENVIRONMENTAL INSTITUTIONS Analysis and options for change

Report prepared for Department of the Environment, Transport and the Regions (UK) by

Joy Hyvarinen, Associate Fellow Duncan Brack, Head of Programme

Energy and Environmental Programme Royal Institute of International Affairs 10 St James Square, London SW1Y 4LE, UK www.riia.org/Research/eep/eep.html [email protected]

September 2000

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Contents

Page

Summary 6 1 Features of a structure for effective global environmental governance 6 2 Global environmental institutions: the current structure 7 3 Comparison of the existing global environmental governance system with the features identified in Section 1 8 4 Options for strengthening global environmental institutions 9

Introduction 12

1 Features of a structure for effective global environmental governance 14 1.1 Transformational leadership 15 1.2 Clear and early identification of problems 16 1.3 Identification and assessment of response options and management objectives 17 1.4 Effective implementation at international level 17 1.5 Coordination of activities 18 1.6 Effectiveness of activities 18 1.7 Policy integration 19 1.8 Mobilisation of private sector resources 19 1.9 Transformation of the traditional industrialised-country development model 20 1.10 International equity 20 1.11 Legitimacy 20 1.12 Institutional adaptability: innovation and learning 21

2 Global environmental institutions: the current structure 22 2.1 Background 22 2.2 The Commission on Sustainable Development 23 2.3 The Economic and Social Council 25 2.4 The UN General Assembly 27 2.5 The International Court of Justice 28 2.6 The UN Environment Programme 29 2.7 UN interagency coordination 32 2.8 Multilateral environmental agreements 32 2.9 The Global Environment Facility 34 2.10 The World Bank and the IMF 35 2.11 The World Trade Organisation 36

3 Comparison of the existing global environmental governance system with the features identified in Section 1 38 3.1 Transformational leadership 38 3.2 Clear and early identification of problems 38 3.3 Identification and assessment of response options and management objectives 38 3.4 Effective implementation at international level 39 3.5 Coordination of activities 41 3.6 Effectiveness of activities 42 3.7 Policy integration 43 3.8 Mobilisation of private sector resources 43

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3.9 Transformation of the traditional industrialised-country development model 43 3.10 International equity 44 3.11 Legitimacy 45 3.12 Institutional adaptability: innovation and learning 46 3.13 Comparisons: conclusions 47

4 Options for strengthening global environmental institutions 49 4.1 National governments 50 4.2 Integration in the macroeconomic agenda 51 4.3 Multilateral environmental agreements 52 4.4 Commission on Sustainable Development 53 4.5 UN Economic and Social Council 53 4.6 UN General Assembly 54 4.7 UN Environment Programme 55 4.8 UN Trusteeship Council 56 4.9 Action by groups 57 4.10 A new global environmental court 58 4.11 A new global environmental organisation 59 4.12 Conclusions: a road-map for reform? 60

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Global Environmental Institutions Analysis and options for change

Summary

The purpose of this report is to review strengths and weaknesses in the existing structure of global environmental governance and to identify options for change for further consideration.

1 Features of a structure for effective global environmental governance

An effective global environmental governance structure needs to enable, support and encourage policy- and decision-making leading to an effective response to environmental management needs which require (or benefit from) a response at the global level. The management goals of an effective structure include: avoiding further harm, in particular irreversible harm, to the natural environment; halting and reversing negative trends; repairing damage; and generating positive trends.

Global dialogue, leading to action that takes into account the needs of both developing and developed countries, is an essential prerequisite for effective global environmental governance. An effective global environmental governance structure must be conducive to such a dialogue. In order to enable an assessment of the existing global environmental governance set-up, we identify twelve key features which an effective structure should possess:

1. Transformational leadership Today’s environmental challenges require action on an unprecedented scale, including fundamental rethinking of the policies that have organised industrialised economies. To generate this level of effort, transformational leadership – leadership that is capable of bringing about fundamental change through action that is perceived as legitimate – is required.

2. Clear and early identification of problems Cost-effective response action requires early identification of problems, root causes and likely future trends. Science and an effective science-policy interface are key components.

3. Identification and assessment of response options and management objectives Problem identification needs to be followed by identification and assessment of response options, which includes: addressing the policy implications of scientific knowledge; assessment of costs and benefits, leading to choices among response options; and analysing and deciding on the appropriate level for action (local, national, regional or global).

4. Effective implementation at international level Including negotiation of new multilateral environmental agreements (MEAs) where necessary, or agreement on non-binding instruments (e.g. guidelines or action plans); effective implementation of MEAs; and successful operation of dispute resolution, compliance and enforcement mechanisms. Any international body with new or enhanced enforcement powers in the area of environmental governance would only have legitimacy if it was based on a genuine North–South consensus.

5. Coordination of activities Activities must be coordinated; they should identify interlinkages, capture synergies, and be focused. This relates to national governments and national ministries just as much as it does to UN-level and other intergovernmental bodies. However, it should not be assumed that coordination for its own sake

Page 6 Royal Institute of International Affairs Global Environmental Institutions is necessarily desirable. It needs to be clear for what purpose coordination takes place, and in some instances, focus and results orientation may be more important.

6. Effectiveness of activities Activities must be prioritised, ensuring efficiency and good use of resources. This applies to UN agencies and field-level project or programme implementation, and also to efficiency in intergovernmental policy and decision-making, i.e. good use of negotiating time and resources.

7. Policy integration Achieving the integration of environmental considerations into all other policy areas, in particular economic policy, is one of the main challenges of an effective global environmental governance system. Once again this is as true at national level (where an effective global structure can provide an important driver) as it is at global level, in international financial and trade institutions.

8. Mobilisation of private sector resources Most international agencies, or MEAs, or even national governments, achieve little unless they also affect the ways in which the private sector – producers and consumers – operate. When producers are reluctant to act, consumers can often provide the impetus for change.

9. Transformation of the traditional industrialised-country development model The system needs to have the capability to address issues with far-reaching implications for lifestyles and national economies in all countries. There is a need for fundamental modernisation of resource use patterns, in particular energy use, leading to a transition to much less resource-intensive consumption and production.

10. International equity The provision of financial resources, technology transfer and capacity-building assistance is a prerequisite for ensuring effective action in many cases of environmental stress. An effective structure also needs to take into account the historical responsibility of industrialised countries for global pollution levels and the development priorities of developing countries.

11. Legitimacy This includes equitable representation and decision-making processes that do not discriminate against developing countries or other groups of countries; effective mechanisms that enable contributions by non-governmental actors; and transparent decision-making processes, including access to information.

12. Institutional adaptability: innovation and learning An effective global environmental governance structure needs to identify new ways of addressing old problems, and ways of addressing problems that are entirely new in nature. Learning must take place continuously, and include the ability to respond to new threats and to abrupt, non-linear change.

2 Global environmental institutions: the current structure

This section provides an overview of the existing structure and performance of global environmental institutions, covering: · The main UN bodies concerned with, or of strong relevance to, global environmental governance: the Commission on Sustainable Development, the Economic and Social Council, the UN General Assembly, the International Court of Justice, the UN Environment Programme and the various means of interagency coordination.

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· Multilateral environmental agreements. · International financial and trade institutions, which clearly have a considerable environmental impact: the Global Environment Facility, the World Bank and the International Monetary Fund and the World Trade Organisation.

This background information is not summarised here; for details, see the full report.

3 Comparison of the existing global environmental governance system with the features identified in Section 1

After comparing the existing global environmental governance structure with each of the twelve features identified above, we conclude that some key elements, or perhaps parts of key elements, of an effective global environmental governance structure do appear to be in place. However, there are also significant gaps in relation to important features. It may be possible to address some of these within the existing structure, but some inadequacies may require restructuring or further development of the overall structure. In particular, the following inadequacies are most apparent:

· There is a need to strengthen the existing global environmental governance structure in relation to assessment and problem identification. This may not require major institutional changes; UNEP is already playing a key role. However, there is a need to enhance existing capacity for assessment and problem identification, in particular through increased funding. Among other things, there is a need to strengthen the capacity to address interlinkages.

· The existing institutional structure does not provide a clear location or locations for identification and assessment of response options and management objectives. It is not clear where and how in the existing structure integrated assessment functions can be followed by identification and assessment of response options, assessment of their costs and benefits and choice of appropriate response options, followed by action.

· There is a need for activities, including decision-making in international forums, to be more focused and efficient. There is significant scope for enhancing efficiency within the existing global environmental governance structure. Some aspects can be addressed through better coordination at the national level, leading to more coherent government engagements in international policy- and decision-making processes. In addition, better use should be made of existing opportunities for both intergovernmental and inter-agency coordination. The new Environmental Management Group may come to have a particularly important role.

· There is an obvious and urgent need to increase support to developing countries, which could include increasing funding to the GEF. Industrialised countries need to address the sense of disillusionment many developing countries have concerning industrialised country implementation of Agenda 21 commitments. There is also a need to take into account the fact that the proliferation of international demands has created a particularly heavy burden on developing countries, which means that they need increased support for both policy implementation and participation in international negotiating processes.

· Some issues may require institutional development or restructuring, possibly on a relatively major scale. There seem to be gaps in the existing system that relate to functions that are essential to an effective global environmental management system. Specifically, the existing structure does not provide the best framework for considering and acting on the policy implications of knowledge.

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· The record of policy integration, at national, regional and international levels, is poor. Despite some successes, national environment ministries and agencies possess neither the political influence nor the resources necessary to implement sustainable development strategies across all areas of government activity; and the same problem is repeated amongst international institutions.

4 Options for strengthening global environmental institutions

A range of specific options for strengthening the structure of global environmental governance are considered. None of these options are mutually exclusive, and many combinations are possible. The following considerations are relevant to all options:

· There are expectations that the tenth anniversary of the Rio Conference – Rio plus Ten – in 2002 will lead to some institutional change in the areas of environment and sustainable development.

· So far, proposals to strengthen the global environmental governance structure have emerged mainly from industrialised countries. If discussions are to continue, there is a need to seek the views of developing countries at an early stage, in order to develop a common agenda based on a genuine dialogue.

· This report focuses on strengthening the global environmental governance structure. However, changes in environmental governance cannot be undertaken without taking into account the governance structure in related areas, such as development.

· The feasibility of advancing particular options will depend on developments in other areas, including UN reform.

The following specific options are considered:

1. National governments Conflicts between different international bodies (e.g. the WTO and MEAs) ultimately reflect conflicts between national ministries, and a lack of coherence between policy objectives. Greater efforts need to be made at the national level to ensure coordination in advance of international meetings and policy- making processes. Ideally, national coordination of negotiating approaches and implementation should take place on a continuous basis, involving all relevant government agencies. Input from civil society stakeholders should be part of the process.

2. Integration in the macroeconomic agenda One of the priorities for strengthening the global environmental governance structure must include wider and deeper integration of environmental considerations in the international financial and trade institutions – more effectively harnessing their operations to the pursuit of sustainable development. As the interaction between economic activity and the environment is more fully understood, and as the scope of these institutions’ (particularly the WTO’s) activities grows, the interface between them and environmental institutions is a matter of growing concern.

3. Multilateral environmental agreements Reinforcing linkages among MEAs is an obvious route towards strengthening the global environmental governance structure. Joint meetings of heads of secretariats, possible co-location of secretariat functions, greater cooperation in areas such as reporting and verification, or approaches to the GEF, and the possible development of ‘umbrella’ conventions may be avenues worth exploring.

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The UN Convention on the Law of the Sea provides a possible model, as it succeeded – up to a point – in bringing coherence to the existing fragmented international and regional agreements in the oceans area, while providing scope for further development.

4. UN Commission on Sustainable Development Strengthening the CSD could include narrowing its focus to a more limited number of issue areas, where it can add value. Another route is ‘upgrading’ the CSD in some way – for example, by linking it more closely with the main ECOSOC debates or the General Assembly debate on environment and sustainable development. This could even involve folding the CSD into one of the other organs. The CSD could also be the appropriate forum for further development of the global public policy networks.

5. UN Economic and Social Council ECOSOC’s broad mandate, encompassing economic, social, human rights and other issues, could provide a basis for integrated and comprehensive institutional development. However, the political scope for adaptability may be limited in light of ECOSOC’s less than prominent role in the past.

6. UN General Assembly The UN General Assembly debates on environment and sustainable development could provide an opportunity to provide overall direction to the international system, indicate broad priorities and address overlaps and unclear relationships; one approach could be to make greater use of the Assembly’s consideration of the report of the UNEP Governing Council. The Assembly could also develop its subsidiary structure.

7. UN Environment Programme The Global Ministerial Environmental Forums provide a possible route for considerable strengthening of the global environmental governance structure, particularly if they can achieve effective, results- oriented ministerial deliberations, providing added value. Preparations at the national level would be important, including coordination with all relevant ministries; one possibility might be to explore the feasibility of expanding future Forums to include other ministers.

A limiting feature in terms of adaptability is UNEP’s nature as a ‘programme’, rather than a decision- making organisation, and its current focus on a specific set of tasks in the environmental area. It may be possible to reinforce this within the existing structure, but it may be more effective to consider the possibility of making UNEP a specialised agency of the UN. Greater coordination with the GEF, possibly even integration of the GEF in UNEP, is another possibility.

8. UN Trusteeship Council In his 1997 report on UN reform, the Secretary-General suggested that the Trusteeship Council could be reconstituted as the body through which UN member states would exercise their collective trusteeship for the global environment and common areas such as the climate, oceans and outer space.

9. Action by groups Regional blocs may provide a more effective forum than wider international institutions for dealing with environmental challenges, particularly in terms of policy integration, and may also help to develop constructive leadership at a the wider international level. The G8 may provide a limited forum for ‘like-minded’ countries to develop and argue for a reform of environmental institutions.

10. A new environmental court Proposals to replace or supplement the International Court of Justice with a new World Environment Court have in general failed to explain how they could improve upon the high standing of the ICJ and

Page 10 Royal Institute of International Affairs Global Environmental Institutions its environmental chamber. Incremental reform of the ICJ, together with greater development of UNEP and MEAs’ non-compliance systems and implementation capacities, may be worth pursuing.

11. A new global environmental organisation Many proposals for a new World Environment Organisation have been put forward in recent years, but have suffered from a significant lack of detail and a failure to explain why the creation of a new global environmental organisation would make any difference to the underlying problems of a lack of resources, a lack of political will and inadequate policy integration. Nevertheless, it may be the case that a new institution would develop in an evolutionary, rather than revolutionary way, through the transformation of UNEP, alongside other reform options.

Conclusions: a road-map for reform? If the international community is serious about addressing the failures of the current system of global environmental governance outlined in this report, some reform of the current set-up is required. The existing system, although it is not without its successes, is failing to cope adequately with the challenge of moving the world on to a path of environmentally sustainable development.

It is not the purpose of this report to argue for any particular option or set of options. But the debate so far (such as it is) has tended to revolve the ‘big bang’ solution of creating a major new institution, and there are alternative routes to enhancing global environmental governance. An initial set of relatively modest steps, for example (better national and international coordination – particularly making use of the Global Environmental Ministerial Forums, greater linkages between MEAs, greater resourcing for UNEP, more imaginative use of ECOSOC and UN General Assembly debates, and development of global public policy networks within the CSD) could be accompanied by debate on more ambitious medium-term proposals (such as the development of MEA ‘clusters’ or ‘umbrella conventions’, some exploration of common non-compliance and dispute settlement systems, the promotion of UNEP into a specialised UN agency, accompanied by a possible closer relationship with the GEF, and possible reconstitution of the UN Trusteeship Council). In the longer run, all these steps could lead to a more fundamental reform of the international system. This may or may not end with the creation of a new World Environment Organisation; they are worth pursuing for their own ends.

Whatever the options chosen, it should be remembered that the structure of institutions forms only one part of global environmental governance. Getting the institutional structure right is an important – even an essential – part of the process of developing environmentally sustainable economies and societies, but it is not the only one, and in itself it is insufficient. At the root of the changes we have outlined in this report lies the need for political will; without that, no institutional reform can move the world very far down the road towards sustainable development.

This report has been prepared for the Department of Environment, Transport and the Regions (UK) by Joy Hyvarinen and Duncan Brack, Energy and Environment Programme, Royal Institute of International Affairs (Chatham House). The Royal Institute is an independent research institute which promotes the rigorous study of international issues and does not express opinions of its own. The views expressed in this report are the responsibility of the authors and may not represent the views either of RIIA or DETR. The full text of this report is available on RIIA’s web site, at www.riia.org/Research/eep/eep.html. An expanded version of the report will be published by RIIA and Earthscan in early 2001.

