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C. Changes to be considered

1. Assignment of new responsibilities and powers to principal UN organs

Various suggestions have recently been made, that because of the importance of environmental concerns these ought to be assigned not merely to one of the numerous subsidiary organs of the United Nations but rather to one of the limited number of its principal organs, either one of those already in existence or to a specially created one. Some of those suggestions are merely aimed at giving greater visibility and weight to environmental issues and debates, while others would be designed to utilize the potentially binding force of the decisions of certain principal organs either to create new international environmental law or to enforce it. These various suggestions will now be examined in respect of each of the principal organs.

(a) The General Assembly

As already mentioned, the General Assembly, whose present workload is both heavy and weighted with items of historical but not necessarily current importance, has found it difficult to concentrate sufficiently on environmental issues and thus to give them the attention that many now believe they deserve. While the question of how the Assembly might shed or redistribute some of its existing load goes generally beyond the bounds of the present study, it should be pointed out that it has been recognized that the Fourth Committee, which deals with questions of decolonization and with the few remaining small non-self-governing territories, has for some time been due for retirement, with its remaining items perhaps assigned to the Special Political Committee. While it might be tempting to consign the Fourth Committee entirely to environmental concerns, to do so would disregard two important points: the fact that, interesting and important as these issues might be, they have not yet attained in the international community the prominence that would justify such an exclusive assignment of some two months debate in a plenary organ of the Assembly; furthermore, it is clear (e.g., from the name assigned to the 1992 Conference) that the General Assembly sees environment and development as inextricably linked. Consequently, a more acceptable proposal would appear to be to redistribute the current load of the Second Committee between that and the Fourth with one of them taking all environment- or development-related issues, while all other economic and financial ones go to the other.

Although the General Assembly is already the most important international legislative body, in terms of the number and variety of the international law-making treaties it has adopted or caused to be adopted through conferences and other devices, not to speak of its numerous formal declarations that catalyse the creation of new customary and conventional law, the chances are minimal that it will soon or even in the foreseeable future be granted genuine legislative powers - i.e. authority to adopt legal rules that thereby become binding on states. Aside from the revolution in international legal thinking that the grant of such power to any global organ would entail, the Assembly notoriously suffers from a fatal flaw that would seem to disable it from such a role: its voting system. Although mistakenly sometimes characterized as "democratic," the assignment of the same voting power to a state of over a thousand million inhabitants as that enjoyed by a state with a population of some twenty thousand,55 disqualifies the Assembly from consideration as the sole approver of any generally binding norms. While it could of course be argued that the same Charter amendment that would be required to give legislative (rather than mere recommendatory) force to certain Assembly decisions could also change the voting rules for such decisions,56 it is only realistic to recognize that even if the majority of states might be willing, should they consider it absolutely necessary, to create new organs or organizations with expanded powers and an appropriate decision-making process to match, it is most unlikely that they will permit the voting rules of the General Assembly itself to be altered for such a purpose. What might, however, be considered is to have the Assembly act in tandem with some special environmental (or even broader) body (such as the new principal organ proposed under heading (e) below), so that an effective law-making decision would require adoption by both organs: by the Assembly representing classic sovereign equality and by a specially balanced organ whose decisions reflect in some realistic way genuine power and interest relationships; this would in effect be a bicameral (or possibly even a still more complex multicameral) world parliament, a device for which some precedents already exist in international constitutional law57 and indeed in the UN itself (e.g., the necessary collaboration of the Security Council and the General Assembly in taking decisions about UN membership, in electing the Secretary-General and, in a different way, the Judges of the World Court).58

For the same reason, i.e. its skewed voting system, as well as because of its size and consequent procedural awkwardness, the General Assembly cannot be seriously considered as an organ to which to assign enforcement powers relating to environmental rules or violations.

