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Annex: The learning capacity of international organizations
Whether or not the international community as a whole has a learning capacity is difficult to establish, because of the highly amorphous and unstructured nature of that entity. However, to the extent that community increasingly acts through international organizations, and in particular through intergovernmental organizations (IGOs), such a learning capacity can be both affirmed in general terms and studied in particular instances.
Like all complex but structured entities, human organizations obey many of the same rules that biological ones do - though the regularity of that conformity may be more difficult to establish, in part because the building blocks of organizations (ultimately, human beings) are infinitely more complex than those of biological organisms (such as cells), and largely because there are many orders of magnitude more of the latter so that these can be subjected to statistical and other analyses that are impractical in respect of social organizations. But organizations, like organisms, strive to maintain their existence, seek to perpetuate themselves, are territorial and aggressive when their immediate environment is threatened - in other words, unlike Asimov's idealized mechanical creatures, they obey his Third Law of Robotics without being bound by the First and Second.1
One attribute of complex organisms, or of organizations of complex organisms, is the ability to learn - often a necessary device for self-perpetuation. In international organizations this capacity can of course be best observed when dealing with the carrying out of distinct repetitive activities, e.g., a series of technical assistance projects or the negotiation of a series of parallel international agreements. Following are some examples of activities of particular organizations that have been carried out over a sufficient period of time that it should be possible to observe developments attributable to learning. (NB: Not all changes in established programmes are due to learning: some may represent reactions to changed material or political circumstances, or responses to fashions, or random consequences of new leaders or managers.)
A. The negotiations of treaties, e.g., by:
1. The International Labour Organisation (ILO)
2. The Council of Europe
3. The World Intellectual Property Organization (WIPO)
4. The International Maritime Organization (IMO, formerly IMCO)
B. The granting of assistance to countries, e.g. by:
1. The International Monetary Fund (IMF)
2. The World Bank (IBRD and IDA)
3. The UN Development Programme (UNDP)
C. The granting of assistance to individuals, e.g., by:
1. The International Committee of the Red Cross (ICRC)
2. The UN High Commissioner for Refugees (UNHCR, building on the experience of the League of Nations' Commissioner and that of the International Refugee Organization (IRO))
3. United Nations Children's Fund (UNICEF)
D. Regulatory activities, in the fields of:
1. Narcotic drugs
2. Nuclear controls:
a. Safety
b. Safeguards against diversion for military purposes
3. Environment:
1. Protection of various types of animals
2. Regional seas agreements
E. Operations:
1. European Centre for Nuclear Research (CERN) (building successively larger accelerators)
2. International Satellite Communication Organization (INTELSAT) (securing and operating a series of increasingly complex geostationary satellites)
Most IGO learning is unconscious, unsystematic, and more or less constant. That is, by a series of generally unsolicited negative and positive feedbacks, an organization carrying out a certain type of activity will naturally adjust its procedures to avoid past mistakes and to emulate successes. To what extent it can and does so may depend on the extent rigidities are built into its systems: for example, if the constitutional and other legal instruments governing the IGO are very detailed, or the political controls are very strict because of tensions among leading participants, then even adjustments clearly called for by experience may be slow in coming. Similarly an IGO that has had a recognized record of success may be slow to change in response to altered circumstances, even when signs abound that the old ways no longer correspond to current needs. Thus well-established organizations, frequently led and staffed by older people (unless a conscious effort is made to avoid this danger) may be less able to learn in natural and automatic ways.
However sometimes - and perhaps increasingly so as self-conscious management techniques became more prevalent- learning is becoming more of a conscious, systematic, and often episodic process. That is, from time to time the parent organ (in respect of a subsidiary) or the governing organ or chief administrator decides to take stock and to engage in a process of self-examination (sometimes with the help of outside consultants) with a view to improving future performance by studying past successes and failures. For example, during the past several years the United Nations has been scrutinizing and analysing its past "peace-keeping" ("Blue Helmet") operations, as well as its experiences in supervising or conducting referenda and elections, with a view to extracting patterns of successful approaches and devices from which to create models for future operations. Alternatively, standing organs (such as the UN system's Joint Inspection Unit [JIU], which was in many ways modelled on the US General Accounting Office (GAO), Congress's administrative watchdog) are created for the purpose of carrying out evaluations on an automatic and steady basis; such organs of course have the primary task of grading past activities, but as in other learning situations the purpose of grading is in large part didactic.
