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1. UNEP was established by General Assembly Resolution 2997 (XXVII) of 15 December 1972, entitled "institutional and financial arrangements for international environmental cooperation," which was reaffirmed by Resolution 31/112 of 16 December 1976. It should, however, be noted that the former resolution does not explicitly establish the Programme evidently because of the reluctance at that time to create new international institutions but rather establishes a Governing Council of the United Nations Environment Programme (section 1), an Environment Secretariat (section 11), an Environment Fund (section 111), and an Environment Co-ordination Board (section IV), which, some years later, as a consequence of the directive in pare. 54 of the Annex to A/RES/32/197 of 20 December 1977 on "restructuring the economic and social sectors of the United Nations system," was in effect replaced by the interagency board of Designated Officials on Environmental Matters (DOEM), a UNEP-created quasi-subsidiary of the Administrative Committee on Coordination (see the 1982 Annual Report of the UNEP Executive Director, Ch. III, pares. 16- 18).
2. This term refers to UN subsidiary organs, for the most part established by the General Assembly, whose executive head is appointed in some collaborative fashion between the Secretary-General and the Assembly (e.g., the UNEP Executive Director is "elected by the General Assembly on the nomination of the Secretary-General for a term of four years," A/RES/2997 [XXVII], pare. 11.2), has its own political organ (e.g., the UNEP Governing Council), and whose financing is usually provided largely outside of the UN Regular Budget appropriated by the Assembly (for UNEP, see note 3 below).
3. For 1990, UNEP received approximately $4.8 million from the UN Regular Budget, $52.3 million from contributions to the Environment Fund, $18.7 million from 13 general and 26 technical cooperation trust funds, and $5.2 million from counterpart contributions. The Regular Budget funds, which only cover administrative costs, financed 46 of the total of 3X5 posts, and for many years now have only been adjusted for inflation (pursuant to the UN's zero-growth budgeting). It should also be noted that although the contributions to the Environment Fund have increased from year to year over the past decade, if considered in real terms they have decreased in most years and a big jump in 1990 only restored them to their 1980 value. See UNEP 1990 Annual Report of the Executive Director (Nairobi, 1991), Chapter V and Annex 111.
4. See A/RES/3004(XXVII) of 15 Dec. 1972.
5. See chap. 2, sect. D.
6. Systematic information about UNEP activities can be obtained since 1982 from the Annual Reports of the Executive Director, and from the recently introduced and episodically published UNEP Profiles (which set out cumulative information). The Reports of the UNEP Governing Council to the General Assembly (always published as Supplement No. 25 to the Official Records of the General Assembly) merely report on the Council's biannual (and sometimes special) sessions and are not particularly informative. UNEP also issues a very considerable number of miscellaneous publications reporting on or describing particular programmes, projects, subsidiary or associated organs, or reproducing the texts of various legal instruments or expert committee reports; unfortunately, these papers are rarely numbered and are thus hard to cite and even harder to find; no complete publications catalogue exists. Information about selected technical assistance and other projects can be found in the annual Evaluation Reports (e.g., that for 1989 reports on 15 projects).
7. See the series of publications entitled UNEP Regional Seas Reports and Studies.
8. For example, the 1976 Barcelona Convention for the Protection of the Mediterranean Sea Against Pollution, supported by two simultaneously adopted Protocols for the Prevention of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft and concerning Co-operation in Combating Pollution of the Mediterranean Sea by Oil and Other Harmful Substances in Cases of Emergency, the 1980 Athens Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-Based Sources, and the 1982 Geneva Protocol Concerning Mediterranean Specially Protected Areas.
9. UNEP/GC/DEC/10/13 of 31 May 1982.
10. UNEP/GC/DEC/SS.I/3 of 18 Mar. 1988. The Plan is reproduced in document UNEP/ GCSS.I/7/Add. 1, and inter alia sets out, in over 400 paragraphs, the "problems addressed," the "general objective," the detailed "specific objectives," the "system-wide strategy," and the "implementation of the strategy" on some 32 programmatic items grouped under 16 headings.