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Introduction

The world’s first major international environmental conference, the United Nations Conference on the Human Environment, took place in Stockholm in 1972. Its main aim was to set guidelines for the future handling of environmental issues by the international system, and one of its outcomes was the creation of UNEP, the UN Environment Programme.

Twenty years later, in 1992, the United Nations Conference on Environment and Development (UNCED), the ‘Earth Summit’, took place in Rio de Janeiro. Unique in size, scope, level of participation and process, UNCED was designed to act as a catalyst and focus for injecting the concept of sustainable development into international institutions and national governments around the world. As with Stockholm, one of its main outcomes was the creation of a new institution, the Commission on Sustainable Development.

Despite these conferences and the decisions they reached, the global environment is still deteriorating. Despite some successes, it is clear that, as UNEP’s Global Environmental Outlook 2000 report stated, ‘the global human ecosystem is threatened by grave imbalances in productivity and in the distribution of goods and services’, and ‘the world is undergoing accelerating change, with internationally coordinated environmental stewardship lagging behind economic and social development’.1

A survey of emerging issues carried out among scientist for GEO 2000 listed the top three environmental threats as pollution and scarcity of water resources (57%), climate change (51%) and deforestation/desertification (28%). Just behind, however, came problems arising from poor governance at national and international levels (26%).2 It is clear that systems of national and international governance are failing to cope with deep-rooted problems of environmentally unsustainable development.

The ‘Rio plus Ten’ conference scheduled for 2002 is designed to review the progress made towards the aims set out at UNCED ten years before. Although its agenda, and even its location, is not yet settled, inevitably it will contain some discussion of the performance of existing international environmental institutions, and quite possibly proposals for change. Even the relatively less important ‘Rio plus Five’ conference in June 1997 saw proposals for the creation of a new World Environment Organisation, and the same suggestion has been made in other forums.

The purpose of this report is to provide the background to this debate: to review the strengths and weaknesses of global environmental governance and to set out a range of options for reform of the current system of international environmental institutions. We aim to address both long-term institutional requirements for effective environmental governance, and short-term constraints on the practicability of different options for change.

It should be borne in mind that the creation of effective global structures or institutions form only one part of the package of responses required for successful global environmental management. ‘Global environmental governance’ comprises two overlapping and closely intertwined components: the system, which encompasses a very broad range of activities and processes; and the structure, which

1 UNEP, Global Environmental Outlook 2000 (London: UNEP/Earthscan, 1999), p. xx. 2 Ibid., p.334. Two hundred environmental experts, including many research scientists, in more than fifty countries, were surveyed. The top region for citing poor governance was Latin America, followed by Africa and Asia.

Page 12 Royal Institute of International Affairs Global Environmental Institutions houses the system. This report focuses on the structure, though of course this needs to be considered in the context of how well it performs in promoting and managing effective global environmental management.

The report is divided into four main sections: · Section 1 identifies twelve features of an effective structure of global environmental governance. · Section 2 briefly describes the existing structure of global environmental institutions. · Section 3 compares the existing structure with the features identified in Section 1. · Section 4 considers eleven options, or sets of options, for strengthening the structure of global environmental institutions.

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1 Features of a structure for effective global environmental governance

Systems of environmental governance around the world are not coping well with the challenges to the integrity of the natural environment posed by the current development of societies and economies. As a discussion paper prepared by the Executive Director of the United Nations Environment Programme (UNEP) for the Global Ministerial Environment Forum in 2000 argued, ‘gradual improvements to the environment are increasingly regarded as insufficient to meet the commitments made in Rio de Janeiro eight years ago.’

The paper highlighted some of the social and economic repercussions of the deterioration of the environment: · Unsafe water and poor sanitation cause an estimated 80% of all diseases in the developing world; the annual death toll exceeds five million, of which more than one-half are children. · World-wide, more than one billion urban residents are exposed to health-threatening levels of pollution; in eleven East Asian cities alone, air pollution causes more than 50,000 premature deaths and 400,000 new cases of chronic bronchitis per year. · In 1998, an estimated 25 million ‘environmental refugees’ emerged as a result of weather-related disasters. · Global damage from natural disasters was estimated at US$120 billion for the two years 1997 and 1998. · Desertification and drought affect more than 900 million people in 100 countries.3

The evidence shows that the transition to environmental sustainability, if it is happening at all, is taking place very slowly. Even where there is clear evidence that changes are required, action lags behind. The processes of adjustment need to be speeded up at all levels, including locally and nationally. These are the challenges which an effective structure of global environmental governance need to meet.

This first section of the report identifies and discusses the key features of an effective global environmental governance structure. Section 3 then compares the existing global environmental governance structure with the features outlined here.

An effective global environmental governance structure needs to enable, support and encourage policy- and decision-making leading to an effective response to environmental management needs which require (or benefit from) a response at the global level. This includes responses to environmental threats, but also encompasses positive management functions related to prevention of environmental degradation. The management goals of effective global environmental governance therefore include: · Avoiding further harm, in particular irreversible harm, to the natural environment. · Halting and reversing negative trends. · Repairing damage. · Generating positive trends.

3 UNEP, Global Ministerial Environment Forum 2000, Discussion papers presented by the Executive Director (UNEP/GCSS.VI/8).

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We assume that global dialogue, leading to action that takes into account the needs of both developing and developed countries, is an essential prerequisite for effective global environmental governance. An effective global environmental governance structure must be conducive to such a dialogue.

This report focuses on institutional structures at the global level, but it takes into account the fact that many environmental problems are addressed most effectively at the regional, national or local levels, and that a global environmental governance structure flows from and depends on regional-, national- and local-level action. Institutions at the global level should form part of a linked institutional whole, stretching from the local to the global.

The rest of this section lists the features of an effective global environmental governance structure. The process of deciding desirable features can be approached in several ways: in terms of functions, such as facilitating agreement on new rules or monitoring, for example, or in terms of criteria, such as effectiveness or transparency. The features considered here group a range of elements which have emerged in the course of the project. Needless to say, some of the categories overlap, while others could be further sub-divided. Our intention is to provide a general – and not excessively complex – framework enabling a comparison with the existing global environmental governance structure.

We have identified twelve key features which effective global environmental governance requires (see Box 1.1).

Box 1.1: Key features of effective global environmental governance 1. Transformational leadership 2. Clear and early identification of problems 3. Identification and assessment of response options and management objectives 4. Effective implementation at international level 5. Coordination of activities 6. Effectiveness of activities 7. Policy integration 8. Mobilisation of private sector resources 9. Transformation of the traditional industrialised-country development model 10. International equity 11. Legitimacy 12. Institutional adaptability: innovation and learning

1.1 Transformational leadership

As indicated by the UNEP report, and many other surveys of the state of the natural environment, the challenges currently faced by human society requires response action on an unprecedented scale, at international, regional and national levels. To generate this level of effort, which will require fundamental rethinking of the policies that have organised industrialised economies, an effective global environmental governance system needs to provide, or enable, a transformational leadership function – leadership that is capable of bringing about fundamental change through action that is

Page 15 Royal Institute of International Affairs Global Environmental Institutions perceived as legitimate. This can involve key individuals, but it also relates to collective leadership through decision-making groups and organisations.

One of the most important functions of such leadership is to act as an accelerator of change. This is true for action at global and at sub-global levels. The global environmental governance system exerts a significant ‘pull’ on regional and national governance levels, and international decisions can have significant multiplier effects when they are put in practice at the national level.

1.2 Clear and early identification of problems

The clear and early identification of environmental problems or threats is a widely recognised feature of an effective global environmental governance structure. Cost-effective response action requires the early identification of problems, root causes and their likely future trends.

This can be broken down into a number of steps: · Information and analysis to define problems, causes, and impacts – – ideally, early warning of potential problems; – analysis of environmental and socio-economic costs. · Identification of the geographic scale of the problem – – within national boundaries; – transboundary; – common to several states or regions without necessarily being transboundary.4

The role of science, and an effective science-policy interface, is particularly important in this process. The Intergovernmental Panel on Climate Change (IPCC), in particular, has shown how science can provide a basis for international consensus and action in a very difficult area, and is now serving as a model for other policy areas. The Global International Waters Assessment (GIWA), undertaken by UNEP, and the proposed Millennium Ecosystems Assessment (MEA), which involves UNEP and a large number of other organisations, draw on the IPCC as a model.

Integrated assessment, which takes into account the possibility of interactions among threats, is becoming more common, and needs to be part of the problem identification processes of an effective structure. Early identification requires that there are systems or mechanisms in place which ensure that assessment processes are initiated when required, speedily and effectively.

Closely linked to problem identification is the need to prioritise threats. As environmental trends worsen, difficult choices may arise. For example, climate change is recognised as probably the greatest environmental threat humankind currently faces, but the long-term nature of the response needs may create tensions with the need to address problems of a more immediate nature, such as water pollution or habitat loss.

4 Lee Kimball, Reflections on: International Institutions for Environment and Development, Concept and Discussion Paper prepared for LEAD International, May 2000.

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1.3 Identification and assessment of response options and management objectives

Problem identification needs to be followed by identification and assessment of response options. The current state of the global environment means that current processes of global environmental management tends to focus on responses to existing problems. However, the identification of ‘positive’ management objectives, not necessarily related directly to existing problems, is also important.

Identification and assessment of response options includes:

· Addressing the policy implications of scientific knowledge. For example, the objective of the UN Framework Convention on Climate Change (UNFCCC) is stabilisation of greenhouse gas concentrations in the atmosphere at a level that prevents ‘dangerous anthropogenic interference with the climate system’. The IPCC assesses the science, but the definition of when human interference with the climate system becomes ‘dangerous’, i.e. the policy decision, rests with the Conference of the Parties to the UNFCCC.

· Assessment of costs and benefits, leading to choices among response options. Available response options need to be assessed in terms of costs (including opportunity costs) and benefits. There will never be enough financial, or other, resources available to implement ‘perfect’ global environmental management. The process inevitably includes choices and trade-offs, which need to be well-informed ones.

· Analysing and deciding on the appropriate levels for action. Environmental policy can be addressed at local, national, regional and global levels, or at various combinations. Sometimes environmental challenges are best responded to at a regional or national rather than at a global level, but, as noted above, the global environmental governance structure may have an important role in stimulating, or even leading, action at regional and national levels.

1.4 Effective implementation at international level

Once environmental threats are identified and response options assessed and prioritised, an effective global environmental governance structure needs to ensure that action to implement response options and to achieve management objectives actually takes place at the international level. This includes: · Negotiation of new multilateral environmental agreements (MEAs) where necessary, or agreement on non-binding instruments (e.g. guidelines or action plans). · Effective implementation of MEAs. · Successful operation of dispute resolution, compliance and enforcement mechanisms.

Many of the major existing MEAs are too new to have much of a history of implementation, but it is clear from the experience of the slightly older ones, such as CITES, or the Montreal Protocol, that more attention needs to be paid to this feature, which includes translation of MEA commitments into national legislation and programmes, establishing effective data reporting, monitoring and verification systems, and, for developing countries and transition economies, the provision of financial support, technology transfer, and capacity-building assistance.

An effective global environmental governance structure needs to have mechanisms that enable dispute resolution and encourage – and if necessary enforce – compliance. Binding international dispute

Page 17 Royal Institute of International Affairs Global Environmental Institutions settlement, such as reliance on the International Court of Justice (ICJ) or the creation of a new international environmental court, tends to be mentioned in discussions about strengthening global environmental governance. An additional international enforcement capability is often highlighted as a particularly desirable feature. Ideas of an ‘Environmental Security Council’ have been raised in the past, and even the possibility of the Security Council acting on environmental issues.5

However, an international body with new or enhanced enforcement powers in the area of environmental governance would only have legitimacy if it was based on a genuine North–South consensus. Developing countries often express the concern that enhanced international enforcement capability in the area of environment could be used to impose standards that they lack the capacity to implement and that in practice it might retard their economic development and export opportunities; in their view, implementation should be guaranteed through financial assistance and technology transfer, not through punitive measures.

1.5 Coordination of activities

The activities that take place in an effective global environmental governance structure must be coordinated. They should identify interlinkages, capture synergies, and be focused.

Given the very wide impact of environmental degradation, and the wide range of policy areas which affect environmental management, it is not surprising that coordination of different organisations is a key factor in effective environmental governance. This relates to national governments and national ministries just as much as it does to UN-level and other intergovernmental bodies – UNEP, the CSD, MEAs, and so on.

Focus relates to targeting and prioritisation (see below, 1.6), but also includes identifying the appropriate level of response. As noted, the global environmental governance structure cannot be separated from the regional, national and local levels. In many cases, the most important intervention level will be other than the global. Identifying the appropriate scale of the response may be particularly relevant to capturing interlinkages.6

However, it should not be assumed that coordination for its own sake is always necessarily desirable. It needs to be clear for what purpose coordination takes place, and in some instances, focus and results orientation may be more important.

1.6 Effectiveness of activities

Clearly, the global environmental governance structure needs to be effective – which includes prioritising activities, and ensuring efficiency and good use of resources.

5 Action under Chapter VII of the UN Charter, which regulates enforcement action by the Security Council, is triggered by the finding by the Council that a threat to the peace, breach of the peace or act of aggression has taken place. One could argue that the Council could find that an extreme environmental threat fell into one of these categories. 6 See, for example, Lee Kimball, Institutional Linkages Among Multilateral Environmental Agreements: A Structured Approach Based on Scale and Function, paper for UNU International Conference on Synergies and Coordination between Multilateral Environmental Agreements, Tokyo, 14-16 July 1999.

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There has been a tendency in institutional reform discussions to focus on efficiency within, for example, UN agencies or in field-level project or programme implementation. From a global environmental governance point of view, efficiency in intergovernmental policy and decision-making, i.e. good use of negotiating time and resources, is equally relevant.

1.7 Policy integration

Achieving the integration of environmental considerations into all other policy areas, in particular economic policy, is one of the main challenges of an effective global environmental governance system. Two issues can be distinguished for the purposes of this report:

· As discussed elsewhere, one of the critical intervention levels for ensuring integration and policy coherence lies in making the relevant linkages at the national level – ensuring environmental considerations are fully integrated into economic, fiscal, industrial, agricultural and planning policy, and so on. In achieving this national governments require drivers for action. These can emerge domestically, but can also be provided externally, by an effective global environmental governance structure. External drivers can be of particular importance for small or poor countries facing multiple challenges with inadequate resources.

· International institutions in the area of finance and trade have a significant impact on the target areas of global environmental governance. An effective global environmental governance structure needs to have the capability to drive integration of environmental considerations into the programmes and decision-making of these institutions.

Developing countries may have concerns in situations where the integration of environmental policy results in the imposition of inappropriate conditionalities, and it can potentially be used as a disguise for trade protectionism or the protection of domestic elites or vested interests. Notwithstanding these concerns, however, the inadequate nature of environmental policy integration so far around the world underlies many international (and national) policy failures. Environmental ministries and agencies can achieve much by themselves, but not nearly enough.

1.8 Mobilisation of private sector resources

Most international agencies, or MEAs, or even national governments, achieve little in the sphere of environmental protection unless they also affect the ways in which the private sector – producers and consumers – operates.

For example, the initial aims of the Montreal Protocol included only 50% phase-out targets for the main ozone-depleting substances – clearly inadequate if the ozone depletion hypothesis (at the time unproven) was believed, but all that could be achieved diplomatically at the time. Yet after the signing of the Protocol, and the clear confirmation of the science which happened a few months later, industry began to devote its resources to the development and commercialisation of alternatives. Non-ozone depleting substitutes proved far easier and cheaper to develop than was initially thought possible, with the result that the Protocol was subsequently amended, adopting successively tougher phase-out schedules, five times in the following twelve years.

When producers are reluctant to act, consumers can often provide the required impetus for change, as consumer actions over furs, or GM products, for example, has shown. In some cases – such as CITES – there are effectively no ‘producers’ to target, so consumer education becomes even more important.

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1.9 Transformation of the traditional industrialised­country development model

Beyond the relatively straightforward modification of industrial behaviour triggered by MEAs such as the Montreal Protocol, it is widely recognised that long-term sustainable development cannot be achieved through simple end-of-pipe pollution clean-up techniques tacked on to orthodox patterns of production and consumption. There is now a considerable literature on – though distinctly less practical experience with – ‘clean production’ and ‘sustainable consumption’.7

The recognition that the development model traditionally favoured by industrialised countries needs restructuring has considerable institutional implications. There is a need for fundamental modernisation of resource use patterns, in particular energy use, mainly in industrialised countries, leading to a transition to much less resource-intensive consumption and production. To be effective, a global environmental governance system needs to have the capability to exert a governance function in relation to the most powerful nations in the world as well as the poorest and weakest. It needs to be able to address issues that have far-reaching implications for lifestyles and national economies in these countries. It needs to trigger, or at least enhance and support, action at every level of society.