Sometimes, of course, wrong lessons are "learned" - such as by the cat that jumps once on a hot stove and thereafter will never jump on any stove again. Just so, an organization once burned by a particular failure (or even an overly costly success) may evermore, or at least for a long time, avoid any similar operations, even if clearly distinguishable, in details or by general circumstances, from the one inducing the bad memories. (No doubt there are examples in many IGOs; in the UN one could mention the Congo operation; the Third UN Conference on the Law of the Sea; and the early acrimonious and fruitless Security Council debates on its procedural rules and its agenda -which have still left the Council with a set of "Provisional Rules of Procedure," with a cumbersome and unrealistic list of over 100 largely completely outdated items of which it is allegedly "seized," and with a needlessly complicated procedure of examining even uncontentious membership applications.)
Incidentally, organizations can learn from one another, and even from one another's mistakes. There are many examples of conscious transfers of experiences and procedures, from a founding organization to a new spin-off (e.g., from the UN to the IAEA and UNIDO) or from an established senior organization to a newcomer in a similar field (e.g., from the World Bank to the Inter-American and the Asian Developments banks, and to some extent also to the International Fund for Agricultural Development [IFAD]). Joint management organs, such as the JIU, or even private management consultants that work successively for several IGOs, can carry warnings of mistakes or news of useful techniques from one client to another.
There are other examples of learning, which perhaps are more analogous to an infant starting to walk or talk, when an IGO tackles an entirely new field of activity, i.e. one not only new to it but one that no IGO, and perhaps no one at all, has undertaken before. For example, when INTELSAT started its operations, it did so largely under the tutelage of its US participant: COMSAT; once it had gained some years of experience with ordering and operating communication satellites, it shed its dependency and started operating on its own.
The IAEA's experience in establishing safeguards to prevent the diversion of nuclear materials from peaceful to military activities is one of a different sort, for prior to the Agency no international or national organization had carried out any nuclear controls, indeed any controls of any sort that offered even a useful analogy. (One that was often referred to in the early days of the IAEA, but that really turned out to be of minimal utility, was the system of drug controls evolved under the League and taken over by the UN.) So, the Agency deliberately started its safeguards activities slowly, with simple facilities, in non-contentious situations. Some of the important stages in this process were:
a. The conclusion of an experimental, initial safeguards agreement for a "project" in which the Agency had been asked to assist in the transfer of three tons of natural uranium from Canada to Japan, which request was explicitly made for the purpose of getting the Agency's project and safeguards machinery going so it could gain some experience.
b. The formulation, very painfully, of a "Safeguards Document," i.e. a set of principles to be observed and to be taken into account in the conclusion of safeguards agreements with member states, covering only nuclear facilities with quite minimal power.
c. The negotiation of a series of safeguards agreements based on the first Safeguards Document, each successive text differing from the previous one as new insights were gained. (Incidentally, the ability to improve successive tests in situations of this kind is limited, be cause each agreement is known to all states, and each party to such an agreement watches jealously that it is not treated worse than another state. In effect it is recognized that it is most difficult ever to move from lighter to more severe controls and that thus over time, in an entropy-like process, the tendency is steadily towards a less-burdensome regime; consequently an effort is also made to start any new series of agreements with overly severe conditions. All this of course inhibits the "learning" process, for experience gained cannot always be fully utilized.)
d. After some experience had been gained in negotiating real safeguards agreements for small facilities, the USA offered the Agency an opportunity to test its system on some larger reactors, which of course would not be really safeguarded because the USA in any event had a substantial military programme and thus had no need to "divert" materials to it from its nascent nuclear power programme. Thus the conclusion and implementation of this agreement with the USA were explicitly to provide the Agency with a learning experience.
e. At this stage the Agency formulated an extension of its earlier Safeguards Document, based on its experience in implementing the latter, to cover somewhat more powerful facilities. This exercise having gone smoothly, a completely new and improved Safeguards Document was adopted, rather rapidly.