(b) The Security Council

The idea of assigning to the Security Council certain functions related to environmental management, particularly in dealing with emergency or otherwise serious situations, has at least two bases: The first, expressed in chapter 13 of this volume, is that critical environmental problems present, in effect, "security" issues, i.e. they are related to human survival in the same or a sufficiently similar sense as those war/peace questions over which the Council already has explicit competence; the other is that the Council, uniquely among UN or indeed intergovernmental organs, disposes (at least in principle) over powers to compel states to comply with its decrees, or to suffer economic, diplomatic, or even military pressures and penalties that the Council can insist that other states impose on any offender.59

As to the first point, while the argument that environmental threats may indeed concern human security may be intellectually convincing, it should be noted that the language of the Charter, not to speak of the clear record of the original meaning, does not easily lend itself to such an interpretation - and that in an area where the classical of treaty interpretation require that in dealing with duties or burdens imposed on States Parties to a treaty a strict rather than a liberal construction be applied.60

Secondly, in trying in effect to hitch a ride on the compulsory powers that are given to the Council by Chapter VII of the UN Charter, it should be noted that these powers were not designed for dealing with environmental rather than military concerns.61 In effect, it would be a case of using an inappropriate instrument to perform a potentially delicate operation - perhaps it can be pulled off successfully, but it certainly would not be either the surgeon's or the patient's choice. Nevertheless, there is one attractive feature to such proposals: if it should prove (as is not unlikely) that it is too controversial and therefore difficult to negotiate a treaty assigning true legislative powers to the United Nations or to a new international organization (which would require the concurrence of all significant states) or to amend the UN Charter in that sense (which would require only the concurrence of two-thirds of the membership, but these must include all five permanent members of the Security Council), it could be argued that the Council already has, albeit in yet undeveloped form, the necessary legislative powers under Article 25 and Chapter VII of the Charter.62

The principal difficulty, however, is that neither the composition nor the voting system of the Security Council appear suitable for assigning environmental tasks to that organ. Even aside from the question whether that composition and that system are still appropriate even for the functions for which the Council was originally designed, it would seem absurd if at this time this completely different function (i.e. environmental protection) would be subjected to a system in which the five states who were the principal victors in the Second World War (but which do not include two of the most powerful economies, those of Germany and Japan) would have a veto power over environmental enforcement actions. It may indeed be sensible and even necessary that any such compulsory powers not be easily exercised and that therefore one or more states or groups of states should be able to prevent such exercise by a veto, but the states and the particular voting powers that one would assign them would presumably be quite different from those specified in Articles 23 and 27 of the Charter.

Consequently, to the extent that a Charter amendment would be required to give the Security Council responsibilities in respect of the enforcement of environmental rules or the prevention of environmental violations, it would seem more sensible, if it is desired to vest such powers in a UN organ, to create a new principal organ for that purpose. This is discussed under heading (e) below.

On these several grounds, there is no reason to try to involve the Security Council either in the process of environmental legislation or even in considering and debating such issues. Although it is true that the Council enjoys possibly the highest visibility among UN organs' it would seem likely that instead of enhancing environmental issues with its prestige it would find its own role diminished by dealing with matters for which it is clearly unsuited.

(c) Trusteeship Council

It has been suggested that with the achievement of independence of practically all trust territories, the Trusteeship Council is now or will soon be without any function, and consequently could assume the task of environmental watchdog for the UN System.

While perhaps superficially plausible, this proposal has really nothing to commend it. In the first place, there is no Law of Conservation of UN Principal Organs. If one or more organs lose their functions, they should be abolished or abandoned, whether or not any other tasks remain unassigned in the international constellation; on the other hand, if there are tasks that should be performed by new types of principal organs, these should be established as and when sufficient political agreement as to such a requirement can be achieved.

More importantly, the Trusteeship Council is even more unsuitable, from every point of view, than the Security Council to carry out any meaningful environmental tasks. Its Charter functions are irrelevant for that purpose and it has no powers, such as the Security Council has, that would be even potentially valuable in any other field; the powers it does have: to consider reports, to examine petitions, and to provide for periodic visits, are ones that the General Assembly could assign to a suitable subsidiary organ. Most importantly, its composition: all UN Members administering trust territories plus all other permanent members of the Security Council plus enough members elected by the General Assembly to balance the number of administering and non-administering states, is completely unsuitable and certainly unadaptable to the needs of an environmental organ.

Again, since a Charter amendment would be required to adapt the Trusteeship Council to assume any environmental functions, it would be better to consider the establishment of an entirely new organ.

(d) The Economic and Social Council

Although in a sense ECOSOC would appear predestined to be at least one of the principal UN organs to deal prominently with environmental questions, in fact that organ would, for various reasons, be a very weak reed to lean on for this purpose.