1.10 International equity

Virtually by definition, developing countries and transition economies lack the capacity to implement environmental protection strategies as effectively as do industrialised countries. The provision of financial resources, technology transfer and capacity-building assistance is a prerequisite for ensuring effective action in many cases of environmental stress. As discussed later in the report, these issues form the main source of deep disagreement between developing and developed countries concerning the implementation of Agenda 21.

However, an effective global environmental governance system needs to do more than ensure transfers of financial resources and technology and adequate capacity-building. It needs to be based on and implement principles of international equity, or ‘fairness’, which take into account: · The historical responsibility of industrialised countries for global pollution levels. · The development priorities of developing countries. · The need to match assistance to developing countries with the worsening trends of environmental degradation.

Issues related to international fairness are one – if not the – fundamental challenge for a global environmental governance structure.

1.11 Legitimacy

A global environmental governance structure needs to possess legitimacy in the eyes of governments, industry and broader ‘civil society’. It needs to be democratic, transparent and accountable for its activities. This includes: · Equitable representation and decision-making processes that do not discriminate against developing countries or other groups of countries. · Effective mechanisms that enable contributions by non-governmental actors.

7 See also the various debates around the ‘Factor Four’ (doubling wealth, halving resource use) and ‘Factor Ten’ models of economic transformation.

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· Transparent decision-making processes, including access to information.

The need for mechanisms that allow active contributions by civil society stakeholders, such as advocacy groups, trades unions or industry representatives is widely recognised as essential for the legitimacy of major international organisations. Experience has also shown that the active participation of civil society can bring significant benefits to international policy and decision-making processes. Civil society actors play a key role in making the links between global environmental governance processes and those affected by them. They bring expertise and make a major contribution to raising public awareness, which is essential to creating consensus for action.

Transparency in decision-making covers characteristics such as its openness to outside observers and access to information, including programme and project activities and to documentation, such as reports of meetings.

One further aspect of legitimacy relates directly to the question of effectiveness. One of the consequences of the proliferation of international forums and processes after UNCED, combined with a tendency to reactive engagements in these processes by both governments and non-governmental organisations (NGOs), has been a perception that the global environmental governance system consists of a series of never-ending meetings and processes with little relevance for the local and national levels. The global structure needs to be perceived as legitimate at other environmental management levels.

1.12 Institutional adaptability: innovation and learning

An effective global environmental governance structure needs to identify new ways of addressing old problems, and ways of addressing problems that are entirely new in nature. This means that learning must take place on a continuous basis. There needs to be scope for experimentation, and the structure needs to be conducive to ensuring that lessons are drawn from mistakes and successes and put into practice.

The main task for today’s global environmental governance system is to ensure ‘safe’ management of the planet for the next several decades and beyond. This constitutes a considerable management challenge, especially taking into account the intensifying trends of severe environmental deterioration and the proven inadequacy of current response efforts.

This includes the ability to respond to new threats. The possibility of abrupt, non-linear change is widely recognised as one of the global environmental management challenges. This applies to climate change ‘flip’ scenarios in particular, but the effects of interactions among threats is another risk area.

UNEP’s GEO 2000 identifies three categories of priority: · Unforeseen events and scientific discoveries. · Sudden, unexpected transformation of old issues. · Well-known issues to which the present response is inadequate.8

8 UNEP, GEO 2000, p. 335.

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2 Global environmental institutions: the current structure

This section of the report outlines the existing structure of international environmental institutions, starting with a brief historical background. Section 3 then goes on to review the existing structure in light of the features identified in Section 1.

2.1 Background

The 1972 UN Conference on the Human Environment in Stockholm, organised against a background of growing concern with escalating levels of pollution, resulted in an environmental action plan and the creation, by the UN General Assembly, of the UN Environment Programme, UNEP. Disagreements between industrialised countries, which wanted to address environmental issues such as atmospheric and marine pollution, and developing countries, concerned that this might divert attention from social and development priorities, were a strong influence on the negotiations.

In 1983, the General Assembly established the World Commission on Environment and Development, better known as the Brundtland Commission, to address the relationship between environment and development. Its 1987 report, Our Common Future, launched the concept of sustainable development on the international stage.

The UN Conference on Environment and Development (UNCED), the ‘Earth Summit’ in Rio de Janeiro in 1992, was the next landmark. Agenda 21, the huge non-binding action plan adopted at Rio, contained a chapter on institutional arrangements. Discussions of an international institutional mechanism for following up UNCED resulted in the Commission on Sustainable Development (CSD), established by the UN General Assembly after the conference.

The CSD, created as a functional commission of the UN Economic and Social Council (ECOSOC), represented a compromise between different views. Furthermore, there were concerns about creating new institutions at a time when efforts were being made to streamline the UN system. This put the CSD in a challenging position from the start, particularly as ECOSOC was not seen as either an efficient or an effective UN body. Furthermore, the relationship between UNEP and the CSD has not always been clear, although their mandates are clearly different.

Other international institutions are of course of considerable importance to global environmental management. Three groups of institutions and agreements that form part of the existing global environmental governance structure are considered in the remainder of this section:

· UN bodies. The UN addresses environmental issues through many activities and at many levels, including country-level activities and regional action. This section considers the main UN bodies concerned with, or of strong relevance to, global environmental governance: the Commission on Sustainable Development (2.2), the Economic and Social Council (2.3), the UN General Assembly (2.4), the International Court of Justice (2.5), the UN Environment Programme (2.6) and the various means of interagency coordination (2.7).

· Multilateral environmental agreements (2.8).

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· International financial and trade institutions, which clearly have a considerable environmental impact: the Global Environment Facility (2.9), the World Bank and the International Monetary Fund (2.10) and the World Trade Organisation (2.11).

2.2 The Commission on Sustainable Development

Background

The Commission on Sustainable Development (CSD) was created specifically to follow up the Rio conference. Its key functions include: · Reviewing progress in the implementation of Agenda 21 and the other instruments adopted at UNCED. · Developing policy recommendations relating to the follow-up of UNCED and the achievement of sustainable development. · Promoting dialogue and building partnerships with governments, the international community and the major groups identified in Agenda 21.9

It also has a role in coordinating the Rio follow-up within the UN system, working with the Interagency Committee on Sustainable Development (IACSD), a subsidiary body of the Administrative Committee on Coordination (ACC) (see below, 2.7).

The CSD comprises fifty-three member states, elected by the UN Economic and Social Council (see 2.3 below). It is open to participation by other states, international organisations and NGOs. CSD sessions are prepared with the help of Ad Hoc Intersessional Working Groups, which precede the regular sessions. These include governmental experts and provide an opportunity for contributions from major groups as well as from independent experts.

Governmental CSD delegations usually consist of high-level policy-makers; ministers, regularly more than fifty, attend annual sessions. More than 1000 NGOs are accredited to the CSD. The CSD’s work programme covers all Agenda 21 issues, including cross-sectoral issues, such as financial resources and capacity-building, and sectoral themes. The CSD’s 1999 session covered oceans and seas, while in 2000 integrated planning and management of land resources provided the sectoral themes.

The CSD has played an important role as a forum for the sustainable development debate. Many of its activities explore new ways of approaching issues related to sustainable development. If the CSD’s effectiveness is assessed in terms of advancing new approaches, it could be judged as successful in some areas. One area in particular in which the CSD has been regarded as effective is national reporting on Agenda 21 implementation.10

Civil society

Another area of success concerns the involvement of civil society stakeholders. One of the transformational trends triggered by UNCED was the increased involvement of non-governmental

9 Women, youth, indigenous peoples, non-governmental organizations, local authorities, workers and trade unions, business and industry, the scientific community, farmers. 10 Farhana Yamin, ‘The CSD Reporting Process: A Quiet Step Forward for Sustainable Development’, Yearbook of International Co-operation on Environment and Development 1998–99 (Norway: Fridtjof Nansen Institute/London: Earthscan).

Page 23 Royal Institute of International Affairs Global Environmental Institutions actors in UN processes and at national and regional levels. Agenda 21 has proved an important mechanism for strengthening the role of civil society. Section III, on ‘Strengthening the Role of Major Groups’, addresses women, children and youth, indigenous people, NGOs, local authorities, workers and trade unions, business and industry, the scientific and technological community and farmers.

The multi-stakeholder dialogues which have taken place at several recent CSD sessions are an innovative approach; their intention is to generate action-oriented dialogue between governments and major groups concerning a sector such as agriculture or industry and to identify future policies and actions that will contribute to advancing sustainable development objectives. Proposals from the dialogues are transmitted by the Chair of the CSD to CSD drafting groups, where intergovernmental negotiation takes place.

Furthermore, the CSD and the Agenda 21 implementation process have contributed to legitimising the involvement of non-governmental actors at a national level in many countries.

This topic is not, however, without its tensions. In a commentary on the UN Secretary-General’s 1997 proposals for reform of the UN, the South Centre noted that the definition of ‘civil society’ has given rise to controversy between developing and developed countries.11 The commentary found the Secretary-General’s definition of civil society too loose, for example in grouping mass media and business with social movements and public interest groups. The Centre noted that transnational business already exerted a considerable influence on the UN and that increased access could provide powerful business interests an additional means of advancing special interests.

Lack of focus

The CSD’s broad mandate and the vast scope of Agenda 21, with the non-specific nature of many of its recommendations, poses a significant challenge to its broader effectiveness. As one NGO observed, ‘A key difficulty about a comprehensive Rio-type review is that it is in principle so comprehensive that it becomes hard to get anything into focus. It is crucial to find some means of identifying meaningful priorities for effective negotiation.’12 The CSD considers a broad range of issues that are already under consideration in other forums, which makes it difficult for it to add much value to any one debate.

The CSD’s consideration of macroeconomic issues has offered an opportunity to raise concerns that tend not to be heard in the international financial institutions or the WTO. However, it could be argued that the CSD has had a ‘decoy effect’ in this area, by drawing attention away from more important forums. Although the CSD has provided a forum for raising concerns, its impact has been very limited. As a consequence, this may have had the effect of contributing to a further marginalisation of developing country concerns, as the result of allowing these to be aired in the CSD may have lessened at least some of the pressure to address them in more important forums. As noted above, a similar effect may have taken place in relation to involvement of civil society stakeholders.

11 South Centre, ‘A Commentary on Renewing the United Nations: A Programme for Reform’, Policy brief prepared by the South Centre at the request of the Group of 77. 12 Tom Bigg, ‘Report on “Earth Summit II”, the UN General Assembly Special Session to review outcomes from the Rio Summit’ (UNED-UK).

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One of the CSD’s main problems lies in attempting to maintain a high-profile leadership role on the Rio follow-up from a relatively low place in the institutional hierarchy, as a functional ECOSOC commission. ECOSOC, considered below (2.3), is generally not regarded as an effective body.

Environmental issues form only one part of the CSD’s broad mandate on sustainable development. There is scope for some overlap in the mandates of the CSD and UNEP, although their roles are different. In the eyes of some critics, however, the CSD has focused on the environmental element of its mandate, de-emphasising the developmental element, which has again contributed to marginalising developing country concerns.

Lack of relevance?

Although the CSD has been important in providing a forum for debate, in particular for civil society, it is viewed by many key policy-makers as irrelevant to their real work. For example, they question its consideration of sectoral issues that have been dealt with in other, more specialist forums for many years. Rather than adding value, the CSD is seen as increasing fragmentation. In informal discussions, the CSD is often referred to as a ‘talking shop’ with little purpose. As the Earth Negotiations Bulletin’s report on the most recent CSD put it, ‘even among the seasoned delegates, there is evidence of increasing cynicism. As one negotiator put it, during a stalemate in negotiations: “I’m tempted to agree because I cannot take this [process] seriously. However, I have friends who believe in this process so I must consult.”’13 Even the CSD’s supporters seem to recognise that it needs reform of some kind. As history shows, however, it is extremely difficult to close down a UN body, and not much easier to implement major reforms – though the Rio plus Ten conference does provide an obvious starting point if reform could be agreed upon.

On the other hand, there is a strong argument for maintaining a forum where a broad policy dialogue, or ‘collective learning process’ on sustainable development, can take place. Many governments find the CSD convenient. It provides a designated, low-level forum for interactions with civil society – indeed, ECOSOC and its subsidiary machinery is the only central UN body where NGOs possess formal consultative status. The CSD may also be convenient for discussion of other issues which governments need to be seen to be willing to address, but on which they may not wish to take substantive action, at least at this stage.

2.3 The Economic and Social Council

The Economic and Social Council (ECOSOC) has the task of taking forward the UN’s activities in the economic and social area, a major Charter-mandated function. The Charter specifies that ECOSOC undertakes this role under the authority of the General Assembly. Although without its strong powers, ECOSOC was conceived in some respects as a counterpart to the Security Council.

ECOSOC’s functions include:

· Making or initiating studies and reports with respect to international economic, social, cultural, educational, health, and related matters and making recommendations with respect to any such matters to the General Assembly to the Members of the United Nations, and to the specialised agencies concerned.

13 Earth Negotiations Bulletin Vol. 5, No. 157, May 2000.

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· Making recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all.

· Preparing draft conventions for submission to the General Assembly, with respect to matters falling within its competence.

· Calling, in accordance with the rules prescribed by the United Nations, international conferences on matters falling within its competence.14

ECOSOC has the task of managing relations with the specialised agencies and with NGOs.15 ECOSOC usually holds one five-week substantive session each year, alternating between New York and Geneva. This includes a high-level segment attended by ministers and other senior government officials.

Efforts are underway to strengthen the dialogue between ECOSOC and the Administrative Committee on Coordination (ACC). ACC reporting has been expanded to cover significant developments in individual organisations, with the aim of providing ECOSOC with an overview of the state of coordination within the UN system. Recently ECOSOC acted, for the first time, on the basis of Article 65 of the Charter, under which it can assist the Security Council; in this case, five good-will ambassadors produced a rehabilitation plan for Haiti.

ECOSOC’s large subsidiary machinery makes it difficult for it to implement a strong coordination role. There are four main groups of subsidiary bodies:

· Executive Boards: UNICEF, UNHCR, UNDP, UNFPA, WFP

· Functional Commissions: Statistical Commission, Commission on Population and Development, Commission for Social Development, Commission on Human Rights, Commission on the Status of Women, Commission on Narcotic Drugs, Commission on Crime Prevention and Criminal Justice, Commission on Science and Technology for Development.

· Regional Commissions: Economic Commission for Africa, Economic and Social Commission for Asia and the Pacific, Economic Commission for Europe, Economic Commission for Latin America and the Caribbean, Economic and Social Commission for Western Asia.

· Standing Committees and Expert Bodies: Committee for Programme and Coordination, Commission on Human Settlements, Committee on NGOs, Committee on Negotiations with Intergovernmental Agencies, Committee on Energy and Natural Resources for Development, Committee on Development Policy.

ECOSOC’s mandate is extremely challenging. It ‘competes’ with the Bretton Woods institutions (the IMF and World Bank; see 2.10) in its task of advancing UN purposes in the economic and social areas. The Charter also gives it the task of managing UN relations with the specialised agencies, i.e. independent organisations linked to the UN through cooperative agreements (including the IMF and the World Bank).

14 Article 62 of the UN Charter. 15 Article 63 of the UN Charter.

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ECOSOC is not generally regarded as an effective body. The Secretary-General’s proposals for UN reform in 1997 noted that there may be a need for a long-term fundamental rethinking of the role of ECOSOC, in addition to the immediate priority of enhancing its policy management and coordinating roles. 16

Some reform efforts, however, seem to have been productive in recent years. ECOSOC has aimed to revitalise the relationship with the IMF and the World Bank through high-level dialogues held at UN HQ. At the most recent meeting, in April 2000, the discussions focused on globalisation, debt cancellation and the UN high-level event on financing for development.