f. Thereafter a comparatively large number of safeguards agreements were formulated, as states gained confidence in the Agency's system. As the latter was by then well-established, successive agreements differed only minimally from each other.
g. Another result of the increasing confidence in the Agency's safeguards was the decision to rely on that system in implementing the Tlatelolco and Non-proliferation treaties. This, in turn, necessitated the Agency formulating yet another Safeguards Document attuned to those two treaties but taking into account all the experience gained in the formulation and implementation of the previous versions.
h. The implementation of the NPT and Tlatelolco treaties required the conclusion of a larger number of safeguards agreements than ever before. By now, however, the system was relatively mature, and successive agreements rarely differed significantly from each other: in this respect, the learning curve had become saturated and thus flat. However, learning continued and continues in respect of the techniques for implementing safeguards.
i. As suggested in (c) above, control standards tend to deteriorate over time because it is practically impossible, without some extraneous impulse, to apply stricter measures in a later agreement than in an earlier one with another state - while there is apt to be a demand for applying any concession made earlier even if the context is different from the one that originally justified it. It is this process of deterioration that led the Agency to give up on carrying out any truly intrusive inspections - the lack of which in Iraq permitted its government to build up a most extensive clandestine nuclear weapons programme, which was only disclosed when the Agency received an extraordinary mandate from the Security Council after Iraq's defeat in the Gulf War. The consequent disclosure of how extensive a military programme had for many years escaped the Agency's limited scrutiny carried out to monitor compliance with the government's obligations under NPT is currently leading to a thorough re-examination of the safeguards system, with a view to tightening it so as to avoid future debacles. It is thus likely that the Agency, and the world community, will have learned from this experience. Rather similarly, the IAEA and the world community have received some harsh lessons about the downside of the previously relaxed attitude towards national implementation of adequate safety standards in operating nuclear facilities. In the wake of first the near disaster of Three Mile Island, and then the genuine catastrophe of Chernobyl, the Agency is belatedly considering how to make compliance with certain minimum standards compulsory and possibly even subject to its controls. Unfortunately, the initial indications are that the lesson, that this is another area in which unrestricted national sovereignty must yield to transnational concerns, appears not yet to have been adequately learned, for the Agency-convened September 1991 International Conference on Nuclear Safety and the organs following up on its recommendations still take as their starting point a restrictive interpretation of the Conference-enunciated principle that "safety should primarily be enforced at national levels."
There are evidently some less self-conscious examples of learning within and between international organizations. One example is the General Assembly's technique, which it copied repeatedly after the initial success with the Universal Declaration of Human Rights, of preceding many of its major treaty-making projects by a solemn declaration that serves to guide the negotiations while also creating in the meantime a soft-law regime expressing the main principles to be observed- a regime that may even harden into customary law before or soon after the codification process is completed. In the human rights field we have the examples of the several declarations on Racial Discrimination, on Discrimination against Women, on the Elimination of Torture, and on the Rights of the Child, all followed by corresponding conventions; in other areas one could mention the Declarations of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space and of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction. Another successful device that started in the human rights area and is now being examined for wider application, including in respect to environmental regimes, is the reinforcement of the substantive obligations of a treaty by the creation of an expert control organ to which the parties must submit periodic reports on their compliance and that may also be authorized to examine certain accusations against the parties. In the environmental field itself, the technique of starting with a basically procedural framework convention to be complemented by one or more substantive protocols was pioneered in the Geneva Long-Range Transboundary Air Pollution Convention and then followed spectacularly in the Vienna Ozone Protection Convention, which in turn has become the model for the current negotiations of a Climate Protection Convention.
A quite different, and ultimately less successful effort of an IGO attempting consciously to learn from its own experience and from that of other organizations, was the nearly decade-long study carried out in the Legal (Sixth) Committee of the UN General Assembly on the Multilateral Treaty-making Process. The purpose of the exercise was to see whether the UN could improve its very extensive and ever-more significant treaty-making activities, carried out through a multitude of general or specialized organs, by systematically studying the experience gained in the past in these organs as well as in other organizations. Ultimately, even though much valuable data were assembled and analysed,2 political constraints prevented the drawing of any really useful conclusions.
