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11. Restructuring the international organizational framework
A.
The current structure
B. Some objectives of and constraints on
possible improvements
C.
Changes to be considered
D.
Conclusion
Notes
Annex: The learning capacity of international
organizations
Notes
Paul C. Szasz
1. Description
Even more rapid than the increase in the real threat of environmental problems has been the exponential growth in the seriousness with which these are taken and in the cost of the solutions that have been or are being contemplated. It is therefore by no means surprising that the rather modestly designed institutional structure installed by the United Nations two decades ago at the dawn of the international environmental age is now no longer fully suitable to operate or even just to steer the massive efforts undertaken and planned to counter both present and especially anticipated dangers to Planet Earth. But before deciding what should and might be changed, it is useful to describe briefly the current structure of environment-related institutions now functioning within the international community.
(a) Within the United Nations proper
The rather slight - though still remarkably effective - centre-piece of the world organization's efforts in this field is of course the United Nations Environment Programme (UNEP), the product of and successor to the 1972 United Nations Conference on the Human Environment in Stockholm. Formally a subsidiary organ of the UN
General Assembly,1 and one of a number of quasi-autonomous subsidiary organs of the United Nations itself,2 UNEP consists in effect of a political organ, the 58-member Governing Council, and of a "small" Environment Secretariat headed by the UNEP Executive Director (one of some 25 Under-Secretaries-General of the United Nations). Its small administrative budget is part of the Regular Budget of the Organization for which all Member States are assessed, but its operational activities are in large part financed from an Environment Fund fed from unrestricted voluntary contributions and for the rest from dedicated trust funds established for individual projects or programmes.3 For purely political reasons (an abortive attempt to decentralize the UN System into the developing world) unrelated to UNEP's functions, its headquarters are located in Nairobi,4 far from the offices of the international institutions whose environ meet-related activities it is charged with guiding and coordinating. It reports to the General Assembly through the Economic and Social Council. With its modest resources, UNEP has over the past two decades operated a remarkably varied and important set of programmes, which include the stimulation of research, the collection and coordination of data, publications, education, the sponsorship of negotiations leading to the adoption of international treaties and the establishment of numerous specialized environmental organs, as well as the issue of guidelines and other types of "soft law."5 Some of the most important activities, projects, and accomplishments are the following:6
1. Ozone Layer. UNEP sponsored the negotiations leading first to the 1985 Vienna Convention for the Protection of the Ozone Layer and to its 1987 Montreal Protocol, becoming the interim secretariat for the treaty organs (e.g., the Meetings of the Parties) to both instruments; in the latter capacity it assisted in the Helsinki and London meetings at which important amendments to the Protocol were negotiated and adopted, and in subsequent ones for establishing the Fund called for by the London amendments.
2. Climate: UNEP and WMO co-sponsored the Intergovernmental Panel on Climate Change (IPCC) in which the scientific, technical, and political foundations were laid for the negotiation of a regime to protect the global climate from greenhouse warming.
3. Hazardous Wastes: In 1987 the UNEP Governing Council adopted the Cairo Guidelines and Principles for the Environmentally Sound Management of Hazardous Wastes, and UNEP sponsored the negotiations that led to the adoption of the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal.
4. Marine Environment: In 1974 UNEP initiated its Regional Seas Programme,7 which now covers 11 distinct seas, for each of which an Action Plan has been adopted by the states concerned (some 120 in all the programmes), eight of which are being implemented by a respective framework convention supplemented by one or more protocols8 (by now, 18 in all).
5. Fresh Water: Under its Programme for the Environmentally Sound Management of Inland Water (EMINWA), UNEP has sponsored the 1987 Zambezi Action Plan, and is assisting in the negotiation and preparation of such plans for Lake Chad and for the Aral Sea.
6. Land Degradation: With the assistance of FAO and Unesco, UNEP prepared and in 1982 the Governing Council adopted a World Soils Policy.
7. Forests: UNEP has cooperated with a number of other UN agencies in developing FAO's 1985 Tropical Forest Action Plan, and assisted in formulating the environmental provisions of the 1985 International Tropical Timber Agreement.