11. A/RES14V186 and 187 of 11 Dec. 1987.
12. For example, the Economic Commission for Europe (ECE) - for many decades the only body in which east and west European states' as well as Canada and the United States, regularly collaborated - in 1974 established as a subsidiary organ the Senior Advisers to ECE Governments on Environmental Problems (ECE/DEC/8[XXIX] of 29 April 1974). Under the sponsorship of the latter, the Co-operative Programme for Monitoring and Evaluation of the Long-Range Transmission of Air Pollutants (EMEP) was established, followed by the 1979 Geneva Convention on Long-Range Transboundary Air Pollution (LRTAP) and its 1984 Geneva Protocol on the Long-Term Financing of EMEP, the 1985 Helsinki Protocol on the Reduction of Sulphur Emissions, the 1988 Sofia Protocol on the Control of Nitrogen Oxides Emissions, and the 1991 Protocol on Volatile Organic Compounds.
13. A/RES/913(X) of 3 Dec. 1955. At present the Secretary of UNSCEAR functions within the UNEP Secretariat.
14. AIRES/441228 of 22 Dec. 1989. By pare. 11.5 of the resolution, a special secretariat was established to service the PrepCom and eventually the Conference; the failure to assign this function to UNEP (the off-spring of the 1972 Conference) was no doubt a major political
15. ECOSOC has some subsidiary organs operating in related areas, such as the Population Commission (a `'functional commission"), the Committee on Natural Resources, the Commission on Human Settlements, and the Committee of Experts on the Transport of Dangerous Goods, as well as the already mentioned Regional Commissions.
16. See sub-item 77(e) of the agenda of the forty-sixth regular session. See also the biennial programme of work for the Second Committee for 1992-1993, General Assembly Decision 46/455 of 20 Dec. 1991.
17. See, e.g., A/RES/46/150 (study of Chernobyl disaster),/167 (women, environment, population, and sustainable development),/168 (UNCED),/169 (climate),/208 (environment and international trade),/215 (large-scale pelagic drift-net fishing),/216 (environmental consequences of Gulf War),/217 (preparation for environmental emergencies), and decisions 46/460 (environment and agricultural policies),/462 (UNEP Governing Council report),/463 (documents relating to the environment), as well as/417 (environment and armed conflict - adopted on the report of the Sixth Comitee)
18. A/RES/37/7 of 28 Oct. 1982.
19. A/RES/42/186 of 11 Dec. 1987, Annex.
20. AIRES/421187 of 11 Dec 1987. The Commission's Report is set out in A/42/427 (also published as Our Common Future).
21. Most members of the UNEP Governing Council maintain special representatives in Nairobi to deal with UNEP business, and these naturally establish close relations with its staff and Executive Director. Aside from the few formal meetings of the Governing Council, the Executive Director from time to time convenes the Permanent Representatives to UNEP, which thus constitute an unofficial organ that he advises of new developments and consults on certain matters requiring decisions.
22. It could be argued that the recently filed Passage through the Great Belt (Finland v. Denmark) case, which concerns the right of Denmark to build a bridge over an international strait that might block the passage of some Finnish vessels, may be considered to have an environmental aspect. Interestingly enough, the Corfu Channel, Merits, Judgment, 1949 I.C.J. 4, which is one of those frequently cited by international environmental lawyers, was not really about the environment at all (unless one considers that placing mines in international straits is an environmental offense), but did express a strong affirmation of the sic utere principle, later put into environmental terms as the oft-cited Stockholm Principle 21.
23. For example, the secretariats of CITES and CMS, as well as of the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, are provided by UNEP on a permanent basis, and that of the 1985 Vienna Ozone Convention and the 1987 Montreal Protocol on an interim basis.
24. For example, ECE provides the secretariat for the Long-Range Transboundary Air Pollution Convention and its Protocols.
25. 126 UNTS 237.
26. 150 UNTS 67.
27. 247 UNTS 400.
28. 801 UNTS 101.
29. Southwest Asia. 1963, 529 UNTS 217; Near East, 1965, 592 UNTS 215; Northwest Africa, 1970, 797 UNTS 97.
30. 21 FAO Conference Resolution 8/81.