There can thus be no doubt that IGOs can and do learn. However, there are constraints on that process, and just like other types of entities, some are better students than others, and some are better students at certain stages of their development than at others. lGOs are also becoming more conscious of the need to include systematic learning exercises in their programmes if they are to avoid becoming obsolete or unable to tackle certain new tasks. To learn from one's own experience it is necessary to build into all significant programmes effective feedback cycles. To learn from the experience of others it is necessary to remain alert to what others are doing and to be prepared to change one's own programmes in response to successes and failures experienced by others - something that may require more perspective than many organizations can muster. But, as IGOs become more regular features of the international landscape it may be expected that systematic management techniques, including conscious "learning," will be adopted by more and more of them.
1. Paraphrased, compliments to Asimov, the three laws are: (1) no robot may harm a human being; (2) subject to the first law, no robot may permit harm to come to a human being; (3) subject to the first and second laws, no robot may permit harm to come to itself.
2. Review of the Multilateral Treaty-Making Process, UN Publication ST/LEG/SER.B/21, Sales No. E/F.83.V.8 (New York, 1985). See P.C. Szasz, "Reforming the Multilateral Treaty-Making Process: An Opportunity Missed?", International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Y. Dirnstein, ea.. Martinus Nijhoff, 1988), 409441.
12. Intergenerational equity: a legal framework for global environmental change
I. The temporal dimension in international
law
II. Alternative approaches to
intergenerational equity
III. Principles of intergenerational equity
IV. Intergenerational rights and obligations
V. Implementation of intergenerational equity
Notes
Edith Brown Weiss
Sustainable development rests on a commitment to equity with future generations. In 1972 the United Nations Stockholm Conference on the Human Environment recognized that we had a responsibility to "protect and improve" the environment for both present and future generations. In 1992, we are faced with defining and implementing this commitment to future generations in the context of environmentally sustainable development.
Global environmental change affects our capacity to achieve sustainable development; it may help or hinder this process, although the focus is more on the latter. In turn, economic development causes global environmental changes. The implications of global environmental change are inherently long-term and require that we address equity issues that span two or more generations.
We have developed economic instruments to try to satisfy the needs of the present generation efficiently, but these are not adequate for addressing equity issues with future generations. While the incorporation of externalities is intended to ensure that the benefits from a proposed action exceed the costs and that those who bear these costs be adequately compensated, in practice it operates from the perspective of the present generation. Environmental externalities are focused primarily on the costs that the present generation bears in polluted air, water, and soils from industrial development, in deforestation, and in other aspects of economic development. The discount rate is used to consider future costs and benefits, again from the perspective of the present generation. Reliance on the discount rate to consider the future means that short-term benefits nearly always outweigh long-term costs, in part because long-term costs to the environment are hard to quantify.
International law has been fundamentally concerned with questions of fairness. It addresses the normative dimension that economic instruments implement. If we are going to achieve intergenerational equity, it is essential to analyse this normative relationship between generations. This chapter sets forth a theory of intergenerational equity in the context of global environmental change.
I. The temporal dimension in international law
International law has always been concerned with justice, but usually between states in their present or past relationships with each other. Concern with intergenerational equity requires attention to the normative relationship between present and future generations.
In the past states have made general claims for intergenerational justice in few areas: the debates over a new international economic order) and the negotiations for the Law of the Sea Convention regarding exploitation of seabed minerals.2 Intergenerational issues have recently surfaced in debates over responsibility for paying for mitigation of anticipated global environmental change, such as climate change or ozone depletion, resulting from countries' past and present industrial activities.
International law to date has addressed intertemporal issues primarily in the context of relating the present to the past. In public international law, an intertemporal doctrine applies to territorial claims and to certain other rules of customary international law and to several aspects of treaties. In private international law it is reflected in questions of choice of time, as in conflict-of-law rules.