8. Biological Diversity: In 1987 UNEP initiated the preparation of a framework convention on the protection and preservation of biological diversity. It acts as the secretariat of both the 1973 Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and of the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals (CMS).
9. Monitoring and Information Systems: Under its Earthwatch Programme, UNEP has established the Global Environment Monitoring System (GEMS), in which four specialized agencies, as well as IUCN and over 140 states participate. It established INFOTERRA, a decentralized international mechanism for the exchange of environmental information, maintains the International Register of Potentially Toxic Chemicals (IRPTC), and with ILO and WHO operates the International Programme on Chemical Safety (lPCS).
In addition, UNEP has taken a number of important initiatives for setting or resetting the UN system's environmental agenda, such as the formulation of the United Nations System-Wide Medium-Term Environment Programmes for 1984-19899 and 1990-1995,10 and the establishment of both the Intergovernmental Inter-sessional Preparatory Committee on the Environmental Perspective to the Year 2000 and Beyond and of the World Commission on Environment and Development (Brundtland Commission), the reports of which were endorsed by the General Assembly.11 It also provides secretariat services for such inter-agency organs as DOEM and CIDIE (see below). Aside from UNEP, a number of UN subsidiary organs, such as the five Regional Commissions,12 the UN Development Programme (UNDP), the UN University (UNU), the UN Institute for Training and Research (UNITAR), and many parts of the central secretariat perform environment-related functions. From time to time other permanent or temporary environmental bodies have been established, such as the UN Scientific Committee on the Effects of Atomic Radiation (UNSCEAR)13 and, more recently, the Preparatory Commission for the Conference on Environment and Development (UNCED).14
Several of the six UN principal organs perform or stand ready to perform miscellaneous functions in this area, though for each of them these are rather minor and peripheral:
1. The Economic and Social Council (ECOSOC) receives the reports of the UNEP Governing Council on each of its sessions, as well as those of most other quasi-autonomous UN subsidiaries active in areas relevant to the environment, and also those of the specialized and related agencies of the UN system. However, the Council itself has no environment-oriented main or standing committee or functional commission,15 and consequently has rarely performed any significant work or conducted any decisive debates in this field. Instead, it merely passes the UNEP report, and those of several other of the above-mentioned organs, to the General Assembly.
2. The General Assembly considers environmental issues in its already over-burdened Second (Economic and Financial) Committee, for the most part in odd-numbered years; in these, "Environment" constitutes one of several sub-items of a large collective item entitled "Development and International Economic Cooperation,"16 which from session to session is supplemented by some specifically environmental ones and is debated at a few plenary meetings before private consultations start on the texts of the ever more numerous environmental resolutions that emerge from each regular session of the Assembly - including some resolutions giving specific programmatic guidance and administrative directives to UNEP.17
In spite of the relatively scant attention that the General Assembly has until recently devoted to the environment, it has from time to time issued or endorsed important directives designed to set the environmental agenda of the international community: first the convening of the 1972 Stockholm Conference on the Human Environment and then the endorsement of its Declaration and the implementation of its structural recommendations (the establishment of UNEP); 10 years later' the issue of the World Charter for Nature;18 1987, the approval of Environmental Perspective for the Year 2000 and Beyond (evaluating the outlook and setting detailed goals and recommended actions on 10 key environmental issues)19 and the endorsement of the report of the UNEP-established World Commission on Environment and Development (the Brundtland Commission);20 and, most recently, the convening of UNCED.
3. The Secretary-General is the nominal supervisor of the UNEP Executive Director, though in effect he can exercise little influence over an official who is responsible to and has the support of his own political body (the Governing Council), the representatives to which are located far from UN Headquarters.21 The Secretary-General does have more influence over those offices of the central (or headquarters) secretariat that are charged with environment-related tasks, but these are largely peripheral to the main activities in this field.