To dispose first of any potential role of this Council as an effective legislative or enforcement body, it should be pointed out that though only a third as large as the General Assembly, with 54 members it is still too large for a body to which a delicate task such as the diplomacy required for effective enforcement actions could be entrusted. Furthermore, even though its smaller size permits a slight mitigation of the one-nation-one-vote defect of the Assembly (in that a smaller proportion of small and weak states are elected to the Council compared to the larger and more significant ones), this is still not sufficient to reassure many crucial states that ECOSOC decisions normally reflect a realistic political base. This is especially so because, under Article 67(2) of the Charter, all Council decisions must be taken by a simple majority - i.e. the specification of any higher majorities is constitutionally precluded.

Turning now to the potentiality of the Council as an important forum for environmental debates, it must be pointed out that the Council has not, particularly in recent years, managed to play such a role either in respect of that subject or any other (such as human rights or development, its principal preoccupations). Why that should be so has been extensively examined, with suspicion concentrating on the fact that, because of two increases in its size to reflect the growth in the Organization's membership, the Council has become too large to be an effective intimate forum and too small to be fully representative. Voices have even been raised to suggest that ECOSOC be entirely abolished, with its tasks being taken over by the present plenary Second and Third Committees of the General Assembly, in which all significant Council debates are in any event rehashed; should ECOSOC disappear, these Committees might be authorized to meet between regular sessions of the Assembly, i.e. during the spring and summer. Given this general mood about the Council, it would not seem wise to plan to make it into a showcase for environmental concerns.

(e) A new principal organ

For the reasons sketched above, none of the four principal UN organs so far considered (i.e. all those having a representative character) would seem suitable to assume important responsibilities for either environmental legislation or enforcement - though the General Assembly itself might become one of the most important public environmental fore. If "governmental" responsibilities are to be exercised within the United Nations - and this itself is not entirely clear, in light of the alternatives discussed in particular under heading 4 below - it would then seem necessary to create one, or possibly two new organs for that purpose; moreover it would seem that because of the importance of the proposed tasks, and the need in any event to amend the Charter to endow the Organization itself with the required powers, such organ(s) should be created as principal one(s).

Faced with the prospect of having, in any event, to amend the Charter to create the proposed principal organ(s), it might in the first place be thought that all things are possible, both in terms of the powers of the new entity and in terms of its composition and decision-making rules. While technically this may be true, some constraints should be kept in mind so as not to appear to be utterly utopian: in the first place, the United Nations is an international and not a supranational organization, and consequently it would not seem appropriate, and especially not timely, to try to endow it with excessive powers over its members; secondly, the Organization is an intergovernmental one, so that the principal actors in any new organ should be governments acting through representatives, rather than other types of entities;63 lastly, account should be taken of the extensive experience of the international community with a large variety of decision-making devices to find one that would seem appropriate for the purposes designated here.64

As to powers, one that should obviously be considered is a legislative or norm-making one. As pointed out in chapter 2 above, the principal weakness of the existing international legislative process is not in the formulating and adoption stages - though these too could be improved- but in the final one, that of bringing new legislation into force, against the suspicion or at least the inertia of the domestic authorities of most states. Indeed, the most important reason for contemplating the creation of a new principal organ within the United Nations is to overcome this handicap by endowing some properly constructed organ with authority to impose environmental rules on the entire UN membership and possibly even, by analogy to Article 2(6) of the Charter, on the few remaining non-members.65 Obviously, this proposed Charter power will have to be carefully circumscribed to make it at all acceptable to the world community, so that the burdens that may be so imposed not be capable of becoming excessively heavy or intrusive, or liable to distort international power or domestic social relations.

The other, and perhaps more plausibly acceptable, power that should be considered is that of enforcement of existing rules and responsibilities. As already mentioned in connection with the examination of a possibly expanded role of the Security Council (heading [b] above), it may be hoped that in due course the international community will mature enough to be able to assign serious enforcement functions in relation to environmental protection to an international organ, just as it did, in 1945, in principle assign such functions in relation to preserving international peace and security to the Security Council. By analogy to Article 39 of the Charter, the proposed organ might be empowered to determine the existence of any threat to the environment or any breach of an international environmental regime. By analogy to Article 40 it would first call on the state(s) to take certain provisional measures to avert the threat or the breach. Then, by analogy to Article 41, it might call on other states to take suitable economic, communication-related, or diplomatic measures vis--vis the offending entities. The articles relating to military measures (4247) would presumably not be directly relevant but some inspiration might be drawn from them for designing in advance certain sanctions that could be put into place readily as and when required.