In public international law, Judge Huber enunciated the intertemporal doctrine in the classic Island of Palmas Arbitration,3 which involved a dispute between the United States and the Netherlands over sovereignty of the small Pacific island. As described by Judge Huber, the doctrine has two elements: that acts should be judged in light of the law at the time of their creation; and that rights acquired in a valid manner may be lost if not maintained in a manner consistent with the changes in international law.4 The principle has been subsequently applied in a number of cases before the International Court of Justice, including the Minquiers and Ecrehos Case, The Western Sahara Case, The North Sea Continental Shelf Case, and the Aegean Sea Continental Shelf Case.5 While the first element of the intertemporal doctrine has been widely accepted as a basic principle, the second has been controversial.6
In 1975 the Institut de Droit International adopted an authoritative resolution on intertemporal law that encompasses both elements of the doctrine.7 The Institute's restatement extended beyond Judge Huber's formulation only in that it encouraged states to develop agreement among themselves on how to handle intertemporal problems that might arise in negotiating treaties and other agreements. It did not, however, extend beyond the classical formulation to include other related intertemporal issues, such as the development of international law by international declarations and resolutions of the United Nations General Assembly.
Although most disputes raising the intertemporal doctrine have involved territorial claims, the doctrine is applicable more broadly to other issues in customary international law and to treaties. For example, in the 1971 Namibia Advisory Opinion,8 when the World Court considered whether South Africa's presence in Namibia by virtue of its 1919 League of Nations Mandate continued to be valid, it concluded that the meaning of "sacred trust" had evolved to "self-determination and independence of the people," which did not sustain South Africa's claim. While the Court did not refer to intertemporal law, MacWhinney has correctly characterized it as embracing it.9 Similarly, Judge Elias notes that the doctrine of intertemporal law has also applied to the customary law of sovereign immunity.10 The doctrine of intertemporal law applies to treaties as well as to customary international law, as indicated in The Grisbadarna Case, and the North Atlantic fisheries Case.11 The deliberations of the International Law Commission in drafting the convention on the law of treaties revealed, however, divergent opinions and approaches to the precise formulation of the doctrine.12 There are several intertemporal issues raised by treaties: the proper interpretation of a treaty over time, the continuing validity of a treaty in the face of changed circumstances, and retroactive application. The Vienna Convention on the Law of Treaties contains specific provisions addressing these issues, although the doctrine of intertemporal law is not explicitly mentioned.13 Customary international law doctrines, such as pacta sunt servanda and rebus sic stantibus, respond to the intertemporal question of the continuing validity of treaties.14
Intertemporal issues also arise in the context of procedural rules set by international tribunals. For example, the rule that local remedies must be exhausted raises issues such as the appropriate time to pursue local remedies, the point at which the pursuit is considered to be exhausted, and the appropriate time for raising objections based on this rule.15 These issues have been particularly important in human rights cases, particularly those in Europe where the European Convention on Human Rights provides that the European Commission of Human Rights may address the issue of exhaustion of local remedies only within six months from the date of the final domestic decision.16 While the time frames for these procedural intertemporal issues is relatively brief, the issues nevertheless demonstrate that we are already addressing intertemporal issues routinely in international law in relating the present to the past.
Intertemporal problems also occur in private international law. They arise primarily as conflicts in time of rules of private international law adopted in a particular country, conflicts in time of rules of intertemporal law of the lex ford and lex causae, and conflicts of time and space caused by changes in the connecting factor.17 In the late 1970s, the Institut du Droit International undertook a comprehensive study of intertemporal problems in private international law that included both questions of applicable law and of relevant jurisdiction.18 In 1981 the Institute adopted a resolution setting forth applicable rules to govern intertemporal problems in private international law.19
Intertemporal problems are common in national legal systems. Frequently they appear as conflict-of-law questions. The civil law tradition has a well-developed theory in conflicts-of-law cases of intertemporal law that invokes such distinctions as "intertemporel," "droit transitoire," and "conflit mobile," terms that have no ready equivalence in English or the common law traditions.20 The common law system addresses the temporal dimension in conflicts of law empirically as it arises in specific cases. Courts have often reached contradictory conclusions on temporal issues in these cases.21
Temporal issues also arise in tort liability cases, most notably in compensatory claims by people who were exposed to radiation, harmful drugs, or toxic substances years previously. The numbers of cases have increased, as environmental harms from activities a decade or more ago emerge.