4. Finally, it should be mentioned that while the International Court of Justice (ICJ or World Court) stands ready to decide any environment-related legal disputes that governments may decide to submit to it or to give relevant legal advice to international organs authorized to request advisory opinions, in practice no directly environmental case or request has ever been submitted to the Court.22
5. The other two principal organs, the Security Council and the Trusteeship Council, do not now have any directly relevant functions - though if any trust territories had remained under significant supervision to the present time the latter organ would presumably have added environmental concerns to the others for which it would hold the administering powers responsible.
As already pointed out, in relation to many of the new or more acute environmental concerns, such as long-range transboundary air pollution, the dangers to the ozone layer, or the need to protect some particularly threatened or fragile environment or species, special treaties have been concluded under the auspices of one or more of the above-mentioned organs. Aside from establishing and defining relevant obligations for the States Parties, some of these treaties have created full-fledged though small international organizations, with their own political organs and secretariats. These political or expert "treaty organs" in effect function within the United Nations and also constitute part of its machinery for dealing with environmental matters. For the most part the secretariat functions to service these organs have been assigned, sometimes on a permanent and sometimes on merely an interim or experimental basis, to some existing subsidiary UN organ, such as UNEP23 or a UN regional commission.24
(b) Otherwise within the UN system
Even before the establishment of UNEP, a number of the specialized and related agencies of the United Nations were assigned or gradually assumed some environment-related functions incidental to carrying out their principal tasks:
1. Food and Agriculture Organization of the United Nations (FAO): Some important pre-1972 FAO initiatives in the field of the environment include the 1949 Rome Agreement for the Establishment of a General Fisheries Council for the Mediterranean (GFCM),25 the 1951 Rome International Plant Protection Convention,26 the 1956 Rome Plant Protection Agreement for the Asian and Pacific Region,27 the 1969 Rome Convention on the Conservation of the Living Resources of the South-East Atlantic,28 and several agreements for the establishment of various regional Commissions for Controlling the Desert Locust.29 Later important FAO instruments include the 1981 World Soil Charter,30 the 1983 International Undertaking on Plant Genetic Resources,31 the 1985 Tropical Forest Action Plan (TFAP),32 and the 1985 International Code of Conduct on the Distribution and Use of Pesticides33 (along with numerous guidelines relating to pesticides).
2. United Nations Educational, Scientific and Cultural Organization (Unesco): In 1971 Unesco initiated what may be considered as a precursor of broad-based environmental programmes: Man and the Biosphere (MAB).34 In November 1972 it promulgated the Convention concerning the Protection of the World Cultural and Natural Heritage,35 which established the Intergovernmental Committee for the Protection of the Cultural and Natural Heritage of Outstanding Universal Value (the World Heritage Committee) and provides that its secretariat be appointed by the Unesco Director-General, which thus in effect functions as part of the Unesco secretariat.
3 .World Bank: The World Bank's (IBRD) environmental sensitivity grew with that of the rest of the world community. Though it is difficult to identify any pre-1972 initiatives in this field, in 1980 it joined with numerous other multilateral development institutions in a Declaration of Environmental Policies and Procedures Relating to Economic Development36 and in founding CIDIE (see below), and in November 1989 it adopted its Operational Directive on Environmental Assessment.37 In 1991 it joined with UNEP and UNDP in establishing the Global Environment Facility (GEF), which will include contributions to the Montreal Ozone Protocol's Interim Multilateral Fund. Since 1990 the Bank has issued annual Progress Reports on The World Bank and the Environment.
4. World Health Organization (WHO): Although many of WHO's public health measures evidently have an environmental aspect, its specifically environmental activities are mostly undertaken in collaboration with UNEP, such as the 1981 WHO/FAO/UNEP Memorandum of Understanding Governing Collaboration in the Control of Water-Borne and Associated Diseases in Agricultural Water Development Activities.
5. World Meteorological Organization (WMO). Although WMO's monitoring activities were originally simply weather-related, their importance for environmental affairs was soon recognized. It was instrumental in organizing the 1979 and 1990 World Climate Conferences, and in November 1988 co-established, with UNEP, the Intergovernmental Panel on Climate Change (IPCC).