31. 22 FAO Conference Resolution 8/83.
32. FAO Publication M-30.
33. 23 FAO Conference Resolution 10/85.
34. See Man Belongs to the Earth (Unesco, 1988).
35. 11 I.L.M. 1358 (1972).
36. 19 I.L.M. 524 (1980).
37. World Bank Operational Manual, OD 4.()0. Annexes A, A1, A2.
38. 327 UNTS 3.
39. IMCO/RESA.232(VII), I I.P.E. 378.
40. 1046 UNTS 12O, 11 I.L.M. 1294 (1972).
41. 30 I.L.M. 735 (1990).
42. IAEA INFCIRC/274.
43. IAEA INFCIRC/310.
44. Respectively, IAEA INFCIRC/335, 25 I.L.M. 1370 (1986). and IAEA INFCIRC/336, 25 I.L.M. 1377 (1986).
45. IAEA INFCIRC/386.
46. It is evidently the function of the 1992 follow-up conference on Stockholm, that is the United Nations Conference on Environment and Development (UNCED), to try to achieve a reconciliation of the two concepts; an important measure of its success will be the perception of the extent to which it will have managed to do so. So far the most important statement on this subject is the 1987 Report of the World Commission on Environment and Development, established by the UNEP Governing Council (UNEP/GC.11/3 of 23 May 1983), which Report was endorsed by the General Assembly (A/RES/42/187 of 11 Dec. 1987). For an earlier Assembly statement on this subject, see pare. 8(a) of A/RES/38/161 of 19 Dec. 1983.
47. See note 4 above.
48. For a brief discussion of the various functions listed here. see "Possible Functions of a Global Regime to Mitigate Climatic Change,' in P.C. Szasz. "The Role of International Law: Formulating International Legal Instruments and Creating International Institutions," in 15:1 Evaluation Review, 7, at 8-18 (Feb. 1991, an issue devoted to "Managing the Global Commons"). See also P.H. Sand, Lessons Learned in Global Environmental Governance (World Resources Institute, June 1990).
49. See chap. 3, A above.
50. Indeed, that question was one of the principal ones considered by and reflected in the report of the Meeting of Legal and Policy Experts on the Changing Atmosphere, convened by the Canadian Department of External Affairs in Ottawa. February 19X9.
51. Described more fully in chap. 2 above.
52. In 45 years, Charter amendments have only been adopted to Articles 23, 27, 61, and 1()9, in order to increase the size of the Security and the Economic and Social councils to adapt these to the growth in the membership of the Organization.
53. UN Charter, Art. 108.
54. This subject is discussed at greater length in the Annex to this Chapter.
55. China, compared to San Marino - a ratio of about 60 thousand to 1!
56. This, in effect, is the objective of the "Binding Triad" proposal of the Center for War/Peace Studies. This proposal would give the General Assembly power to adopt binding international law, but would require that proposed legislation be adopted by: (1) a qualified (probably two-thirds) majority of the Member States; (2) a specified percentage (not necessarily a majority - so as not to give the two or three largest states a collective veto) of the world's population; and (3) a specified percentage of the financial (whether only assessed, or assessed plus voluntary) contributions to the Organization. Such a formula (which would not require the Assembly to split into three chambers, but only that each vote cast in the existing single chamber be counted in three different ways) would ensure that binding decisions could only be adopted if supported by most states, including the large and economically significant ones.
57. For example. in the IAEA certain decisions, such as on membership and the adoption of the annual budget, require the concurrence of the General Conference, in which all members are represented (now around 112), and of the Board of Governors, which consists of just 35 members, weighted towards those with significant nuclear activities.