Since 1995, ECOSOC has sought to promote and coordinate follow-up of UN conferences, in support of the General Assembly’s overall role. At its 2000 session, ECOSOC considered integrated and coordinated implementation and follow-up of major UN conferences and summits. The discussions focused on basic indicators for follow-up.17 Governments emphasised statistical capacity-building in developing countries, the role of ECOSOC’s functional commissions and the need for further development of basic indicators.18

2.4 The UN General Assembly

Environment and sustainable development are among the many agenda items considered by the UN General Assembly in its annual sessions. Past items have included the implementation of Agenda 21, MEAs, water supply and sanitation, small island developing states, promotion of new and renewable sources of energy and, recently, complementarities among international agreements. One of the Assembly’s tasks is to consider the report of the UNEP Governing Council, although this has so far involved little substantive debate. Most of these issues are dealt with in the Second (Economic and Financial) Committee, but some issues, such as the law of the sea and fisheries, are considered in plenary.

In December 1999 the Assembly adopted a resolution on enhancing complementarities among international instruments related to environment and sustainable development, which aims to encourage Conferences of the Parties and Secretariats to MEAs to address interlinkages. This is an interesting development, which could foreshadow an enhanced coordinating function for the Assembly. The initiative behind the resolution sprang from a concern with the national resources needing to be devoted to reporting and other requirements under MEAs. However, negotiation of the resolution had difficult elements and the follow-up process seems somewhat stalled. Furthermore, annual resolutions on individual MEAs, for example, the Convention on Biological Diversity, add little value.19

16 See for example, ‘Report of the Secretary-General on Renewing the United Nations: A Programme for Reform’ (UN Doc. A/51/950, 14 July 1997), paras 130-137,. 17 See also ECOSOC Decision 1998/290 of 31 July 1998 and ECOSOC Resolution 1999/55 of 30 July 1999 concerning the same issue. 18 For further details concerning basic indicators, see ‘Report of the Secretary-General: Progress Report on Basic Indicators for the Integrated and Coordinated Implementation of and Follow-up to Major United Nations Conferences and Summits at All Levels’ (UN Doc. E/2000/60). 19 See, for example, General Assembly resolution A/RES/54/221, Convention on Biological Diversity, adopted 22 December 1999.

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Another example of evolution of the Assembly’s role in the area of environmental policy is the annual debate on the law of the sea and oceans, which covers all aspects of oceans use and management.20 In the past, debates have consisted mainly of statements of a very general nature. However, recent developments, including the formal oversight role of the Assembly for the new UN Fish Stocks Agreement 21 have provided an impetus for change. The UN Open-Ended Informal Consultative Process on Oceans and the Law of the Sea, established by the General Assembly on the recommendation of the CSD, aims to facilitate deliberations in the Assembly on developments in oceanic affairs and to strengthen international coordination and cooperation in the area of oceans and seas. It may contribute to revitalising the Assembly’s oceans debate.

The Charter vests responsibility for the UN’s functions related to international economic and social cooperation with the General Assembly, under whose authority ECOSOC acts, as noted above.22 The Second Committee deals with agenda items on macroeconomic policy questions (trade and development, commodities, external debt crisis and development, science and technology for development and financing of development). Other economic items are dealt with under sustainable development and international economic cooperation. A further agenda item addresses globalisation and interdependence. This could provide a basis for integrative action by the Assembly in relation to environment and the macroeconomic agenda.

However, the General Assembly’s large membership and extensive agenda may not provide an ideal basis for effective outcomes. Many of its resolutions, such as those in the macroeconomic area, tend to have little impact. The non-binding nature of the Assembly’s resolutions has attracted attention, with detrimental comparisons being drawn with the decision-making powers of the Security Council. UN reform proposals have tried, but so far mostly failed, to focus the Assembly’s agenda and revitalise its long-winded debates. On the other hand, the Assembly has demonstrated effectiveness in some environmental areas, such as the imposition of a moratorium on the use of large scale pelagic driftnets in the early 1990s.

The representative nature of the Assembly means that its recommendations can carry significant weight. At a minimum, the Assembly’s debates offer unused coordination opportunities.

2.5 The International Court of Justice

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations, established in 1945 along with the UN itself.23 It is a standing court and Article 36.1 of its statute provides that its jurisdiction ‘comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force’.

All UN members undertake upon joining to comply with the decisions of the ICJ in any case to which it is a party – in other words, the Court’s decisions are binding on the parties. Article 94.2 provides that if a party fails to carry out the requirements imposed on it by the Court, the other party is entitled

20 For a discussion of the UN General Assembly’s role on ocean issues see Joy Hyvarinen, Elizabeth Wall and Indrani Lutchman, The United Nations and Fisheries in 1998, Ocean Development and International Law 29:323-338 1998 (Taylor & Francis). 21 Resolution II in annex of Report of the Secretary-General on the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, UN Doc. A/50/550, 12 October 1995. 22 Article 60. 23 Article 92 of the UN Charter.

Page 28 Royal Institute of International Affairs Global Environmental Institutions to refer the matter to the Security Council, which ‘may, if it deems fit, make recommendations or decide upon measures to be taken to give effect to the judgement’. Ultimate enforcement is therefore a political, rather than a legal matter – hardly surprisingly, given that the ICJ deals with relations between states. ICJ decisions, however, have a very powerful moral and political impact, partly because of the high standing of its judges, and its long experience, and there are very few cases of sustained resistance to them.

The ICJ clearly has full competence over all aspects of international environmental law, and many MEAs specifically stipulate its jurisdiction. In July 1993 the Court established an environmental chamber, comprising seven of its fifteen judges, with the intention of building up a body of specific expertise. To date, however, no state has opted to have any dispute heard by the new chamber.

The ICJ is not without its critics. A state is only subject to its jurisdiction if it is subject to a multilateral agreement which stipulates it; if it appears before the Court without objecting to it exercising jurisdiction in the case in question; or if it makes a unilateral declaration recognising its jurisdiction (to date about fifty states have done so, though several with reservations). So its reach is far from universal; and, as noted above, its judgements, although binding, are not directly enforceable without additional intervention. Furthermore, its proceedings can take years. And finally, the ICJ cannot hear individual or NGO applications; it deals only with the rights of states.

It is difficult, however, to conceive of any way round most of these drawbacks. With the exception of the European Union, international relations are not yet in a condition in which any significant number of states will submit to compulsory arbitration in agreements which involve serious commitments. And, as noted above, the ICJ possesses a reputation and standing which give it the moral power which is its main weapon.

2.6 The UN Environment Programme

Background and history

The creation of UNEP in 1972 was the outcome of a long and broad-ranging debate covering many of the same issues and options explored in this paper. It was supposed to play a dual ‘catalytic and coordinating’ role in acting as a focal point for environmental activity in the UN system. It was, however, handicapped from the start by lack of resources and status; partly because of the difficulties in creating new UN bodies, and partly because of the North–South tensions over its existence, it came into being as a unit, or programme, within the existing UN system, rather than a fully fledged agency – ‘no more than a minnow’, as one diplomat observed, ‘in the piranha-filled UN pond’.24

There is no doubt that UNEP has succeeded to a certain extent in its catalytic role, with notable achievements, in particular, in the fields of ozone depletion, toxic waste, biodiversity and regional seas. But it has been far less successful in its other role, of coordinating global environmental action, and in the mid 1990s, after UNCED, seemed to many to lose its way entirely. It was criticised for lack of effectiveness, inefficiency and an inability to attract qualified staff. There has been a tendency to blame some of these problems on practical difficulties associated with its location in Nairobi, but lack

24 Tony Brenton, The Greening of Machiavelli (London: RIIA/Earthscan, 1994), p. 50.

Page 29 Royal Institute of International Affairs Global Environmental Institutions of political commitment and funding are in reality of greater importance; its current annual budget, for example, is less than $100 million, a trivial sum in global terms.25

The reform process

In 1997, the UN Secretary-General’s proposals for UN reform stated that ‘high priority must be given to according to [UNEP] the status, strength and access to resources it requires to function effectively as the environmental agency of the world community’.26 This led to the establishment of the UN Task Force on Environment and Human Settlements, chaired by the new Executive Director of UNEP, Klaus Töpfer, which produced a range of recommendations concerning environmental issues in the UN in 1998. The general perception now is that UNEP’s effectiveness and efficiency is steadily increasing; as Michael Meacher, the UK Environment Minister put it, ‘I am a strong supporter of UNEP. It is one of those bodies which, were it not there, we would have to invent it. It has been through a bad patch. It is now past that … I do believe that the new Executive Director, Klaus Töpfer, is excellent. He is energetic; he has taken a grip on a very ramshackle structure; and is beginning to impose disciplines which are the basis, of course, on which the donors, such as ourselves, will have the confidence to give further support.’27

The 1998 report of the UN Task Force on Environment and Human Settlements contained several proposals for strengthening UNEP.28 Among other things, the Task Force recommended the establishment of an ‘annual, ministerial-level, global environmental forum’, consisting of the UNEP Governing Council,29 with universal membership, and, in alternate years, special sessions of the Governing Council, the latter moving from region to region. Environmental Ministers would review and revise the UN environmental agenda, evaluate implementation, discuss challenges and develop plans of action, review the role of UNEP in relation to the Global Environment Facility and engage in debate with their peers, international organisations and major groups. The special sessions of the UNEP Governing Council would focus on issues of high priority, with regional issues featuring prominently.30

This resulted in the first Global Ministerial Environment Forum and Sixth Special Session in Malmö, Sweden, in May 2000. More than seventy ministers attended the event, which considered key themes such as major environmental challenges in the new century, the role of the private sector and the role of civil society. The Forum was broadly welcomed, though whether it will produce significant changes in the way in which global environmental governance actually works remains to be seen.

Activities

The Nairobi Declaration on the Role and Mandate of UNEP, adopted in 1997, provided the foundation for focusing UNEP’s work on five priority areas:

25 UNEP is funded through the regular UN budget, Environment Fund, Trust Funds, and counterpart contributions. 26 Report of the Secretary-General on Renewing the United Nations: A Programme for Reform (UN Doc. A/51/950, 14 July 1997), p 58, paras 130-137. 27 Multilateral Environmental Agreements, report of House of Commons Environment, Transport and Regional Affairs Committee, July 1999 (HC307), para 74. 28 Report of the Secretary-General on Environment and Human Settlements (UN Doc. A/53/463, 6 October 1998). 29 The Governing Council, which consists of fifty-eight members elected by the General Assembly, is the principal governing and legislative body of UNEP, while the Nairobi-based Committee of Permanent Representatives and respective bureaux also oversee and guide its activities. 30 Recommendation 13 of the Report.

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· Environmental monitoring, assessment, information and research, including early warning. · Enhanced coordination of environmental conventions and development of environment policy instruments. · Fresh water. · Technology transfer and industry. · Support to Africa.

UNEP has strengthened its role in recent years in monitoring and assessment-related functions. The Global Environmental Outlook, produced through a world-wide collaborative network with a strong capacity-building element, provides an overall assessment of the state of the world’s environment. The Global International Waters Assessment assesses the world’s water resources. UNEP is collaborating with several other organisations in a pilot phase of a proposed Millennium Ecosystems Assessment, a major collaborative effort to map the health of the planet.

UNEP’s work on international environmental law takes place in accordance with the strategic overview provided by the Programme for the Development and Periodic Review of Environmental Law (the Montevideo Programme). The Programme is currently focusing on compliance and enforcement issues, with the aim of drawing up guidelines for MEA negotiators.

One of UNEP’s most important functions relates to international and regional environmental agreements. As noted above, UNEP provided the impetus for the negotiation of many – though not all – MEAs (see further in 2.8). It currently provides Secretariats for the: · Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) which aims to protect species from over-exploitation and prevent international trade from threatening them with extinction. · Convention on the Conservation of Migratory Species of Wild Animals, which aims to protect migratory species through their range, globally. · Ozone treaties: the Vienna Convention and the Montreal Protocol, which aim to protect the ozone layer by reducing and eventually eliminating emissions from human-made ozone-depleting substances. · Basel Convention on the transboundary movement of hazardous wastes. · The Convention on Biological Diversity, whose aims are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources · The Convention for the Protection of the Mediterranean Sea Against Pollution. · The Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region. · The Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region. · The Convention for the Protection, Management and Development of the Marine and Coastal Environment of the East African Region.

In its most recent resolution on the report of the UNEP Governing Council, the UN General Assembly supported proposals for facilitation of and support for enhancing linkages and coordination within and among environmental and related conventions, inter alia, by UNEP ‘with full respect for the status of the respective convention secretariats and the autonomous decision-making prerogatives of the conferences of the parties …’31

31 Report of the Governing Council of the United Nations Environment Programme (UN Doc. A/RES/54/216).

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2.7 UN interagency coordination

The Administrative Committee on Coordination (ACC) facilitates coordination within the UN system. In the past year, the ACC has focused on the implications of globalisation for the UN’s activities on international economic cooperation.

ACC established the Inter-Agency Committee on Sustainable Development (IACSD) in the follow-up to the Rio Conference. IACSD deals with the allocation of responsibilities for Agenda 21 follow-up within the UN system. Its ‘task manager’ system for producing reports on Agenda 21 follow-up has been considered very successful. For example, UNEP is the task manager with responsibility for environmental aspects of Agenda 21, WHO deals with health and UNESCO with science and education.

Overall, however, in 1998 the UN Task Force on Environment and Development found that:

‘Current United Nations activities are characterised by substantial overlaps, unrecognised linkages and gaps. These flaws are basic and pervasive. They prevent the United Nations system from using its scarce resources to best advantage in addressing problems that are crucial to the human future; harm the credibility and weight of the United Nations in the environmental arena; and damage the United Nations working relationship with its partners in and outside of government.’32

The Task Force recommended that the Secretary-General establish an environmental management group (EMG), chaired by the Executive Director of UNEP. The recommendation envisaged that the EMG would include as core members the main UN entities concerned with environment and human settlements and that particular meetings could involve additional UN entities, financial institutions and organisations outside the UN system.33

The General Assembly subsequently supported the proposal and requested the Secretary-General to develop, in consultation with member states and the ACC, mandate, terms of reference, appropriate criteria for membership and flexible, cost-effective working methods and submit them to the fifty- fourth session of the Assembly for consideration.34 In early 2000, the IACSD endorsed the draft terms of reference.35

2.8 Multilateral environmental agreements

More than 200 multilateral environmental agreements (MEAs) now exist, forming a central part of the framework for global environmental governance. Some have been initiated by UNEP, such as the Vienna Convention for the Protection of the Ozone Layer or the Convention on Biological Diversity, while others, such as the UN Fish Stocks Agreement, had their beginnings elsewhere in the system. The group of agreements dealing with marine pollution and marine disasters, with their origins in the early 1970s, formed an important and precedent-setting set for several later MEAs.

32 Para 20. 33 Report of the Secretary-General on Environment and Human Settlements (UN Doc. A/53/463, 6 October 1998), Recommendation 1, para 23. 34 General Assembly Resolution A/RES/53/242, adopted 28 July 1999. 35 Global Ministerial Environment Forum 2000, Report of the Executive Director on Activities of the United Nations Environment Programme (UNEP/GCSS.VI/6), para 55.

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MEAs vary significantly in nature, from narrowly focused agreements such as CITES or the Convention on Migratory Species of Wild Animals to MEAs with broad coordination functions, such as the Convention on Biological Diversity (CBD) or MEAs with far-reaching impacts, such as the UN Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol. In general, the more recent MEAs, such as the Montreal Protocol, Kyoto Protocol and Cartagena (or Biosafety) Protocol, on genetically modified organisms, have dealt with increasingly important areas of economic activity, in contrast to many earlier MEAs, which were much more limited in their coverage, often dealing with the protection of a single species in a limited geographical area.

The climate regime formed by the UNFCCC and Kyoto Protocol (though the Protocol is not yet in force) is particularly important as a driver in forcing the operationalisation of the concept of sustainable development. It will have a significant impact on economic development, as achievement of the targets of the Kyoto Protocol will require significant modernisation of energy use patterns in industrialised countries – particularly if the fairly cautious initial targets for greenhouse gas emission reductions are succeeded by other, more stringent ones, as IPCC reports indicate will be necessary. The interplay of growing scientific understanding, interlinkages to other policy areas, implications for economic development, acceptance that radical change is needed and inability to respond fast enough is at the core of the global environmental management challenge.

Most MEAs follow a model of governance based on a Conference of Parties as the main decision- making body, complemented by subsidiary bodies or working groups that deal with, for example, scientific or technical issues. Some MEAs have their own Secretariats, for example the UNFCCC, based in Bonn and the CBD, whose Secretariat is based in Montreal, Canada. Others make use of existing bodies such as UNEP.