6. International Maritime Organization (IMO - formerly IMCO): IMO is responsible for the negotiation and/or the administration of a number of important conventions relating to ocean pollution, including the 1954 International Convention for the Prevention of Pollution of the Sea by Oil38, (including the 1971 London Amendment concerning the Protection of the Great Barrier Reef),39 the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Ocean Dumping Convention),40 and the 1990 London International Convention on Oil Pollution Preparedness, Response, and Co-operation.41 In 1973 the IMCO Assembly established the Marine Environment Protection Committee as a standing organ.
7. International Atomic Energy Agency (IAEA): The IAEA's statutory concern for nuclear safety evidently always had an environmental aspect. Of special importance are its 1980 Convention on the Physical Protection of Nuclear Material,42 the 1983 IAEA Guidelines for Mutual Emergency Assistance Arrangements in Connection with a Nuclear Accident or Radiological Emergency,43 the 1986 (post-Chernobyl) Conventions on Early Notifica tion of a Nuclear Accident and on Assistance in the Case of a Nuclear Accident or Radiological Emergency,44 and the 1990 IAEA Code of Practice on the International Transboundary Movement of Radioactive Waste.45
As environmental concerns have proliferated, such functions have in many organizations increased in response to the demands of member states or of other intergovernmental and non-governmental international organizations. For the purpose of carrying out such functions, these organizations have from time to time established joint organs or other arrangements, such as the Joint Group of Experts on the Scientific Aspects of Marine Pollution (GESAMP- a joint organ of UN, UNEP, FAO, Unesco, WHO, WMO, IMO, and IAEA), the Committee of International Development Institutions on the Environment (CIDIE - a joint organ of by now 16 multilateral development/finance institutions, including several outside the UN system), the UNEP/WMO-sponsored Intergovernmental Panel on Climate Change (IPCC), and the WMO/Unesco/UNEP work in preparation of the Second World Climate Conference (Geneva, October - November 1990).
Finally, note should be taken of the Administrative Committee for Co-ordination (ACC), the device whereby coordination is sought among all these UN system organs and organizations at the secretariat level - as distinguished from the political one, which is principally the formal responsibility of ECOSOC, operating under the direction of the General Assembly and with the assistance of the Committee for Programme Co-ordination (CPC). ACC consists of the executive heads of the specialized and related agencies and of the quasiautonomous UN organs (including UNEP), meeting several times a year under the chairmanship of the UN Secretary-General and working with the assistance of an elaborate set of standing and ad hoc organs. With the assistance of the interagency board of Designated Officials for Environmental Matters (DOEM) (in which over a dozen UN organs and some eight agencies participate), ACC considers and makes recommendations as to the coordination of, inter alia, all those environment-related programmes and projects that fall within the purview of more than one of the participating entities, and annually makes a report (drafted by the UNEP Executive Director with the help of DOEM) to the UNEP Governing Council.
(c) Other intergovernmental organizations
Of course, not all international environmental work takes place under the auspices of the UN system. It should therefore be briefly mentioned that on the one hand there are a number of independent organizations, with significant or exclusive environmental mandates, that function in effect on a global (though usually substantially nonuniversal) basis, and on the other a number of regional and subregional organizations or organs, generally affiliated with a regional political or economic organization. Examples of the former are the International Union for Conservation of Nature and Natural Resources (IUCN) (now often called the World Conservation Union) and the International Whaling Commission; examples of regional organizations are the International Commission for the Protection of the Mosel Against Pollution and the bilateral Canada-United States Committee on Water Quality in the St. John River and its Tributary Rivers and Streams that cross the Canadian-United States Border; and examples of organs are the OECD's Environment Committee, as well as the European Environment Agency and the European Environment Information and Observation Network, both established by the EEC Council of Ministers. In general, these independent and regional organizations and organs work in reasonably satisfactory cooperation with those of the UN system, though formal coordinating organs are lacking.