58. Respectively UN Charter, Arts. 4-6 and 97, and Art. 10(1)-(2) of the ICJ Statute.
59. Arts. 41 and 42 of the UN Charter, read together with Arts. 25 and 48(1).
60. It should, however, be noted that the Security Council may be preparing to carve out a role for itself in respect to the environment. At the unique summit (i.e. heads of states and of governments) meeting of the Council on 31 January 1992, it included the following in its final declaration (S/23500, p. 3): "The absence of war and military conflicts amongst States does not in itself ensure international peace and security. The non-military sources of instability in the economic, humanitarian and ecological fields may become a threat to peace and security. ' (emphasis added)
61. It might, however, be noted that while the use of military force under Charter Article 42 to enforce an environmental decree of the Security Council would probably never be called for, the use of collective economic pressures under Article 41 might be more effective in respect of environmental offences than it is in respect of military breaches of the peace, because in respect of the latter domestic political considerations may preclude yielding to merely economic pressures, while ultimately almost any environmental dispute can be reduced to economic terms so that the exercise of sufficient pressure of that nature should accomplish the Council's purpose.
62. The argument would run this way: Under Charter Article 39, the Security Council may determine the existence of any threat to the peace and may also decide what measures are to be taken to restore international peace and security. Although what was evidently foreseen in these provisions is that the Council may, when faced with a particular incident or situation (e.g., the invasion of Kuwait), make the indicated determination and decisions; however, it would not seem entirely precluded that the Council might consider a particular practice (e.g., the testing of nuclear weapons, or their very existence) to constitute a threat to the peace and forbid all states from engaging in that practice - i.e., in effect issue general legislation rather than a mere injunction. If, then, the Council can also decide that certain anti-environmental practices (e.g., emitting gases that destroy a neighbouring state's forests or the earth's ozone layer) threaten peace (either because they are provocative and may invite unilateral military intervention or because they impact on the "security" of other states - see note 60 above), it might then "legislate" against such practices.
63. It might, however, be noted that in the International Labour Organisation, one of the oldest of the UN's specialized agencies and clearly an intergovernmental organization (IGO), the representative organs (i.e. the International Labour Conference and the Governing Body) are so composed that each state has two governmental representatives, and one each representing the employers and the employees (i.e. the labour unions) of that country - all four representatives having equal votes.
64. For example, even though in the United Nations itself and in most of the specialized and related agencies the one-nation one-vote principle prevails, in the financial institutions (IMF), World Bank, IFAD) votes are weighted by capital investment in these institutions.
65. As pointed out in note 48 above, one might, however, argue that in spite of the several contrary grounds discussed under (b) above, the Security Council already has the bases for the necessary legislative powers in existing Charter provisions, particularly those in Chapter
66. For example, the composition of the Maritime Safety Committee of IMO is determined by taking into account the tonnes of registered shipping of each IMO member. The Governing Body of ILO includes states with high industrial output, and the Board of Governors of the IAEA states advanced (in the subjective view of the Board itself) "in the technology of atomic energy including the production of source materials".
67. However, a consensus or unanimity requirement should be avoided, because that gives every state, no matter how small or outrageously governed, an absolute veto.
68. It is not entirely clear whether the General Assembly-created post of Director-General has survived the first reorganization announced by the new Secretary-General in early February 1992.
69. The Court itself has recently considered the establishment of an environmental chamber. It reported to the General Assembly that it had taken the view "that it was not necessary to set up a standing special chamber" as it could always, under Article 26(2) of its Statute, create a special chamber to deal with a particular case (A/4114, pare. 14 ).
70. A particular difficulty is that whatever set of judges is assigned to a special environmental chamber, it is not likely necessarily to commend itself politically to all parties that might bang environmental disputes, and therefore such parties are likely to prefer a politically congenial set of judges to ones that might have acquired some special expertise on the general subject of the case.
71. The possibility of appointing assessors, of which no use has vet been made by the World Court, is provided for in Article 30 of its Statute and in Article 9 of the Rules of Court.
72. These treaties might be substantive ones dealing with particular environmental regimes, so that the provisions in question would merely constitute part of the disputes provisions of these instruments. However, there might also be some treaties that merely deal with the settlement of disputes - like the Optional Protocol on the Compulsory Settlement of Disputes that accompanied the four 1958 conventions relating to various aspects of the law of the sea (450 UNTS 169); such specialized treaties could cover disputes arising out of a particular contemporaneously adopted instrument, or could deal with disputes under specified existing instruments, or even with those that might arise under a certain class of future instruments (e.g., all those formulated by or under the auspices of a specified environmental organ).