Thus, there is a temporal element in many aspects of public international law, private international law, and national legal traditions. The theory of intergenerational equity proposed in this chapter, which addresses the relationship between present and future generations, as well as past, extends the basic concern we already have with intertemporal problems to a longer time horizon.
Since World War II, states have expressed concern in international legal documents for the welfare of future generations. A growing number of international agreements, declarations, charters, and United Nations General Assembly resolutions reflect such concern and set forth principles or obligations intended to protect and enhance the welfare of both present and future generations. Even the United Nations Charter, drafted in the aftermath of World War II, affirmed the universal concern for the welfare of future generations in its opening paragraph: "We the peoples of the United Nations, determined to save succeeding generations from the scourge of war..."22
Concern for justice to future generations regarding the natural environment first emerged as a major concern in the preparatory meetings for the 1972 Stockholm Conference on the Human Environment.
The preamble to the Stockholm Declaration on the Human Environment expressly refers to the objective of protecting the well-being of future generations, "... to defend and improve the environment for present and future generations has become an imperative goal for mankind - a goal to be pursued together with, and in harmony with, the established and fundamental goals of peace and of world-wide economic and social development."23 The Declaration's first principle provides that "man... bears a solemn responsibility to protect and improve the environment for present and future generations," while the second declares that the "natural resources of the earth, including the air, water, land, flora and fauna... must be safeguarded for the benefit of present and future generations through careful planning and management."24 The Stockholm Conference led directly to the creation of the United Nations Environment Programme (UNEP). The explicit concern for future generations and for enhancing the environment were new contributions to the process of developing international law in this area.
The concept of protecting the natural environment for future generations was explicitly incorporated into the language of three treaties negotiated more or less contemporaneously with the Stockholm Declaration: the 1972 London Ocean Dumping Convention, the 1973 Convention on International Trade in Endangered Species, and the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage.25 The regional seas conventions that were subsequently negotiated under UNEP carried forward concern for future generations.26
There have been other international agreements in the last two decades that have contained language indicating either a concern for sustainable use of the environment or a concern for future generations, sometimes by reference to the common heritage of mankind.27 Other legal instruments evidence similar concern. The 1982 World Charter for Nature, not a formal agreement, refers explicitly to a global concern for the heritage we leave to future generations.28 At the tenth anniversary of the Stockholm Declaration, countries reaffirmed the continuing validity of the Declaration and urged "all Governments and peoples of the world to discharge their historical responsibility, collectively and individually, to ensure that our small planet is passed over to future generations in a condition which guarantees a life in human dignity for all."29
The more recent attempts to develop a precautionary principle in international law reflect concern about the effects of our actions today on the environment of future generations. The principle attempts to answer the question of when to constrain activities that risk harming the environment in the future. It was first endorsed in 1987 at the International Conference on the North Sea and has been invoked most extensively in marine instruments. It has been heatedly invoked during the negotiations for a climate change convention.
While there has been considerable debate about the principle and its content, there is no single agreed formulation. The Group of 7 Ministerial Declaration in July 1990 stated (in relation to climate change) that "in the face of threats of irreversible environmental damage, lack of full scientific certainty is no excuse to post-pose actions which are justified in their own right."30 The UN Economic Commission for Europe ministerial meeting in Bergen in May 1990 declared: "Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation."31 Since there is never scientific certainty but always some uncertainty, these formulations do not address the difficult issues of whether, when, and how to take action against identifiable risks.32 The fall 1991 meeting of parties to the London Ocean Dumping Convention adopted text that provides a useful formulation of a precautionary principle in a specific context.33
The internationally evolving precautionary principle has deep roots in the domestic environmental statutes and regulations of countries, many of which focus on pollution prevention in water, air, and soils. This approach reflects a growing willingness to relate the present to the future in legal norms.
The concern already expressed in legal instruments with the environment we pass to future generations serves as an important starting point in defining and implementing international legal principles for achieving justice among generations: past, present, and future.