2. Problems with the current structure
The principal difficulty with the present institutional structure of the UN system - as described above - in dealing with environmental matters is the insufficient clout of UNEP, both among states and among organizations. Though established consequent on the recommendation of what, in retrospect, has been recognized as the watershed 1972 Stockholm Conference, its creation was at best somewhat halfhearted - reflecting on the one hand a lack of conviction on the part of the most powerful decision makers about the importance and urgency of environmental issues (many of which were recognized only dimly or not at all in those still more innocent times) and on the other the opposition of certain less-developed states that perceived a direct contradiction between the then emerging environmental demands and the requirements of rapid development.46
The result was that UNEP was constrained in several significant ways. Its secretariat was explicitly specified as "small." Its budget was, except insofar as it could secure voluntary contributions to its Environment Fund or contracts or grants to carry out certain tasks, left to be proposed by the Secretary-General and submitted to the financial organs of the UN at Headquarters (the Advisory Committee for Administrative and Budgetary Questions [ACABQ] and the Fifth [Administrative and Budgetary] Committee of the General Assembly, and later also CPC), all operating at a great distance from and therefore not susceptible of being effectively influenced by the political and administrative organs of UNEP. And, instead of having its headquarters in Geneva, where it would have been close to most of the European-based agencies whose environment-related programmes and activities it was supposed to coordinate and guide, UNEP was exiled to Nairobi as a political concession to the third world, which wished to have at least one worldwide organ seated in one of its capitals - no matter what the cost in both monetary terms and in reduced effectiveness and influence.47 At least in part in recognition of these several constraints the preparation of the follow-up conference to Stockholm was not assigned to UNEP.
However, there are also other weaknesses in the UN's institutional structure relating to environmental questions. As a latecomer among the issues on which the General Assembly traditionally concentrates - decolonization (which, though almost completely accomplished, still consumes a disproportionate share of the Assembly's attention and appropriations), disarmament, human rights, and development assistance - the environment has regularly been short-changed in the attention it receives in ECOSOC and especially the General Assembly. While each of the just listed subjects has a plenary Main
Committee of the General Assembly almost completely assigned to it (respectively the Fourth, First, Third, and Second), environmental matters have - as already pointed out - been confined to a small part of the crowded schedule of the over-burdened Second.
Finally, even on the Secretariat level, the counsels of possible pleaders for the environment are muted. While the UNEP Executive Director has a great deal of freedom to operate his agency as he wishes far from the possibly intrusive supervision and interference of Headquarters, his voice is not included in the Secretary-General's cabinet - nor is there any other suitably high official with an environmental mandate who could speak for these issues in New York or Geneva where most of the Organization's and the System's policy decisions about economic affairs and development are made and where available resources are allocated.
B. Some objectives of and constraints on possible improvements
In deciding on whether and how to improve the present institutional structure of the UN system to make it more responsive to and in particular more effective in addressing environmental concerns, it is first necessary to determine the nature of the roles it is desired for that system to play. For this it may be useful to present a menu of potential environmental functions of intergovernmental organizations:48
1. Norm-making;49
2. Monitoring (both "macro monitoring" for overall environmental developments, such as the growth of the ozone hole, and "micro monitoring" for compliance by particular states or other entities);
3. Assessing (i.e. performing or evaluating environmental-impact assessments in respect of proposed international projects, whether to be carried out or financed by IGOs or by states, and of national ones likely to have significant international impacts);
4. Licensing (i.e. deciding whether a certain operation or enterprise is likely to be in compliance with established international environmental norms and should therefore be authorized to proceed);
5. Provision of technical assistance (technology transfers);
6. Provision of financial assistance (resource transfers);
7. Sanctions (i.e. punishment for violating agreed norms);
8. Adjudication (settlement of environmental disputes among states and other international entities, about compliance with agreed norms, damages, etc.);
9. Coordination (among competent IGOs, NGOs, etc.).
If the objective is primarily to generate new legal norms, whether embodied in treaties or in regulatory instruments or just in guidelines, and perhaps also to mobilize the probably massive resources that will be necessary to implement them, then the competent organization should be located visibly and functionally closer to the centre of power in the UN system. In particular, the arrangements should be such that the representatives on the political organs of the environmental body might overlap with or be able to interact closely with those representing the same states in organs like the General Assembly and the Executive Directors of the World Bank and perhaps also in the institutions of the European Communities. In addition, it would be useful to strengthen the specialized secretariat to enable it to service the enhanced expert and political bodies.