73. Under Charter Article 96(2), the UN General Assembly is empowered to authorize other UN organs or any specialized agency to request advisory opinions "on legal questions arising within the scope of their activities." The Assembly has used this authority, inter alia, to establish the Committee on Applications for Review of Administrative Tribunal Judgements, which has as its sole function the evaluation of requests by certain specified entities (including staff members of the United Nations) that an ICJ advisory opinion should be sought in respect of a particular Tribunal judgement (Article 11 of the Statute of the UN Administrative Tribunal); the Court, in its Advisory Opinion on the Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, 1973 I.C.J. 166, specifically upheld the Assembly's power to do so and the Court's authority to respond to questions addressed to it by the Committee. There would therefore appear to be no fundamental obstacle to the Assembly creating other subsidiary organs empowered to address questions to the ICJ in relation to a decision of a specialized environmental court, whether or not the parties to the dispute agree in advance to accept such an advisory opinion as final.
74. See the immediately preceding note.
75. This is a power specifically assigned to the General Assembly by Charter Article 13(1)(a), and which the latter has often partially delegated to various organs, such as the International Law Commission (ILC).
76. For example, as in the ILC Statute (A/RES/174[III] - as amended); for the latest text of the Statute and an authoritative discussion of the operations of the Commission, see The Work of the International Law Commission (United Nations, 1988) UN Sales No. E.88.V.1.
77. It should, however, be pointed out that in the human rights field, in which a number of successful and important treaty organs function under UN auspices, the financial discipline of the States Parties to these organs has often left much to be desired (see A/44/668, A/45/636, and AIRES/46/111, pares. 7-12).
78. In a sense, the ultimate constituencies, i.e. the states or rather the governments of the world community, are always the same - except insofar as regional organizations represent different selections of these entities. However, in practice, the World Health Assembly, whose representatives are largely appointed by national ministries of health and who are quite likely to be medical doctors, constitutes a quite different body than the Sixth (Legal) Committee of the UN General Assembly, which, while consisting of practically the same states, is composed of lawyers and diplomats appointed from and by foreign ministries. Though in principle national governments are supposed to coordinate their various representatives in different international organizations and organs, such coordination is often at best imperfect, and as a result these organizations may have quite different approaches to the same problem.
79. For example, the 1946 Washington International Convention for the Regulation of Whaling (161 UNTS 72) provides for an International Whaling Commission (in which each party is represented), which has established a Technical and a Scientific Committee and is serviced by its own secretariat.
80. For example, the 1979 Geneva Convention on Long-Range Transboundary Air Pollution (LRTAP) (18 I.L.M. 1442 ), provides for an Executive Body (consisting of the representatives of the contracting parties, meeting within the framework of the Senior Advisers to ECE Governments on Environmental Problems) and that the secretariat functions be provided by the Executive Secretary of ECE.
81. The 1946 Whaling Convention (note 78 above) foresaw the possibility that the Commission would become a UN specialized agency (Article 111.6) - a development that was never realized, either because it was considered that the Commission did not really have "wide" enough responsibilities, or because the membership (initially 6, and only 39 in 1990) never became sizeable enough (see note 82 below).
82. As of the beginning of 1991, the specialized agencies with the smallest membership were the World Intellectual Property Organization (WIPO) with 124, and the International Maritime Organization (IMO) with 133; the two UN-"related" agencies, the International Atomic Energy Agency (IAEA) and the General Agreement on Tariffs and Trade (ICITO/GATT), had 112 and 97 members respectively. These numbers are higher than that of the number of participants in all but very few international environmental treaties. 83. It should be noted that this subordination is very slight in respect of the international financial institutions, such as the International Monetary Fund (IMF) and the World Bank and its affiliates, nor do these participate in the "common system" of personnel administration or in organs such as the Joint Inspection Unit (JIU).
84. See note 52 above.
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