The MEAs currently in place and under negotiation cover many of the key environmental issues, but there may be gaps that might require further development of international treaties: global agreements on forestry and fisheries are often cited, though these are not without controversy. The question of interlinkages among MEAs has been the subject of much recent discussion and action, including efforts to develop joint work programmes. UNEP’s role in addressing interlinkages among MEAs has been reinforced in recent years by the UN General Assembly, as noted earlier (see 2.4).

It is probably true to say, however, that there is much room for improvement in coordination of MEAs and their institutions. Roles, responsibilities and priorities are fragmented and functions duplicated to an unnecessary extent; as one UNEP official put it, the network of MEAs is ‘more a crowd than a regiment’.36 The proliferation of MEAs, and their CoPs and interim meetings also makes it difficult for smaller and poorer countries to become effectively involved in the real decision-making. On the other hand, many MEA regimes have proved themselves dynamic and innovative, not being constrained by existing institutional structures – a clear strength which any proposed reform of institutions needs to preserve.

As part of the UN’s millennium year activities, the Secretary-General has identified a core group of twenty-five treaties, which reflect the key policy goals of the UN; the Charter calls for the establishment of conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained. The Secretary-General is encouraging all governments to become Parties to these treaties. Among the twenty-five selected treaties are three

36 Alexandre Timoshenko, Chief of International Legal Instruments at UNEP, briefing for House of Commons Environment Committee, 18 May 1999 (HC307).

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MEAs: the Kyoto Protocol to the UN Framework Convention on Climate Change, the Convention on Biological Diversity and the UN Convention to Combat Desertification. The choice of the three treaties reflects their importance in underpinning the international framework for sustainable development.

2.9 The Global Environment Facility

The Global Environment Facility (GEF), a financing body dedicated specifically to the environment, came into existence, initially as a pilot body, in 1990. It was created to help finance efforts to address four threats to the global environment: loss of biological diversity, climate change, degradation of international waters and ozone depletion.37 Related activities concerning land degradation may also be eligible for GEF funding. The GEF houses the financial mechanism for the Convention on Biological Diversity (CBD) and the UN Framework Convention on Climate Change (UNFCCC). The GEF is also expecting to play a role in assisting the agreement under negotiation to address certain persistent organic pollutants. As of mid 1999, GEF had allocated more than $2 billion for more than 500 projects in 120 countries.

The GEF was launched as an ‘experimental facility’ in the run-up to UNCED, and was broadly welcome as an innovative initiative in the difficult area of international financing of environmental projects. On the other hand, it has been argued that the GEF was created in an attempt by the World Bank to pre-empt efforts to create other, more independent financing facilities. One could also argue that the creation of the GEF drew criticism away from the World Bank’s own weaknesses around the time of the Rio conference. One of the subjects of disagreement in connection with the establishment of the GEF was what was perceived to be a focus on industrialised country priorities through the aim of funding projects leading to global, as opposed to local or national, benefits – perceived Northern, rather than Southern, priorities.

One of the interesting features of the GEF is that it brings together different organisations from different fields. The United Nations Development Programme (UNDP), UNEP and the World Bank are ‘implementing agencies’, which the GEF argues combines ‘the respective strengths of Bretton Woods institutions and the United Nations system’. For example, the Capacity Development Initiative (CDI) is a strategic partnership between UNDP and the GEF Secretariat, and its steering committee comprises representatives from UNEP, World Bank, the GEF Scientific and Technical Advisory Panel Chairman, and the Secretariats of the CBD, the UNFCCC and the Convention to Combat Desertification. The intention is that the CDI will result in a strategy for developing capacity to address global environmental issues in developing countries.

The GEF’s main limitation in terms of its role in the global environmental governance structure is that it funds global benefits relating to a limited set of issues.

37 The Montreal Protocol on ozone-depleting substances is the only MEA to possess its own significant financial mechanism, the Multilateral Fund. Financial assistance from this source is available to developing countries; GEF funding for the phase- out of ozone depleting substances therefore focuses on transition economies in central and eastern Europe and the former Soviet Union who would not be eligible for Multilateral Fund assistance.

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2.10 The World Bank and the IMF

The International Monetary Fund and the International Bank for Reconstruction and Development (the World Bank) were created at the UN Monetary and Financial Conference at Bretton Woods in 1944, and are often know as the ‘Bretton Woods institutions’. They both have an increasingly important impact on environmental policy, the World Bank more directly than the IMF.

The World Bank’s extensive activities in the environmental area include projects on forests, drylands, desertification and water. The new Prototype Carbon Fund (PCF), launched in 1999, aims to jump- start an international emissions permit market in anticipation of rules on emissions trading being agreed for the Kyoto Protocol.

The scale of the World Bank’s programmes means that it has a considerable environmental and social impact in recipient countries. It has been severely criticised for lending with destructive environmental and social effects, including mega-projects involving the forced displacement of local people. Since the 1980s, the Bank has sought to respond to these criticisms and has revised its public information policy, reviewed operational strategies and enhanced the involvement of NGOs. Although the general perception is that the Bank has responded to its critics and modified its financing policies, criticisms of its activities continue, for example over lending policy in the energy sector.

In May 2000, the World Bank issued a draft version of a new environment strategy for consultation. The main challenge for the strategy will be to find an operational balance between environmental and developmental concerns, which contributes, in a direct and measurable way, to addressing poverty. The strategy aims to address the links between poverty and the environment by integrating environmental concerns in poverty alleviation and development strategies. The starting point is that poverty reduction depends on the natural environment being able to provide the services people depend on. The goals of the draft strategy are improving people’s health by reducing exposure to air pollution, water and vector-borne disease and toxic substances, enhancing the livelihoods of people who depend on natural resources, by assisting them to manage these in a sustainable manner, and reducing vulnerability to natural disasters, extreme weather events and the impacts of climate change.

The Bank has considerable in-house environmental expertise, but this is not the case with the IMF. The IMF has come under strong criticism for focusing on short-sighted measures to address balance- of-payment problems at the expense of longer-term investment which may affect environmental performance. A recent review by a NGO of the IMF’s environmental policy concluded that: ‘Through its structural adjustment programs, the IMF currently is involved in setting policy in a wide range of areas that have major environmental impacts, yet the IMF has no capacity to address the implications of these policies’.38

One could argue that the Bank and the IMF exercise global environmental governance functions, although without an explicit mandate. They exercise these mainly in relation to developing countries and other countries that find themselves in a vulnerable macroeconomic position.

38 Friends of the Earth, The IMF: Selling the Environment Short, March 2000

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2.11 The World Trade Organisation

The WTO came into existence in 1995, following almost fifty years of steady trade liberalisation under the supposedly temporary regime provided by the General Agreement on Tariffs and Trade (GATT) and associated agreements. Widely regarded as the embodiment of globalisation, the scope of the agreements administered by the WTO is now so wide that they cannot fail to interact with other areas of public policy, including environmental policy. Furthermore, the process of trade liberalisation itself contributes to increased environmental pressure through the expansion of economic activity (though it can, of course, also improve environmental standards through specialisation of production, the spread of new technology, and so on). 39

Tensions between the world trade regime and environmental policy have grown over the last decade, fuelled primarily by a series of high-profile disputes over the trade implications of particular countries’ environmental policies. In general, however, it has not been the disputes themselves that have caused most alarm, but the possible implications of the dispute panels’ rulings for other areas of policy, such as MEAs which contain trade measures. As a body set up to promote and oversee trade liberalisation, it is not surprising that the WTO structures tend to see environmentally mandated restrictions on trade as simply disguised protectionism. Nevertheless, this problem at base represents a failure of policy integration, at the national as much as at the international levels; as one commentator notes, ‘for most of the last fifty years, trade and environmental policy-making proceeded on different tracks’40 – though it should be noted that recent dispute findings have edged in a more environmentally sensitive direction.

The WTO’s Committee on Trade and Environment (CTE) was established to analyse the relationship between trade and environment policy and consider whether any modifications of trading rules were required. After a protracted but ultimately unsuccessful attempt to reach agreement on proposed modifications in the first two years of its existence, the Committee has settled for playing a largely analytical role; in the current year, its discussions centre on two themes: market access and the linkages between the multilateral environment and trade agendas. It is unlikely ever to achieve much more than this discussion-based role, given the fact that its agenda is too narrow to be able to provide the space necessary for the trade-off processes through which the WTO normally makes progress.

Much attention has centred on the WTO’s dispute settlement system. ‘Given the strength of the WTO enforcement mechanisms, there is a clear tendency for non-trade priorities to be subjugated to WTO rules.’41 The potential for conflict between the WTO agreements and MEAs such as the Biosafety and Kyoto Protocols has drawn particular attention. Some observers argue that there is little risk for actual direct conflict, while others suggest that there are areas of relatively immediate concern.42 Certainly the question has been repeatedly raised during recent MEA negotiations.

Given the long history of Western protectionism against developing country exports, it is not surprising that environmentally motivated proposals for trade restrictions, or for modifications to WTO rules, are often viewed by developing countries in the WTO as driven by other than

39 For an overview of the these inter-relationships, and the trade and environment debate in general, see Duncan Brack, Trade and Environment After Seattle, Royal Institute of International Affairs, Briefing Paper 13, April 2000. 40 Dan Esty, No More Trade-Offs (Worldlink, May/June 1999). 41 Institutional Reform of the WTO, OXFAM GB Discussion Paper, March 2000, p 22. 42 See for example The Kyoto Protocol and the WTO, Seminar Note, December 1999, Royal Institute of International Affairs & International Institute for Sustainable Development (via RIIA web site).

Page 36 Royal Institute of International Affairs Global Environmental Institutions environmental considerations. For example, one major government which has pursued protection of endangered marine species from destructive fishing methods through unilateral trade measures, took the initiative to block adoption of relatively strong language on by-catch in the multilateral UN Fish Stocks Agreement in 1995, insisting it be watered down to a level acceptable to industry interests. In light of this, subsequent attempts to assert rights to unilateral action in the WTO may be perceived as being motivated by other than species protection concerns.

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3 Comparison of the existing global environmental governance system with the features identified in Section 1

This section compares the institutions considered above with the features of an effective global environmental governance system identified in Section 1.

3.1 Transformational leadership

As noted in Section 1, the existing global environmental governance structure is not resulting in change at a pace rapid enough to halt, let alone reverse, the progress of environmental degradation. The existing structure does not seem to be conducive to a transformational leadership function across the board, although there are some examples of inspired individual or collective leadership at particular points (for example during some MEA negotiations).

3.2 Clear and early identification of problems

The overview of institutions in the previous section suggests that although some of the elements related to identification and assessment of threats may be in place in the existing institutional structure, the area needs significant reinforcement, in particular in terms of funding.

As noted, the 1997 Nairobi Declaration, which sets UNEP’s main priorities, includes environmental monitoring, assessment, information, research and early warning. UNEP’s activities, including the Global Environmental Outlook and the Global International Waters Assessment, are certainly proving of value, and the IPCC and the Montreal Protocol’s science and environmental effects assessment panels are other good examples. An initiative involving UNEP and a large number of other institutions is under way to begin a Millennium Ecosystems Assessment providing a comprehensive assessment of the world’s ecosystems. One of its aims is to address the scientific interlinkages between environmental threats and human needs.

Although the existing structure has succeeded in initiating major assessments, it suffers from insufficient institutional capacity and resources. For example, the Millennium Ecosystems Assessment is only in a pilot phase; the UN Secretary-General is calling on UN member governments to provide the financial support to make the Assessment possible.43

It is not clear that an adequate structure for effective prioritisation of threats is in place. This is taken into account below in considering whether the existing structure is conducive to effective identification and assessment of response options and management objectives.

3.3 Identification and assessment of response options and management objectives

It is not clear that an adequate institutional structure is in place to act on the implications of the monitoring, information, assessment and early warning-related functions undertaken by UNEP and others.

43 Kofi Annan, ‘We the Peoples’ The Role of the United Nations in the 21st Century (New York: United Nations, 2000), p 65.

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The CSD’s role may cover some aspects of identification and assessment of response options and management objectives, in that it explores approaches and aims to identify policies that will advance sustainable development. However, this function is not linked closely enough to processes of problem identification or to direct management functions. It is a policy dialogue rather than a results-oriented management function.

Individual MEAs possess processes to identify response options and management objectives, including Conferences of the Parties and subsidiary bodies that deal with issues such as science. These are of course limited to the field of activity of the individual MEA.

The UN General Assembly plays some role, for example in mandating the negotiation of MEAs such as the UNFCCC, and in calling UN conferences, where response options and management objectives can be considered. However, this is a limited role, with a very general oversight function.

As discussed earlier, UNEP’s role again is limited by its nature of its programme. The Global Environmental Ministerial Forums may go some way towards filling this institutional gap, but this is far from clear at this stage.

If an environmental threat of extreme seriousness or urgency arose, affected very large numbers of humans and/or critical natural resources or ecosystem functions, the existing structure might stretch to addressing it, if a high level of political urgency was present.44 For example, the General Assembly could initiate consideration of the issue and take action on the basis of UNEP’s advice. However, the existing structure might not be conducive to a rapid response. In an extreme scenario, one could envisage the Security Council acting.

This is perhaps the area where perhaps the most significant gap in the existing global environmental governance structure exists, closely related to a gap in ensuring action, considered below. The current set-up does not provide a clear location or locations for the identification and assessment of response options and management objectives – yet these functions are central to an effective global environmental governance structure.

3.4 Effective implementation at international level

In general it is true to say that the international community has proved better so far at negotiating agreements that at ensuring that they are implemented and enforced. The question of implementation of MEAs involves a range of issues, including: · Establishing the appropriate structures at international level, including creating adequate financial, technology transfer and capacity-building mechanisms. · Adopting relevant legislation and regulations at national level. · Creating effective non-compliance and dispute settlement systems.

Finance, technology transfer and capacity-building assistance are dealt with below, though of course capacity-building assistance is of importance in ensuring that adequate regulations are adopted. There is clearly some way to go on this matter; a 1994 IUCN study of CITES implementation, for example, showed that of 81 countries examined, only 15 possessed legislation meeting all the requirements for

44 Experience so far suggest that there would be a greater likelihood of strong action if populations in industrialised countries were affected.

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CITES implementation, whereas 27 met none of the requirements – and this for a treaty then over twenty years old.

The topic of non-compliance mechanisms and effective enforcement at an international level is probably the most controversial, given the limited range of instruments which countries can apply against parties in non-compliance or free-riding non-parties. Trade sanctions, at least in the products controlled by the MEA in question, are almost bound to be involved, and indeed have proved of clear value in the cases of CITES and the Montreal Protocol, two of the more effective MEAs. However, this raises issues of WTO compatibility, and would be even more controversial if applied in the climate change regime, given its very wide application across fields of economic activity.

The existing global structure is, however, beginning to address these issues. In a discussion paper prepared for the Global Ministerial Environment Forum in Malmö, the UNEP Executive Director noted that enforcement of MEA obligations is a growing concern and asked:

‘Would reports on environmental impacts of MEAs be more effective if they are prepared by the United Nations Environment Programme in cooperation with representatives from all the regions other than the region to which the reviewed country belongs? Appropriately developed, such reports might become a useful tool in our efforts to better coordinate MEAs. Would we even want to think of sanctions and develop a kind of penal code to help achieve our objectives of MEAs?’45

UNEP is undertaking activities in this area, under the Montevideo Programme. As noted, work is taking place on drawing up guidelines for compliance with and enforcement of MEAs and on international environmental crime, a growing area of concern.

Enforcement capability plays an important role in an effective global environmental governance structure. However, it can only be an effective component of the structure if it is perceived to be legitimate. As discussed below in Section 4, the further development of international enforcement capability may be too controversial an issue to be a realistic priority, at least in the short term, for any restructuring of global environmental institutions.

Finally, however, it is also important to note that enforcement is far from the only tool for securing compliance. ‘If the WTO dispute settlement mechanisms … and the WTO’s power… give global trade norms “teeth and claws”, environmental accords, while not backed by coercive enforcement mechanisms, possess extraordinary powers of penetration in domestic and international public opinion …’46 The mere existence of an MEA may in itself trigger significant action which would not otherwise have taken place.

45 Global Ministerial Environment Forum 2000, Discussion Papers Presented by the Executive Director (UN Doc. UNEP/GCSS.VI/8). 46 Guido F. S. Soares, Confrontation between the WTO/GATT and Environmental Protection Norms in Trade, Environment and Sustainable Development: Views from sub-Saharan Africa and Latin America, A Reader, Ed. Peider Konz, with Christophe Bellman, Lucas Assuncao and Ricardo Melendez-Ortiz (UNU/IAS & ICTSD, 2000).