If, instead, the primary objective is to create organs capable of implementing, and of assisting states in implementing, the provisions of existing environmental treaties, then the location of the organization is less important but a massive increase in its budget and staff may be necessary to enable it to become an effective functional body, for example as a serious evaluator of international environmental-impact statements, or as an important executing agency for UNDP projects and a recognized subcontractor on those financed by the World Bank or by other financial institutions that include environment-protective provisions among the requirements for granting credit.
Finally, if it is considered that the time has come (as it eventually surely will) to create a body with legislative and/or enforcement powers that are not dependent on the particular consent of individual states, then it may be necessary to amend the UN Charter to endow an existing principal organ with, or to create a new one capable of exercising, whatever coercive powers the world community is ready to assign in this field to an international institution.
It should in any event be recognized that the objective of any change should not be to centralize in a new or a recast organ or organization all environmental functions assigned or to be assigned to the UN system. To do so would, aside from being administratively impractical and bureaucratically disastrously contentious, go counter to the principle that almost all international activities must be recognized as having an environmental dimension that should be taken into account in planning and executing such activity. Thus it is necessary that environmental concerns be taken into account in designing development projects, in performing agricultural research, or in designing new space activities. A specialized environmental organ can provide guidance and assistance to the organizations carrying out these other functions, but it cannot effectively intrude in actually carrying them out.
In this connection consideration need also be given to another question: Is it necessary or desirable to combine in one organization responsibility for all manner of environmental concerns, no matter how diverse these may be and no matter how divergent the requirements for their solution? Thus, should there be one all-encompassing environmental agency, or separate ones for the oceans, for each regional sea or for all of them, and for the atmosphere - and should responsibility for that medium be still further subdivided among different agencies respectively responsible for defending the ozone layer, reducing pollution, and protecting the climate?50 In deciding on how to unite or subdivide this field among actual and potential organizations, account should be taken of certain very general administrative and organizational considerations: evidently, some duplication could be avoided by reducing the number of competent organizations, as could the danger of establishing conflicting requirements; on the other hand, the larger and more complex an organization, the more difficult it is to manage it effectively.
Finally, in considering what changes should be contemplated in existing systems, it is necessary to examine how difficult it may be to get from here to there. Certain changes are mechanically easy to accomplish, such as in the nature, operations, budget, or location of subsidiary organs of international organizations; all that is required is an amendment of the resolution(s) establishing the organ, to be decided by the organ that originally adopted the resolution or by one senior thereto; thus the General Assembly could at any time, by a simple or by a qualified (i.e., two-thirds) majority vote, make any changes it considers desirable in respect of UNEP. If it is decided to create treaty organs to carry out certain functions, then it is necessary to formulate, adopt, and bring into force one or more international agreements- usually a somewhat time-consuming process,51 and one in which it may be difficult to achieve the full participation usually desirable in respect of environmental matters, except if only a regional regime is contemplated. This is also true if a new specialized agency is to be established, since the constitutional instrument of such an institution is a treaty; in addition, a relationship agreement must be concluded with the United Nations to define the place of the new organization within the UN system. Finally, if the objective is to create a compulsory regime, i.e., one that can be imposed on states, then it will be necessary to contemplate an amendment of the UN Charter - a somewhat daunting enterprise52 requiring inter alia ratification by two-thirds of the membership including the five permanent members of the Security Council (each of which thus has an effective veto power over Charter amendments); however such an amendment, once adopted, is automatically binding on all UN members53 (i.e. on practically the entire world community) - which is generally not true of most treaty actions.
In designing plans for establishing new international organizations or restructuring existing ones, account should be taken of the capacity of international organizations to learn - from their own experience and from that of others.54 This is important from two points of view: in the first place, when deciding whether an existing organization needs to be supplanted or reinforced by a new organization, account should be taken of the possibility of improving the existing one by merely stimulating any latent and possible politically long-suppressed abilities to develop, without undertaking major and difficult structural changes; in the second, in creating any new structure, it should be endowed with sufficient flexibility so that it can take advantage of experience and rise to new challenges as these may appear.