Though these two potential functions are evidently not unrelated, they also present sufficient differences that it is not clear that they can and should be assigned to the same organ. In particular, any legislative organ must be large enough to be considered reasonably representative of the world community -even if it is provided (as suggested towards the end of heading [a] above) that any proposed legislation must also be approved by the General Assembly. On the other hand, an organ charged with enforcement should, by analogy with the Security Council, be small enough to be able to act effectively.

What is clear is that any organ to which either of the proposed formidable powers are entrusted would have to be carefully composed as is the Security Council. Evidently there would have to be a heavy role for the principal economic powers, though that might be achieved through devices other than assured permanent membership, i.e. by relying on certain indices (corresponding to those that determine membership in a number of international organs);66 naturally, there would also have to be appropriate representation of the less-powerful states, using selection formulae similar to those that are already customary in the international community. As to the decision-making process, while consideration might be given to allowing certain members (and not necessarily only any "permanent" ones) to exercise a veto, it would seem better instead to require very high qualified majorities (e.g., 90 per cent) for certain types of decisions.67 Finally, consideration might also be given, in connection with these features, to some form of weighted voting, to reflect more sensibly - as in most of the international financial institutions - the influence in the real world of each member state.

Evidently, all the above-mentioned aspects will require extensive negotiations, which are not likely to be brought to fruition until the world community realizes the absolute importance of being able to rely on enforceable international regimes to save it from environmental catastrophes.

(f) The Secretariat and the Secretary-General

There can, of course, be no question of assigning any independent legislative or enforcement powers to the UN Secretary-General. However, he would, under Charter Article 98 and in accordance with well-established practices, have important responsibilities in assisting any competent representative organs in formulating proposed environmental norms and in actually carrying out or at least coordinating any enforcement measures decided on. By analogy to Charter Article 99 he might even be given the power to call to the attention of the competent organs the need to initiate norm-making or enforcement actions.

A question that may be asked, however, is how an Environment Secretariat might best be structured to offer the maximum effective support to the responsible representative organs. For this two models present themselves: that of a unit of the central secretariat (such as the Department for Disarmament Affairs or the Human Rights Centre) or that of a quasi-autonomous organ (such as the present UNEP, or UNDP or UNICEF) equipped with its own representative organ and led by an executive head who, though nominally selected by the Secretary-General and answerable to him, is confirmed by the General Assembly and is dependent on the support of his agency's special political organ, and also has considerable independence in dealing with his staff. The first model, which is more characteristic of policymaking units, evidently gives the Secretary-General a more important role and also a greater stake in the operation of the entity; the latter, which is used mostly for operational organs, gives greater scope for leadership by a dedicated executive head who has responsibilities for only a single programme- in this instance: environmental protection.

One further point to be considered in this connection is the bureaucratic level of the executive head of the secretariat unit. UN departments are normally headed by under-secretaries-general, as are most of the quasi-autonomous units. However, during the past two decades two still higher posts have been established, whose status is explicitly stated to be equal to that of the "executive head of a major specialized agency": one is the UNDP Administrator, the other the Director-General for Development and International Economic Cooperation, who presides over a cluster of departments and other units.68 The question is whether the secretariat units charged with environmental protection should, if part of the central secretariat, also be subordinated to the Director-General, into whose ambit they would naturally belong, or whether the environmental executive head, whether or not he leads a quasi-autonomous unit such as the UNDP Administrator, also be appointed at the level of those two officials; such an arrangement would of course enable him to speak on terms of greater authority with the heads of the independent agencies.

Some of the above-explored changes would be a natural consequence of establishing the new environmental organ(s) discussed under (e) above, but any or all of them could also be carried out if there should be no current enhancement of the political organs but merely an increase in the budgetary commitment and thus in the staff of the present UNEP in order to reflect the growth in its tasks and responsibilities.

(g) The International Court of Justice

The principal judicial organ of the United Nations is entirely capable, within the general powers it already has to settle disputes between consenting states and to respond to requests for advisory opinions from duly authorized organs of the UN system, to play a useful role in administering an international environmental regime.