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3.5 Coordination of activities

Fragmentation

Fragmentation is widely recognised as a problem in the existing global environmental governance structure. One of the dominating trends of the 1990s was the shift in decision-making on environment and sustainable development from the national to the international level, through new MEAs, forums and processes. Many of these have unclearly defined or immature mandates (e.g. the CSD, the Convention on Biological Diversity), different governance structures and undefined relationships. This proliferation of new bodies has created significant potential for unclear priorities, duplication of work and waste of resources.

One of the symptoms of these structural problems is the increasing practice to ‘recycle’ decisions already taken in other forums. For example, the CSD’s consideration of fisheries in 1996 absorbed several days of formal and informal negotiating time, to produce a decision on ‘Implementation of international fishery instruments’, which recommended that governments implement various agreements and instruments and emphasised general points covered by the UN Fish Stocks Agreement and other mechanisms.47 The decision essentially reiterated outcomes already agreed in other forums, the result of overlapping mandates combined with insufficiently prioritised national approaches and/or a wish to use agenda items to raise issues of national political concern, even though the issues might be dealt with more effectively in other bodies. It seems doubtful whether exercises such as this are a good use of the international community’s time, and the practice of routine reaffirmations that do not add value should be reconsidered.

There are many unused opportunities for enhancing coordination and addressing interlinkages, in particular in the CSD, ECOSOC and the UN General Assembly. In all of these, perhaps in particular the Assembly, there is a tendency for governments to make general statements and negotiate texts which provide little added value, rather than attempt to take advantage of the opportunities offered to consider priorities and interlinkages.

Focus versus coordination

In terms of focusing action at the relevant level, UNEP has undertaken a considerable amount of work, in particular in seeking to revitalise the regional seas programme. ECOSOC’s regional commissions and other regional bodies undertake a wide range of activities.

All recent proposals for change emphasise the need for better coordination among MEAs and international institutions. The UN Task Force on Environment and Human Settlements, for example, found that: ‘Further steps are needed to strengthen linkages and provide support that will ensure that the international community derives maximum benefit from the investments it has made in this system of international instruments.’48 Calls for increased coordination, for example through the CSD, aim to address the fragmentation in the system. Identifying interlinkages and capturing synergies among agreements and processes has been one of the issues.

47 Joy Hyvarinen, Strengthening Multilateral Environmental Agreements and Institutions: National Government Strategies in International Fora as A Key Factor. Paper for Foundation for International Environmental Law and Development (London, March 1999). 48 Para 31.

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There is a general assumption that ‘better coordination’ is a desirable goal in the majority of circumstances. Although there is clearly a need to deal with overlaps among international agreements and institutions, coordination can absorb a large amount of time and resources; as one MEA Secretary- General put it, ‘institutional history is littered with the wrecks of fruitless and wasteful coordination.’49

Coordination needs need to be assessed carefully, considering what purpose coordination activities are to be undertaken for. It may well be that in some situations the best way ahead is for an agreement or institution to focus more on achieving its core mission and less on coordination with other agreements and institutions. On the other hand, better coordination at the national level, as a basis for greater consistency in national positioning in different international forums and clearer prioritisation in national approaches, may be the key in many situations.

3.6 Effectiveness of activities

There are many problems related to efficiency in the existing global environmental governance system, some of which are discussed elsewhere in this report. There is in general a need for much greater emphasis on prioritisation, focus and results-oriented approaches.

The patchwork nature of the existing system (outlined above in 3.5) clearly creates obstacles to effectiveness. The system lacks direction and processes for setting overall priorities. It is not conducive to understanding and addressing interlinkages. Some problems arise from the relatively early stage that developing institutions and processes find themselves in, but others reflect problems of a structural nature, which may require institutional development or restructuring.

Given the emphasis on budgetary matters in UN reform discussions, the costs of inefficient international policy-making have drawn less attention outside UN HQ than might have been expected. For example, in the mid-1990s a rough average cost for one page of UN documentation amounted to more than US$900. Adding costs such as those of meeting services and of government representatives attending meetings and the costs of their absence from national tasks indicates that the total costs are significant. (However, this needs to be put in perspective: the budget for UN core functions in 1998, covering Secretariat operations in New York, Geneva, Nairobi, Vienna and five regional commissions, was only US$1.25 billion a year – about four per cent of New York City’s annual budget.50)

Political factors often make it impossible to produce results-oriented decisions in international meetings and broad, unspecific outcomes can sometimes be valuable when they express a level of agreement on a politically difficult issue. However, in many cases it should be possible for international bodies to produce outcomes that are more results-oriented, while making better use of scarce negotiating time and resources than is currently the case.51

49 UN Framework Convention on Climate Change (UNFCCC) Executive Secretary Michael Zammit Cutajar, UN Press Release GA/EF/2836, 23 October 1998. 50 Setting the Record Straight: Facts about the United Nations. UN Department of Public Information, DPI/1753/Rev. 16, October 1998. 51 Hyvarinen, Strengthening Multilateral Environmental Agreements and Institutions.

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3.7 Policy integration

National implementation of Agenda 21 and implementation of some MEAs, for example the CBD and UNFCCC, is contributing to coordination among different national agencies and stakeholders, which in turn helps drive integration. However, it is widely recognised that the integration of environmental considerations in most policy areas in most countries is progressing much too slowly.

At the global level, the World Bank, IMF and WTO constitute particular challenges. The World Bank appears to be making some progress in integrating environmental considerations in its policies and programmes, and may consequently have an effect in driving integration, mainly in developing countries. Debates around the modification of WTO rules for environmental purposes have had little impact within the WTO itself, particularly given the failure of the Seattle Ministerial, but may possibly be having an impact on the findings of the organisation’s disputes panels and Appellate Body.

The UN’s Charter-mandated role to advance international economic and social cooperation theoretically provides a basis for driving the integration of economic, social and other (e.g. environmental) considerations into the policies of the international financial institutions and the WTO. In practice, the realities of the distribution of political power in the global institutions means that this does not happen.

3.8 Mobilisation of private sector resources

In some areas, the private sector has reacted relatively well to the stimulus provided by environmental regulation at national or international levels. The Montreal Protocol, discussed earlier, is a case in point, though it should be remembered that significant financial assistance was and will be necessary to achieve the required phase-outs in transition economies and developing countries. Equally, there is some movement in the energy sector, with several large energy companies gradually developing future strategies based on renewable energy sources alongside their more traditional fossil fuels.

These changes are very slow, however, and more significant changes, particularly in energy and agriculture, have owed more to unrelated regulatory developments, such as denationalisation, the spread of competition, and trade liberalisation. In many sectors, particularly in primary resource extraction such as forestry and fishing, very few changes have taken place, and when they do they are more likely to be driven by exhaustion of the resource in question than by environmental regulation.

Consumer behaviour has also shown itself slow and erratic to modify, and varies widely across countries. Nevertheless, there have been some encouraging developments.

3.9 Transformation of the traditional industrialised­country development model

This area is a clear and significant gap in the existing global environmental governance structure. The CSD’s work programme includes issues such as changing consumption patterns, but its policy debates have not had a significant impact. MEAs such as the CBD or the UN Fish Stocks Agreement have the potential for a relatively direct impact on reshaping the industrialised country development model, and the climate change regime, when the Kyoto Protocol enter into force, has the potential to become the most far-reaching MEA in terms of impacting industrialised countries – but these developments are fraught with obstacles and difficulties.

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3.10 International equity

A considerable divide has developed since the Rio Conference between the expectations of developing countries and implementation by developed countries of the commitments made in Agenda 21, in particular concerning financial resources, technology transfer and capacity-building.

Some major donor countries feel that the nature of overseas development assistance (ODA) has changed irrevocably in the years since Rio, from ‘free’ aid flows to limited but more clearly focused assistance, accompanied by stricter monitoring and accounting. There has also been a significant increase in flows of private-sector foreign direct investment, though this has been heavily concentrated on a relatively small number of countries. Developing countries, however, tend to see a betrayal of the hopes of a new North–South partnership based on the Rio accords. Agenda 21 created expectations through the reaffirmation of the commitment to reach the target of 0.7% of GNP for ODA;52 it included costings by the UNCED Secretariat estimating that the average annual cost of implementing Agenda 21 activities in developing countries would require US$125 billion in grant or concessional terms from the international community.53 However, instead of increasing, aid levels have fallen since Rio.54

An Ad Hoc Panel of Economists, established by the Non-aligned Movement in 1997 to assess the international economic situation and assist in developing a positive agenda for the South, identified two priorities in the area of environment and development: · Continuing to urge the full implementation of the Agenda 21 package of agreements and measures. · Ensuring sufficient ‘environmental space’ to accommodate the development process in countries of the South.55

The ‘environmental space’ concept argues that all countries have equal rights to the absorptive capacity of shared global resources such as the atmosphere and oceans. Industrialised countries have ‘used up’ the major share of the carrying capacity of global ecosystems; in the case of greenhouse gas emissions they have already exceeded total global capacity. Developing countries, with much larger populations, accordingly make the case that industrialised countries now need to make a greater effort to reduce their environmental impact, to permit economic expansion in developing countries which may impact negatively on the global environment. Some argue that industrialised countries have an ‘ecological debt’ to developing countries.

Concerning reform of the UN, the Ad Hoc Panel recommended that ‘the South’s agenda must include the bolstering of the UN’s role in placing the development problem in a global perspective, the strengthening of the UN’s contribution in the development field and resisting any retrogression in this area.’56 Although developing countries view the implementation of many UN decisions and programmes as unsatisfactory, the UN is seen as playing a key role in safeguarding their interests.

52 Agenda 21, Chapter 33, para 33.13. 53 Agenda 21, Chapter 33, para 33.17. 54 See for example, Report of the Secretary-General: Financial Resources and Mechanisms, Eighth Session of the Commission on Sustainable Development, 24 April – 5 May 2000 (UN Doc. E/CN.17/2000/2). 55 Elements for an Agenda of the South, Report of the Ad Hoc Panel of Economists of the Non-Aligned Movement, presented to the Twelfth NAM Summit, Durban, South Africa 1998. 56 Ibid.

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An intervention by one developing country at the UN in 1997 summarised the key concerns that had emerged: · That many governments had not responded adequately to global environmental deterioration. · The lack of political will to honour Rio pledges on finance and technology transfer. · The weakening of support for the concept of sustainable development within the international community. · The lack of an agreed overarching policy framework for sustainable development within the UN system as a whole.57

A more recent intervention by the Group of 77 and China, at a meeting of the UN Convention to Combat Desertification in 1999, provides a nutshell analysis:

‘In 1992 developing countries made a key concession – we agreed to the principle of sustainable development and in so doing we acknowledged that this decision would entail important economic consequences and … that it would very probably impact negatively on our immediate development initiatives. Agenda 21 was a carefully negotiated package in which states attempted to balance the right of countries to secure the economic wellbeing of their citizens with the global good as a whole … in view of the unequal levels of development, the bulk of action toward making the necessary adjustments would fall to developing countries … the provision of the requisite assistance was considered vital if this package were to have any hope of working.’58

Industrialised countries are perceived to have failed to make a critical link between their commitments in the Rio process and their policies in macroeconomic forums. The resulting ‘confidence gap’ means that the existing global environmental governance structure is not seen as adequate or acceptable by the majority of developing countries.

There is an urgent need for industrialised countries to address this growing sense of disillusionment, through practical measures in the areas of financial resources, technology transfer and capacity- building and by demonstrating good faith in negotiations leading up to Rio plus Ten.

Developing countries have other concerns with institutional implications, including concerns in relation to activities, as discussed below. The proliferation of MEAs and other instruments and processes since UNCED has placed significant strains on developing countries, through, for example, MEA reporting obligations, and simply the ability to participate meaningfully in so many international negotiations.

3.11 Legitimacy

The UN system is widely accepted as ‘legitimate’ in terms of representation by developed and developing countries, though public opinion in the US seems to be rather more sceptical. One area of concern, however, relates to the limitation of formal participatory opportunities for non-governmental actors in the ECOSOC area.

57 Statement by Malaysia, Second Committee, 13 October 1997. 58 Statement by Guyana/Group of 77 and China, at the Special Segment of the Third Session of the Conference of Parties to the UN Convention to Combat Desertification, Recife, Brazil, November 22, 1999.

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In general, the need for international institutions to operate in the environmental area is widely accepted amongst governments and civil society alike. There may, however, be rather less widespread acceptability of particular elements, such as the Kyoto Protocol, highly controversial in some quarters. In general once again the US has been the least enthusiastic of the industrialised countries in signing and ratifying MEAs, a phenomenon that could cause problems in cases such as the Kyoto Protocol or Cartagena Protocol.

Far more question marks exist over the perceived legitimacy of the international financial and trade institutions. The governing structures of the World Bank and IMF do not give developing countries the same level of representation as the UN, being more representative of the donor community; and although the WTO now has a majority of developing countries amongst its membership, its structures are often seen as reflecting a developed-country (and, particularly, US and EU) dominance. More broadly, as the most obvious instruments of globalisation, all three institutions are subject to increasing criticism, on various grounds, from a growing coalition of NGOs. Although the demonstrations in Seattle and Washington in the last year posed no serious threat to the institutions’ operations, the role of NGOs in 1998 in helping to bring down the negotiations on the OECD’s proposed Multilateral Agreement on Investment may provide a taste of things to come.

3.12 Institutional adaptability: innovation and learning

The issue of adaptability raises similar institutional questions as those related to features 3 (identification and assessment of response options and management objectives) and 4 (effective implementation at international level).

Some of the required adaptability may exist in the current structure. For example, the CSD’s work programme, focused on review of Agenda 21 and development of further policy recommendations, is adapted over time. There may also be significant scope for adapting the General Assembly’s agenda and programme of work; the broad mandate of the Assembly allows it to take up virtually any issue, though its size and the scope of its agenda limit its adaptability in terms of global environmental governance.

The concept of ‘public policy networks’, which bring together governments, international agencies, private sector representatives, NGOs and other civil society stakeholders, has attracted attention, including suggestions that the UN and other international organisations should aim to build partnerships with such networks. As Kofi Annan observed in his Millennium Report, ‘Formal institutional arrangements may often lack the scope, speed and informational capacity to keep up with the rapidly changing global agenda. Mobilising the skills and other resources of diverse global actors, therefore, may increasingly involve forming loose and temporary global policy networks that cut across national, institutional and disciplinary lines. The United Nations is well situated to nurture such informal “coalitions for change” across our various areas of responsibility.’59 Annan has announced his intention to convene a high-level public policy network to address issues related to biotechnology and bioengineering.

MEAs in general have proved innovative and adaptable in adjusting to changes in science and technology. Several MEAs possess interesting features, such as the Clearing House Mechanism

59 Cited in Wolfgang Reinicke and Francis Deng, Critical Choices: The United Nations, Networks and the Future of Global Governance (Ottawa: International Development Research Centre, 2000), p. 92.

Page 46 Royal Institute of International Affairs Global Environmental Institutions established under the CBD, or the flexibility mechanisms of the Kyoto Protocol, which may accelerate innovation and learning. Their review processes often provide significant scope for strengthening and adjusting the treaties – the Montreal Protocol, for example, has been amended and adjusted on no less than five occasions in the eleven years since it came into force, in response to changing scientific evidence and rapidly evolving technology.

The processes of debate and negotiation in the existing structures critique and test policies, although their frequently adversarial nature is not necessarily conducive to learning. Evaluation of projects and programmes, for example in UNEP and the GEF, help draw out lessons. With some exceptions, such as some of the CSD’s activities and various informal processes, the decision-making practices of UN bodies, in particular the negotiation of General Assembly resolutions, is a barrier to innovation and learning.

3.13 Comparisons: conclusions

In summary, some key elements, or perhaps parts of key elements, of an effective global environmental governance structure do appear to be in place. However, there are also significant gaps in relation to important features. It may be possible to address some of these within the existing structure, but some inadequacies may require restructuring or further development of the overall structure. In particular, the following inadequacies are most apparent:

· There is a need to strengthen the existing global environmental governance structure in relation to assessment and problem identification. This may not require major institutional changes; UNEP is already playing a key role. However, there is a need to enhance existing capacity for assessment and problem identification, in particular through increased funding. Among other things, there is a need to strengthen the capacity to address interlinkages.

· The existing institutional structure does not provide a clear location or locations for identification and assessment of response options and management objectives. It is not clear where and how in the existing structure integrated assessment functions can be followed by identification and assessment of response options, assessment of their costs and benefits and choice of appropriate response options, followed by action.