Under Article 26(1) of its Statute, the Court has the power to form chambers "for dealing with particular categories of cases," and it has been pointed out that it could, under this power, create a chamber for dealing with environmental disputes.69 Whether this would be at all useful would depend on whether there would be a sufficient flow of such cases that the existence of such a chamber (which could consist of any number of judges in excess of two) would on the one hand relieve the full Court of a burden that it could not conveniently carry out by itself, and on the other permit the judges assigned to the chamber to acquire sufficient expertise so that that organ would commend itself to states as a particularly attractive forum to which to submit disputes of this type.

Actually, the second condition mentioned above is one unlikely to be realized: the Court, which is necessarily composed of senior international lawyers, is unlikely, either as a whole or through a dedicated chamber, to acquire a real expertise in the scientific and technical aspects of environmental disputes70 - though this objection might be met by appointing some expert assessors who could participate in the work of the chamber without a vote.71 Consequently, a different model commends itself: The international community could, either by treaties72 or by decisions of the General Assembly, establish one or more environmental courts to settle disputes under particular regimes (e.g., all those relating to the atmosphere, or all those relating to IMO-administered ocean-pollution treaties); naturally, in each case the states concerned would have to agree. These courts, staffed with technically expert judges, could then serve as the fore of first instance for these disputes, while any residual questions of international law (e.g., relating to treaty interpretation) could be referred to the ICJ either by the States Parties to the dispute or by use of the advisory proceeding device activated by a suitable organ authorized to address requests to the ICJ (which might be the court of first instance itself, if it is one created as an organ of the United Nations).73

The ICJ could also become more readily available to the international environmental community by use of its advisory competence. First of all UNEP, or whatever organ succeeds it as the lead organ within the United Nations for environmental matters, might be authorized by the General Assembly to request advisory opinions of the Court within the scope of the organ's activities. Furthermore, various treaty organs associated with the UN system might be assisted in securing legal advice from the Court by authorizing a suitable UN organ, such as UNEP, to pass on their queries to the Court.74 Although the Court might well be reluctant to permit such a device to be used to settle disputes between states that could submit them directly to the Court's contentious jurisdiction, it would still be useful both for the settlement of disputes to which an international organization, such as a treaty organ, is a party, and to resolve genuine legal queries that arise in the course of formulating new or administering existing international environmental regimes.

2. Improving and extending subsidiary organs

(a) Upgrading UNEP

If the proposals discussed under heading 1(e) above are carried out to establish one or more new principal UN organs to deal with environmental matters, then these would presumably replace the existing UNEP Governing Council. With respect to the Environment Secretariat, heading 1(f) explored various possible enhancements and transformations, at least some of which might be undertaken even without any change in the political organs.

In any event, if the United Nations does assume, with or without a Charter amendment, greater responsibilities in respect of environmental protection, then a corresponding upgrading and transformation of UNEP will be called for. The principal feature of such enhancement should of course be the provision of greater financial resources, preferably reliably from assessed contributions, but perhaps reinforced with political arrangements for more generous voluntary ones. As to functions, those of the Programme itself (as distinguished from that of its organs: the Council, Environment Secretariat, and Fund) might be defined, though the lack of such specificity has not so far hampered its operations. For example, normmaking, and in particular the progressive development and codification of international environmental law, might be explicitly referred to75 and perhaps spelled out in terms of specific procedures to be followed;76 however, while such specificity might to some extent strengthen the treaty-making activities of UNEP (which, as pointed out above, are already quite vigorous), it might also inhibit the fruitful inventiveness with which these activities have so far been pursued.

One other way in which such an enhancement could come about would be through a steady increase in the number of treaty organs that UNEP arranges to service. Presumably each such treaty organ would have its own budget, the financing for which would be provided by those states that are parties to that treaty regime, or possibly in part by contributions from interested non-parties.77 The advantages and disadvantages of relying on such treaty regimes are discussed under heading 3 below.

Finally consideration might be given, and this is discussed under heading 4 below, to transforming UNEP into an independent international intergovernmental organization, preferably into a specialized agency.

(b) Organs for coordination and cooperation

The Administrative Committee on Co-ordination (ACC), with the assistance of DOEM (described under heading A1[c] above), apparently carries out its environment-related tasks as well as necessary and feasible, given the difficulty of coordinating a number of international entities that were deliberately created separate for diverse political reasons and that ultimately answer to different constituencies.78 Evidently, if other parts of the UN system are changed, e.g., if UNEP were to be superseded or supplemented by a new specialized agency, this would have to be reflected in ACC's membership and perhaps in its operations.