· There is a need for activities, including decision-making in international forums, to be more focused and efficient. There is significant scope for enhancing efficiency within the existing global environmental governance structure. Some aspects can be addressed through better coordination at the national level, leading to more coherent government engagements in international policy- and decision-making processes. In addition, better use should be made of existing opportunities for both intergovernmental and inter-agency coordination. As concerns inter-agency coordination, the new Environmental Management Group may come to have a particularly important role.

· There is an obvious and urgent need to increase support to developing countries, which could include increasing funding to the GEF. Industrialised countries need to address the sense of disillusionment many developing countries have concerning industrialised country implementation of Agenda 21 commitments. There is also a need to take into account the fact that the proliferation of international demands has created a particularly heavy burden on developing countries, which means that they need increased support for both policy implementation and participation in international negotiating processes.

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· Some issues may require institutional development or restructuring, possibly on a relatively major scale. There seem to be gaps in the existing system that relate to functions that are essential to an effective global environmental management system. Specifically, the existing structure does not provide the best framework for considering and acting on the policy implications of knowledge.

· The record of policy integration, at national, regional and international levels, is poor. Despite some successes, national environment ministries and agencies possess neither the political influence nor the resources necessary to implement sustainable development strategies across all areas of government activity; and the same problem is repeated amongst international institutions.

All these functions are central to an effective global environmental governance system. It may be possible to address some of the problems within the framework of the existing structure. However, it may also be that these gaps in the global environmental governance structure require major development or restructuring of existing institutions. Section 4 considers the available options.

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4 Options for strengthening global environmental institutions

This final section of the report considers a range of specific options (see Box 4.1) for strengthening the structure of global environmental institutions. None of these options are mutually exclusive, and many combinations are possible. Some may lead, in due course, logically on to others.

Box 4.1 Options for strengthening global environmental institutions

1. National governments Strengthened coordination and policy coherence in national government approaches.

2. Integration in the macroeconomic agenda Integration of environmental considerations in the decision-making and programmes of the international financial and trade institutions and at national level.

3. Multilateral environmental agreements Strengthening links among MEAs, including co-location of secretariats.

4. Commission on Sustainable Development A narrower mandate; closer links with ECOSOC and/or the General Assembly; enhanced links with UNEP; global public policy networks.

5. UN Economic and Social Council Possibility for integrative role; Charter revision; coordination.

6. UN General Assembly More effective use of existing agenda items by governments; more active Assembly role in considering report of the UNEP Governing Council; restructuring of subsidiary bodies.

7. UN Environment Programme Global Ministerial Environmental Forums; restructuring and institutional development.

8. UN Trusteeship Council Proposal to give the Trusteeship Council the task of overseeing global ‘commons’, such as the oceans, space and the atmosphere.

9. Action by groups Regional action; G8.

10. A new global environmental court Recent proposals.

11. A new global environmental organisation Recent proposals.

The rest of this section considers these options for strengthening the global environmental governance structure in detail – including consideration, to the extent possible, of the feasibility of each option.

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The following considerations are relevant to all options, however, and should be borne in mind when considering them:

· There are expectations that the tenth anniversary of the Rio Conference – Rio plus Ten – in 2002 will lead to some institutional change in the areas of environment and sustainable development.

· So far, proposals to strengthen the global environmental governance structure have emerged mainly from industrialised countries. If discussions are to continue, there is a need to seek the views of developing countries at an early stage, in order to develop a common agenda based on a genuine dialogue.

· This report focuses on strengthening the global environmental governance structure. However, changes in environmental governance cannot be undertaken without taking into account the governance structure in related areas, such as development.

· The feasibility of advancing particular options will depend on developments in other areas, including UN reform.

4.1 National governments

The role of national governments in international forums has received less attention than it deserves. It is widely recognised that the implementation of international environmental commitments requires coordination among ministries and agencies at the national level. However, there is also a need for coordination and coherence in national engagements in international negotiating processes.

Nation-states are the decision-makers in international institutions, which means that coordination and coherence ultimately rests with them. Conflicts between different international bodies (e.g. the WTO and MEAs) ultimately reflect conflicts between national ministries, and a lack of coherence between policy objectives.

The UN Task Force on Environment and Human Settlements recognised the importance of national- level coordination, noting that:

‘Specialised agencies, for example, are responsible only to their governing bodies. In the environmental field, some specialised agencies have sectoral missions that correspond to specific elements within national governments; hence, the agendas of those agencies may reflect very different priorities.’60

It went on to point out that:

‘The only entities that can give consistent guidance to these different bodies are national governments. In view of the important role that is played in the field of the environment … by international institutions not under the authority of the Secretary-General, coordination cannot be fully effective unless governments themselves give coordinated guidance. In short, coordination at the international level should begin at home.’61

60 Para 43. 61 Para 44.

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Greater efforts need to be made at the national level to ensure coordination in advance of international meetings and policy-making processes. Ideally, national coordination of negotiating approaches and implementation should take place on a continuous basis, involving all relevant government agencies. Input from civil society stakeholders should be part of the process. Coordination at the national level is time-consuming, but with the increasing number of international forums and processes, it is becoming increasingly important in ensuring that the system targets priorities, resolves implementation problems, identifies key issues for further international action and makes the best possible use of available resources.

Developing countries, whose resources are already severely strained, have been particularly hard hit by the proliferation of international demands. They would benefit significantly from strengthened national coordination, but it is an area where they require assistance.

4.2 Integration in the macroeconomic agenda

One of the priorities for strengthening the global environmental governance structure must include wider and deeper integration of environmental considerations in the international financial and trade institutions – more effectively harnessing their operations to the pursuit of sustainable development. As the interaction between economic activity and the environment is more fully understood, and as the scope of these institutions’ (particularly the WTO’s) activities grows, the interface between them and environmental institutions is a matter of growing concern.

Effective integration of environmental considerations in the international financial institutions needs to include going beyond an emphasis on ‘end-of-pipe’ measures, such as incorporation of environmental standards in operational policies, to addressing the wider and deeper causes of environmental degradation, such as unsustainable debt, declining terms of trade and inadequate levels of foreign investment and financial and technical assistance.

Developing countries, however, are the main subjects of World Bank and IMF activities, which means that any attempt to add further conditionalities may be perceived as increasing attempts to subjugate developing countries to a Northern agenda.

Making the relevant linkages at the national level is a key route for advancing integration in the international financial institutions. The G8 process may provide another means. Initially, approaches in Washington may be the best way forward, in particular discussions with the G24 developing country grouping. There may also be scope for taking greater advantage of the Bretton Woods dialogues organised by ECOSOC, although this seems like a much less effective route.

The debate over the incorporation of environmental objectives in the WTO system is fraught with difficulties and controversies, as indicated above – and in the absence of a new WTO negotiating round, there is little that can be achieved in any case. However, this debate is dogged with perceptions rather than facts – ‘environmental policy equals protectionism’; ‘trade liberalisation will destroy the environment’ – and greater analysis, inter alia of the environmental impacts of previous trade liberalisation measures, the trade impacts of MEAs, and the environmentally driven trade restrictions imposed by purchasers and importers below the level of state regulation, would be very helpful.

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4.3 Multilateral environmental agreements

The relationship of existing MEAs to a new or restructured global environmental organisation is often raised in discussions about global environmental governance. Some observers see the diffuse constellation of existing MEAs, and the difficulties in ‘tying’ them to a new organisation, as a major obstacle to reform. Reinforcing linkages among MEAs, however, is an obvious route towards strengthening the global environmental governance structure. As the UN Task Force on Environment and Human Settlements noted:

‘Further steps are needed to strengthen linkages and provide support that will ensure that the international community derives maximum benefit from the investments it has made in this system of international instruments.’62

The Task Force recommended that the Executive Director of UNEP should continue to sponsor joint meetings of heads of secretariats, with the aim of ensuring that work programmes are complementary, fill gaps, take advantage of synergies and avoid overlap and duplication. It also recommended that efforts should be made to co-locate new MEAs with other MEAs in the same cluster (for example biological resources, chemicals/waste, marine pollution) and that, in the longer term, umbrella conventions covering each cluster should be negotiated.63

The model provided by the UN Convention on the Law of the Sea is relevant in this respect. UNCLOS succeeded – up to a point – in bringing coherence to the existing fragmented international and regional agreements on oceans, while providing scope for further development. It combined codification of existing customary international law with the development of new legally binding rules. The Convention provides detailed regulation of some issues, such as delimitation of maritime zones, while in other areas it provides general framework-type rules, on the assumption that specialised organisations will provide the detailed regulation.64 This approach allowed it to encompass both existing organisations and agreements (e.g. the International Whaling Commission, the International Maritime Organisation) and development of new regulations, such as conservation and management of global fisheries (e.g. the subsequent UN Fish Stocks Agreement).

Co-location of secretariat functions could help increase efficiency and capture synergies among MEAs. In practice, however, the efforts spent in recent years by countries wishing to be selected as a host country for an MEA secretariat indicate that attempts to achieve co-location may be very difficult. Large-scale restructuring of the UN system, involving relocation of agencies, might change the situation and make it possible to relocate secretariats.

Another possibility is centralising functions common to several MEAs; suggestions have included compliance and enforcement mechanisms. However, this may not be an appropriate priority, at least in the initial phase of discussions about institutional reform; as noted, developing countries have major concerns about the potential for enforcement of environmental standards that may be appropriate for industrialised countries, but which they are not ready to apply, and also over their lack of capacity. An initial focus on other issues, including addressing concerns related to financial resources, transfer of technology and capacity-building, might be more important. Greater coordination and swapping of examples of best practice, may be of assistance in areas such as reporting and verification.

62 Report of the Secretary-General on Environment and Human Settlements (UN Doc. A/53/463, 6 October 1998), para 31. 63 Ibid. recommendation 2. 64 See, for example, Article 65, which deals with marine mammals or Article 207 on land-based marine pollution.

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Another possible focus is the relationship of particular MEAs to the GEF. In the area of biodiversity, for example, projects related to the CBD can be funded by the GEF, whereas CITES activities in general tend to be ineligible. In 1998 the two MEA secretariats decided to work together to submit common projects, a positive approach and an illustration of the benefits of integration of different MEAs.

In the longer run, one could envisage the development of a new environmental organisation ‘on top’ of a merger of key MEAs. There has been little discussion about umbrella conventions, which may be too cumbersome an idea and may not be able to add value. On the other hand, they could help address gaps in the existing framework.

4.4 Commission on Sustainable Development

Strengthening the CSD could include narrowing its focus to a more limited number of issue areas, where it could add value. Another route is ‘upgrading’ the CSD in some way – for example, by linking it more closely with the main ECOSOC debates or the General Assembly debate on environment and sustainable development. This could even involve folding the CSD into one of the other organs.

There have been suggestions that the CSD and UNEP could be linked more closely. This would raise practical questions about how to link a functional ECOSOC commission and a UN programme, but the main question is perhaps what would be gained. As noted earlier, some critics already argue that the CSD has overemphasised the environmental component of its mandate. A further increase in the emphasis on the environment, which would seem likely to follow from bringing the CSD and UNEP closer together, may not be desirable, in particular from the point of view of developing countries.

As discussed earlier, strengthening the CSD, as a route for strengthening the global environmental governance structure, might be an acceptable option for many governments because of the various ‘convenience’ factors.

Global public policy networks

The possible development of global public policy networks within or alongside the UN structure was touched on above. The CSD is an obvious place to develop the concept, bringing together government, business and civil society on a broader and more wide-ranging basis than it currently manages.

4.5 UN Economic and Social Council

ECOSOC’s mandate offers scope for some adaptability. The activities of the CSD provide an example of a relatively successful evolution of ECOSOC’s subsidiary machinery and work programme. ECOSOC’s broad mandate, which encompasses economic, social, human rights and other issues, could provide a basis for integrated and comprehensive institutional development.

However, the political scope for adaptability may be limited in light of ECOSOC’s less than prominent role in the past:

‘Many necromancers have sought to summon the Economic and Social Council back to life over the past few decades, but its inherent problems of a weak mandate over specialised

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agencies and – most of all – an unwieldy size have frustrated all efforts to give it meaningful life.’65

The Secretary-General’s reform proposals concerning ECOSOC also noted that ‘in the longer term, a fundamental rethinking of the role of the Council may be required, given the experience of the past fifty years and new economic and social realities, including providing it with greater authority through Charter revision’.66 The issue of Charter revision could arise if extensive adjustments were made to ECOSOC’s area of activity.

ECOSOC could develop its coordination function, which encompasses a large part of the UN system. This could involve strengthening ECOSOC’s relationships with UN specialised agencies and strengthening its current role in promoting integrated and coordinated follow-up to major UN conferences.

Paradoxically, globalisation may offer an opportunity for revitalising some of ECOSOC’s activities. ECOSOC has not so far been in a strong position to advance its Charter-based task to promote international economic and social cooperation because it has been overshadowed by the Bretton Woods institutions and the WTO. The growing public concern over the negative features of globalisation may mean that there is now a new role for ECOSOC to play – and developing countries may be favourable to this. On the other hand, ECOSOC may find itself providing a ‘convenient’ body for airing some of issues without action – as does the CSD.

ECOSOC’s limited membership of fifty-four countries might restrict any expansion of its role. There is also the question of division of tasks between the Assembly, discussed below, and ECOSOC, which exercises its mandate explicitly under the authority of the Assembly (i.e. not independently).

4.6 UN General Assembly

The UN General Assembly debates on environment and sustainable development could provide an opportunity to provide more overall direction to the international system, indicate broad priorities and address overlaps and unclear mandates. As noted earlier, recent developments enhancing complementarities among international instruments related to environment and sustainable development and oversight and coordination in the area of oceans and fisheries, could be built on.

One approach could be to make greater use of the Assembly’s consideration of the report of the UNEP Governing Council, which currently does not involve much substantive discussion. This gives the potential for simultaneously reinforcing UNEP and contributing to revitalising the Assembly debates. One could envisage a more active Assembly debate as an interim step towards further institutional development and restructuring of UNEP.

The Assembly could also develop its subsidiary structure. As noted above, environment is dealt with in the Assembly’s Second Committee. The possibility of merging this with the Third Committee, which deals with social, humanitarian and cultural issues, has been raised. This could reinforce the integrative aspects of the Assembly’s consideration of environmental issues. There is also the

65 Jeffrey Laurenti, Renewing the United Nations: A Critical Assessment of the Secretary-General’s ‘Track Two’ Reform Program (UNA-USA, 1997). 66 Report of the Secretary-General on Renewing the United Nations: A Programme for Reform (UN Doc. A/51/950, 14 July 1997).

Page 54 Royal Institute of International Affairs Global Environmental Institutions possibility of linking the CSD more directly with the Assembly, for example by folding it into the Second Committee, or creating an entirely new subsidiary body. The Charter allows it to establish the subsidiary bodies it ‘deems necessary for the performance of its functions’.67

There is a strong case for making better use of the Assembly time and debates. The President of the 51st UN General Assembly, who had made major efforts to encourage better use of time and resources, noted in his concluding statement that through better use of plenary meeting time, such as having less scheduled time unutilised, the notional savings for the UN amounted to US$410,000 in the months since September that year.68 The Secretary-General’s 1997 proposals for UN reform addressed several aspects of the Assembly’s work, including the time-consuming nature of its decision-making processes.

Developing countries view the Assembly as a body in which their interests are fairly represented, which would argue in favour of the acceptability of reinforcing the Assembly’s role. The Assembly’s comprehensive mandate, which allows it to raise any issue (with some exceptions related to the Security Council), could provide a basis for an integrative approach to environment and development. The matter of Charter revision would not necessarily arise, as might be the case with ECOSOC.

The possibility of revitalising the Assembly’s role, or aspects of it, such as consideration of the report of the UNEP Governing Council, would require generating interest and consensus for action at UN HQ in New York and probably also in Nairobi. It would not require new institutional decisions, but more active involvement by government representatives, for example in negotiations of the Assembly resolution on the Governing Council report.

One obstacle is that issues on the Assembly agenda usually become part of a complicated package of trade-offs, which means environment can ‘lose out’ in the negotiating process. The personalities and working methods of the Assembly, for example the informal, unpredictably scheduled processes for agreeing resolutions, can also be a problem.

4.7 UN Environment Programme

Three main options for strengthening the policy- and decision-making functions of UNEP have been put forward:

The Global Ministerial Environmental Forums

As noted earlier, the UN Task Force on Environment and Human Settlements recommended the establishment of an ‘annual, ministerial-level, global environmental forum’, consisting of the UNEP Governing Council, with universal membership, and, in alternate years, special sessions of the Governing Council, the latter moving from region to region.69 This process has begun, with the first Global Ministerial Environment Forum and Sixth Special Session of the UNEP Governing Council held in Malmö, Sweden, in May 2000.

67 Article 22 of the Charter. 68 Excluding Main Committees, overtime and related costs of support services. Concluding Statement by the President, Ambassador Razali of Malaysia, at the last meeting of the Regular Session of the 51st UN General Assembly, 18 December 1996. 69 Recommendation 13 of the Report.

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The Global Ministerial Environmental Forum could provide a route for considerable strengthening of UNEP and the global environmental governance structure. Advantages include the fact that no further institutional restructuring would actually be required. The main questions would be how to achieve effective, results-oriented ministerial deliberations, which provide added value and a direct contribution to advancing effective global environmental management. Preparations at the national level would be important, including coordination between all relevant ministries. One possibility might be to explore the feasibility of expanding future Forums to include other ministers. In addition to Governing Council sessions and the Committee of Permanent Representatives, preparations for the Global Ministerial Environmental Forums should also involve further detailed preparations.

This approach could be explored through a range of channels, including various upcoming ministerial meetings. In light of UNEP’s focus on Africa, it might be particularly useful to make an approach to the African Ministerial Conference on the Environment at an early stage.

Restructuring or institutional development of UNEP

A limiting feature in terms of adaptability is UNEP’s nature as a ‘programme’, rather than a decision- making organisation, and its current focus on a specific set of tasks in the environmental area. It may be possible to reinforce this within the existing structure, but it may be more effective to consider the possibility of making UNEP a specialised agency of the UN.

The Charter, in Article 59, gives the UN the mandate to ‘where appropriate, initiate negotiations among the states concerned for the creation of any new specialised agencies required for accomplishment of the purposes set forth in Article 55’. This Article outlines the UN’s tasks in economic, social and related fields, which could be interpreted to encompass the environment.70 This prerogative rests with the Assembly.

Greater coordination and integration with the GEF

If the GEF had been established in 1972, it would have probably have been part of UNEP, the Programme’s ‘environmental fund’. The fact that it was established as a separate institution can be ascribed to UNEP’s uneven record, the fact that UNEP is not, in most cases, an implementing agency, and the desire of the donor nations to maintain greater control over a funding body than would be possible through UNEP. Nevertheless, there is a strong case for greater coordination, along with MEAs which may rely on GEF resources (see above, 4.3) – and, if UNEP can be transformed in the longer term into an effective agency, possibly even integration.

4.8 UN Trusteeship Council

The International Trusteeship System was created to supervise the administration of territories that had been held under Mandates established by the League of Nations after the First World War, territories detached from enemy states in the Second World War and territories voluntarily placed under the

70 ‘With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: (a) higher standards of living, full employment, and conditions of economic and social progress and development; (b) solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and (c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.’

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Trusteeship System. Examples include Ruanda-Urundi under Belgian administration (independent as Rwanda and Burundi in 1962) and Somaliland under Italian administration (joined with the British Somaliland Protectorate in 1960 to become Somalia). The last remaining trust territory, Palau, became independent in 1994. Chapter XIII of the Charter outlines the functions of the Trusteeship Council.

In his 1997 report on UN reform, the Secretary-General suggested that the Trusteeship Council could be reconstituted as the body through which UN member states could exercise their collective trusteeship for the global environment and common areas such as the climate, oceans and outer space. The Secretary-General suggested that the Council could serve as a link between the UN and civil society in relation to these areas of global concern.71 The Commission on Global Governance also proposed giving the Trusteeship Council custody over the global commons, making it the chief forum on global environmental and related matters. 72

The Secretary-General’s proposal received a mixed reception at the time. Among other things, the proposal was based on an assumption that member states had decided to retain the Council, but some states argued that there were divergent views concerning this. However, it is worth noting that the General Assembly, in 1999, requested the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organisation to continue to consider the proposal, taking into account views expressed by states.73

Possible disadvantages of the Trusteeship Council include the risk of further institutional fragmentation, if a ‘commons’ element is separated out in the governance structure. For example, how would this relate to the UNFCCC or to the General Assembly’s oceans debate? The Council’s past as the caretaker of former colonies might not set the right tone for the North–South debate. However, in a commentary on UN reform, the South Centre suggested that the Council’s trusteeship role for the global environment could be broadened to include defence of the public good and public interest. The report argued that change in the mandate of the Council would require careful consideration, but that the concepts of public good and public interest could provide a broader, integrating framework for global trusteeship.74

4.9 Action by groups

Regional action

The past two or three decades have seen the evolution of a number of regional trading blocs, including the EU (no longer, of course, simply a trading bloc), NAFTA, ASEAN, Mercosur, and several others. Many of these are developing an environmental dimension – indeed, in the case of NAFTA, the environmental arm was deemed essential for public acceptability of the project, at least in the US and Canada. Regional blocs may provide a more effective forum than wider international institutions for dealing with environmental challenges, particularly in terms of policy integration (the EU is

71 Report of the Secretary-General on Renewing the United Nations: A Programme for Reform (UN Doc. A/51/950, 14 July 1997), paras 84-85. 72 In its new report The Millennium Year and the Reform Process, the Commission focuses on the Bretton Woods institutions’ role on global economic security. The Commission, which is not a UN body, was created in 1992 at the initiative of Willy Brandt, the former West German Chancellor. 73 General Assembly resolution A/RES/53/106. 74 South Centre, ‘A Commentary on Renewing the United Nations: A Programme for Reform’, Policy brief prepared by the South Centre at the request of the Group of 77.

Page 57 Royal Institute of International Affairs Global Environmental Institutions undoubtedly the best example), and may also help to develop constructive leadership at a the wider international level.

Elements of the global structure can offer a facilitating or leadership role in promoting the formation of new regional agreements. UNEP’s assistance in creating the 1996 Lusaka Agreement between six African countries, improving information exchange and allowing trans-border movements of enforcement agents in cases of illegal wildlife trade, is a good example.

G8

Various calls have been made for the G8 group of major industrial countries to play a leadership role in global environmental policy. G8 environment ministers themselves now hold annual summits, and have issued calls for, among other items, the strengthening of UNEP, the development of an effective climate regime, and action on international environmental crime. This year’s summit agreed the establishment of an initiative on renewable energy.

The G8 may provide the forum for ‘like-minded’ countries to develop and argue for a reform of environmental institutions. Its role should probably not, however, be overemphasised; by definition it is exclusive, particularly from the point of view of developing countries. On the other hand, if G8 countries can pledge additional resources to accompany their proposals, these may prove more widely acceptable.

4.10 A new global environmental court

From time to time in the environmental field proposals have been made to replace or supplement the International Court of Justice with a new World Environment Court. The possibility of establishing such a court to hold accountable companies responsible for environmental damage in breach of legally binding international standards was raised as a possible long-term aspiration at the Global Ministerial Environment Forum in May 2000. Earlier that month, the Dutch environment minister, Jan Pronk, had argued that the solution to specific environmental disputes between countries, and to the increasing overlap between environmental and trade rules, could be the creation of a ‘compulsory MEA dispute settlement mechanism’ based on a ‘general legal framework’.

Although the question of enforcement of environmental standards and MEA obligations is clearly a matter of growing importance, the main problem with these proposals is that it is not at all clear how they would in practice improve the current situation. Despite its defects, through the high standing of its judges and the quality of their judgements, the ICJ has established a solid and world-wide reputation based on more than fifty years of experience. Any new court would take a long time to establish a comparable reputation. Furthermore, the likely political opposition to any strengthened powers of enforcement, or to new rights for individuals or companies to bring cases before an international court, would apply just as strongly to a new creation as to the ICJ.

It may well be that the best option is to examine incremental reform of the ICJ, including issues such as speeding up its proceedings. In cases of matters of enforcement, positive assistance to UNEP’s and MEA secretariats’ data collection and monitoring systems, sharing of experience and best practice amongst MEAs in developing non-compliance systems, capacity-building assistance to countries drawing up and implementing legislation, and encouragement for regional groupings of countries to work together on tackling cross-border transgressions of environmental regulation, may prove far more fruitful than over-ambitious plans for reform of international courts.

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4.11 A new global environmental organisation

Proposals for a new World Environment Organisation have surfaced from time to time. Germany, with the support of Brazil, Singapore and South Africa, proposed the establishment of a global organisation for environmental issues at the 1997 Special Session of the UN General Assembly, convened to review implementation of Agenda 21.75 The proposal emphasised the need for improved cooperation among environmental organisations in the short term and envisaged that in the medium term this should lead to an umbrella organisation for the environment, with UNEP at its centre. The proposal highlighted the need for environment and sustainable development to have a clear ‘voice’ at the UN and recommended that the UN Charter be amended to reflect the importance of environmental issues.

In his last months as Director-General of the WTO, in 1998, Renato Ruggiero put forward a similar proposal for the establishment of a world environment organisation to complement the WTO. He argued that one of the problems of the trade-environment interaction was the lack of a single coordinating body on the environmental side, to which, for example, the WTO could turn for advice in dispute cases involving environmental policy and arguments. Cynics suggested that this was simply an attempt to get environmental concerns out of the WTO and undercut the argument for environmental modification of WTO rules.

In 1998, President Chirac of France called for the creation of a new global environmental agency at a meeting of the World Conservation Union (IUCN). The recent proposal by France to create a new global environmental organisation (currently under discussion within the EU) reportedly aims to address the fragmentation of the current system and the imbalance between MEAs and the WTO.

The Global Environmental Governance Dialogue, initiated by the Yale Center for Environmental Law and Policy, aims to advance the establishment of a new global organisation for the environment. On a slightly different theme, the German Development and Peace Foundation has proposed that Germany, with the EU, should propose the creation of a world environment and development organisation.76

And most recently, Laura Tyson, former chair of the White House Council of Economic Advisors, and an adviser to Democratic Presidential candidate Al Gore, has argued for ‘a new global environmental organisation to protect wildlife and address concerns about the impact of trade on natural resources. The organisation would provide nations with a permanent forum similar to the World Trade Organisation or the International Labour Organisation to tackle cross-border disputes that affect the health of forests, oceans and endangered species.’ Tyson hinted that this concept would feature in Gore’s election campaign.77

There may be a case for the creation of a new global environmental organisation of some kind, but it should be noted that most, if not all, of the proposals put forward so far have had very little flesh on their bones. Many questions remain to be answered; for example: · What would the tasks of the new organisation be? · How would it add value to the existing system, considering the risks of fragmentation of policy- making through the addition of yet another institution? (This is particularly important at a time

75 Statement by Dr. Helmut Kohl, Chancellor of the Federal Republic of Germany, 23 June 1997. 76 Frank Biermann and Udo Ernst Simonis, A World Environment and Development Organization Functions. Opportunities. Issues, German Development and Peace Foundation Policy Paper no. 9. 77 Reuters news report, 14 August 2000.

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when there is an emphasis in UN reform discussions on streamlining existing institutions, making them cost-efficient and, where possible, phasing out unnecessary functions.) · How would it be financed? · If the purpose of the new body is to act as a counterweight to the WTO, how exactly is it supposed to achieve that? Will not WTO rules need to be modified in any case, if the WTO itself is expected to act differently? · Would combining the various international environmental institutions – UNEP, CSD, MEA secretariats – in one body, as is often argued (possibly just for the sake of neatness), risk marginalising the concerns it was meant to address? · If the underlying problems of global environmental policy are a lack of resources, a lack of political will and inadequate policy integration, how will a new global organisation make any difference?

None of these questions is in principle unanswerable, but the debate so far has not seen detailed explorations of them. And especially as proposals for the creation of a new organisation have been linked to the WTO, and as dispute settlement and enforcement have tended to feature as priority issues in these discussions, developing countries – understandably – suspect a new environmental organisation might be used to enforce compliance with environmental standards for which they are not ready.

Much would depend on the level of political support. One possibility would be to initiate a high-level initiative in a smaller group of developed and developing countries, which might make it possible to develop a North–South proposal. This would then need to be taken forward within the UN structure.

It may well be the case that a new institution could develop in an evolutionary, rather than revolutionary way, through the transformation of UNEP in many of the ways outlined above, alongside other reform options: the culmination of a long series of incremental changes, rather than one big – and difficult and effort-consuming – ‘bang’.

4.12 Conclusions: a road­map for reform?

If the international community is serious about addressing the failures of the current system of global environmental governance which we outlined in Section 3, some reform of the current set-up is required. The existing system, although it is not without its successes, is failing to cope adequately with the challenge of moving the world on to a path of environmentally sustainable development.

Major global environmental conferences in 1972 and in 1992 each created new institutions, UNEP and the CSD. The Rio plus Ten conference in 2002 is in part designed to review their performance, and it seems almost inevitable that further proposals for institutional change will be made in its run-up. There is no real likelihood of creating yet another new institution, but it should be possible to set in train a process which achieves what those who argue for a new world environment organisation really want – i.e. an enhanced capacity for global environmental management.

It is not the purpose of this report to argue for any particular option or set of options. But the debate so far (such as it is) has tended to revolve the ‘big bang’ solution of creating a major new institution, and it is our intention to indicate that there are alternative routes to enhancing global environmental governance. An initial set of relatively modest steps to reform, for example, could include the following:

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· A commitment by national governments to coordinate their activities in different international forums, and to drive policy integration further and faster; G8 environment ministers could take the lead here, demonstrating best practice and providing suitable assistance.

· Agreement on further discussions between environmental institutions such as the CSD and UNEP, and the GEF, IMF, World Bank and WTO to analyse and identify policy interlinkages; the UNEP Global Ministerial Environmental Forums could develop into a key meeting place between environment, trade and finance ministers.

· Building greater linkages between MEAs, cooperating on areas of common interest, learning from each others’ experiences, and working more closely together with the GEF.

· Greater resourcing for UNEP, particularly in areas such as assessment and data collection, and support for developing regional networks and frameworks.

· More imaginative use of ECOSOC and UN General Assembly debates.

· Development of the concept of global public policy networks within the CSD.

At the same time, more ambitious proposals could be explored, with a view to introducing them, should they prove acceptable, in the medium term; for example:

· The development of MEA ‘clusters’ or ‘umbrella conventions’.

· Some exploration of common non-compliance and dispute settlement systems, possibly working together with the International Court of Justice.

· The promotion of UNEP into a specialised UN agency, accompanied by appropriate restructuring and resourcing, and a possible closer relationship with the GEF.

· Possible reconstitution of the UN Trusteeship Council.

In the longer run, all these steps could lead to a more fundamental reform of the international system, with the creation of a new World Environment Organisation. Or they may not; it may be that if these steps – or others which may develop and be put forward – were followed successfully, the objectives of those who argue for a WEO would be achieved without the need for any formal creation of a new organisation.

In any case, the steps outlined above are worth pursuing for their own ends; they do not necessarily have to lead to a new organisation, but neither would they prejudice it. And it should not be forgotten that what will be possible will depend on UN reform in other areas, in particular of the institutions dealing with development.

Whatever the options chosen, it should also be remembered, as pointed out in the Introduction, that the structure of institutions forms only one part of global environmental governance. Getting the institutional structure right is an important – even an essential – part of the process of developing environmentally sustainable economies and societies, but it is not the only one, and in itself it is insufficient. At the root of the changes we have outlined in this report lies the need for political will; without that, no institutional reform can move the world very far down the road towards sustainable development.

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Energy and Environmental Programme

Overview The Energy and Environmental Programme (EEP) is the largest of the research programmes at the Royal Institute of International Affairs (RIIA) at Chatham House in London. The Programme works with business, government, academic and NGO experts to carry out and publish research and stimulate debate on key energy and environmental issues with international implications, particularly those just emerging into the consciousness of policy- makers. The Programme’s work is organised into six major areas: Global oil and gas: markets, depletion and environmental constraints, geopolitical relevance. Energy networks: electricity and gas markets, liberalisation and regulation, geopolitical relevance. Non-fossil fuels: development of renewable energy resources, future for civil nuclear power. Climate change: development of the international climate change regime, interaction with other aspects of international politics (e.g. trade). International environmental policy: trade, investment and environment, evolution of international environmental treaties, international environmental crime. Corporate international affairs: international perspectives on corporate citizenship, role of corporations in global governance, new trends in regulation of transnationals. In each main area there is a full-time researcher who is the first contact point for the Programme’s network on that subject, plus one or more associate researchers. Research work includes the publication of books, reports and short briefing papers, and the organisation of seminars, workshops and conferences.

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