Whatever new intergovernmental organizations are created within or at the periphery of the UN system, they would presumably be encouraged to participate in the "common system of personnel administration" and to utilize the several organs established therefor, and also to participate in other joint administrative organs that assist governments in imposing certain common standards on operationally diverse international organizations.

3. Treaty organizations and organs

For the most part modern multilateral treaties do not only establish rights and obligations for States Parties, but also create some sort of organs to help to develop and implement the consequent legal regime. This has been particularly true of environmental treaties, which mostly function in rapidly developing fields in respect of which it is recognized that static legal obligations can in no way suffice, and which are complicated enough so that at least some of the parties, and perhaps all of them, require assistance and probably some stimulation in executing the undertakings adopted.

In some cases such a treaty creates what is merely a minimal, though complete, international organization consisting of at least one political representative organ (e.g., periodic meetings of States Parties), an expert organ to carry out further studies, to receive reports from the individual parties, and to make proposals to the meetings of parties, and a secretariat, perhaps consisting of only a few persons, to service the political and any expert organs.79 Such organizations typically rely for many purposes (e.g., premises, nonspecialized secretariat services, etc.) on larger, established international organizations, often the one under whose auspices the founding treaty was negotiated.

In other cases the international organization is not quite complete, typically lacking any independent secretariat. When this is so, the treaty normally foresees that some other organization, again typically the sponsoring one, will provide the secretariat services on a temporary or permanent basis.80 When such arrangements are instituted, some of the activities of the assisting organization become partially governed by the representative and other organs being serviced, so that these are then referred to as "treaty organs" of the servicing organization.

Evidently, both these types of arrangements are potentially very flexible' and this is one of their attractions to those formulating the treaties in question. Often enough the latter are actually fooled into believing that some absolute savings can be achieved by not providing for the establishment of a new secretariat, which are known to be expensive and with a Parkinsonian drive to self-enhancement. What is often forgotten is that the missing secretariat is merely established within the bowels of the sponsoring organization, with all the usual requirements for budgetary support and tendencies to grow.

An excessive proliferation of such mini and incomplete international organizations is, however, undesirable from a different point of view. Evidently, it is more difficult to coordinate and supervise the separate activities, decisions, and staffs of numerous small organizations than to do so in respect of one or two large ones with prominent executive heads who make periodic reports on all the activities of their organizations to well-attended periodic meetings of representative organs. One solution is to combine a number of such organizations and organs operating in related fields into a single one, in effect consisting of a sizeable secretariat simultaneously servicing many different representative and expert organs; this is the design of the World Intellectual Property Organization (WIPO), a UN specialized agency.

4. Specialized or related agencies of the UN

More and more, in arranging for the international governance of some field or activity, the emphasis has shifted from the static to the dynamic, in that the States Parties agree not so much to any specific obligations but rather establish a mechanism for studying the subject in question, for formulating guidelines and rules to be followed by states or other entities, for giving technical or material assistance in complying with such standards, for monitoring compliance, for advising what to do if lack of compliance is detected, and for taking any consequent action decided through an agreed procedure.

The normal instrument of choice to take the actions summarized above is an intergovernmental organization, established at an appropriate level, i.e. universal, regional, subregional, or defined by some other relevant criterion. As is well known, during the past decade some hundreds of such organizations have been created, including many at the worldwide level, to deal with subjects as diverse as labour conditions, public health, maritime affairs, or intellectual property. On the other hand, a few international organizations have a wider mandate, dealing with many different subjects. Whether or not a particular subject, such as environmental protection, should be dealt with in a specialized or in a general organization depends in part on whether the nature of the subject requires a sufficient assignment of material and human resources to justify an independent entity, on how closely that subject is related to others that should be dealt with in a more general context, and on whether political or other factors suggest that the subject requires attention close to the centre or may be assigned to the periphery of the relevant international system. As conditions change, the answer to these questions may also change: thus, in 1950, the International Refugee Organization (IRO), originally established at the conclusion of WWII as a UN specialized agency, was reduced to becoming a quasi-autonomous UN organ, the Office of the High Commissioner for Refugees (UNHCR); on the other hand, in 1975 it was decided that the United Nations Industrial Development Organization (UNIDO), which had originated as a Secretariat unit and had later become a quasiautonomous UN organ, should be converted into a specialized agency with the same name.

Evidently, not all independent international organizations are UN specialized agencies, which are defined in UN Charter Article 57 as "established by international agreement and having wide international responsibilities... in economic, social, cultural, educational, health and related fields" that are brought into relationship with the United Nations by means of an agreement concluded pursuant to Charter Article 63(1). Thus, to qualify, an organization's tasks cannot be so narrow as to negate the characterization of "wide... responsibilities'';81 it cannot be merely regional, for then it might more appropriately become a specialized agency of one of the regional organizations (such as the Organization of American States - OAS); it has to have a sufficiently large membership so as to associate with the United Nations on a par with the other worldwide organizations whose activities it coordinates through ECOSOC and the ACC;82 and it has to agree to conclude a relationship agreement that implies a certain subordination to the central organizations and a willingness to cooperate with it and the other specialized agencies, in part through common administrative or coordinating organs.83 If for some reason any of these factors are absent or distorted, then the organization may still become one "related" to the United Nations (such as the IAEA), or merely tied to it by a cooperation agreement (such as the World Tourism Organization - WTO).

The question therefore is whether the field of environmental protection is one suitable for the establishment of an, or perhaps of even more than one, independent international organization, and whether such organization should then aspire to specialized agency status.

First of all, assuming that the function of the proposed organization is to be primarily norm-making, especially in the form of treaties, it should be noted that in different fields this is precisely the function of the International Labour Organisation (ILO) and of the World Intellectual Property Organization (WIPO); on the other hand it might also be argued that since environmental instruments to be effective require a far higher rate of participation than the typical ILO Convention or WIPO treaty receives, it might be preferable to maintain a treaty-generating organization within the United Nations itself where the prestige of the General Assembly can reinforce the specialized political organs of an environmental unit. Furthermore, if what is under consideration is legislation to become automatically binding on all states, this could only be accomplished through an amendment of the UN Charter- for the alternate route, a powerful international organization that all states would voluntarily join within a relatively brief span of time, seems impractical of attainment.

Should the potential enforcement function be in the foreground, it could be pointed out that a similar function, i.e. the implementation of safeguards on peaceful nuclear activities, is one of the primary ones of IAEA, a UN "related agency." On the other hand, if the proposed enforcement would require the imposition of coercive sanctions, it might be considered preferable to concentrate such powers in the United Nations, even if a new principal organ (see 1[e] above) would have to be established for that purpose. Also, if the sanctions are to apply to all states, they would have to be imposed by a UN organ.

This having been said, it should once more be recalled that amendment of the UN Charter is not an easy or well-established route,84 unlike the frequent resort to the establishment of new organizations to meet particular urgent needs of the world community; as recalled above, there is even a precedent (that of UNIDO) for converting a quasi-autonomous UN organ, such as UNEP now is, into a specialized agency. Moreover, if the primary roles of the new organization are to carry out studies, assist in voluntary monitoring, provide technical assistance, raise consciousness about environmental matters, and to serve as a secretariat and general support for environmental treaty organs and organizations, then an independent organization, but preferably one within the UN system, might provide the best combination of flexibility and coordination.

Instead of or in addition to converting UNEP into an independent agency, it is also possible that one or more international organizations be established to deal with specific important environmental problems or areas, such as the implementation of a regime to deal with climate change or more generally with protecting the atmosphere. Whether such organizations would qualify as, and would wish to become, specialized agencies would depend on their membership and on their perceived role in the world community.

D. Conclusion

The environmental consciousness of the world community is growing at a rate unprecedented for the spread of any intellectual concept or the acceptance of new ways of defining the interaction of humanity and nature. Almost surely the result of this growth will be an early (i.e., at or soon after the 1992 Conference on Environment and Development) need to restructure the current international institutional arrangements for dealing with environmental protection, so as to achieve greater prominence, power, and coherence. As this study seeks to show, there is no lack of institutional models, for most of which there are precedents, though some reflect designs yet to be implemented, for accomplishing whatever the world community is prepared for at this juncture, when outmoded military preoccupations are suddenly though belatedly yielding to more urgent economic and scientific imperatives.


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