Transcript The International Rule of Law, Treaties on Sustainable

The International Rule of Law,
Treaties on Sustainable
Development and Compliance
By Palitha T.B. Kohona
Vientiane, 7 –9 October 2003
Outline
This presentation will explore four themes:
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The gradual advancement of the international rule of
law covering a range of sectors.
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In parallel, and as part of this process, the expansion of
the treaty network on sustainable development issues.
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Ensuring compliance, both domestic and international.
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Implications for International Trade Rules.
The Consolidation and the Advancement
of the International Rule of Law Is Slowly
Gathering Pace
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Was a major challenge for the international community, in
particular, for the United Nations.
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in the past, a preoccupation of international lawyers and
diplomats – surrounded by a mystique of its own.
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now also a concern for individuals and civil society.
– Due to the complex implications of international law,
particularly treaty law to the lives and livelihood of
individuals and on the business activities of corporations.
– Whether, farming, industry, manufacturing or trade.
Justice and Respect for Treaty Obligations
– a Great Opportunity
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Justice and respect for the obligations arising from treaties and
other sources of international law - a key goal of the Charter.
– For many years, various factors, prevented necessary
resources being deployed.
– The cold war was a critical factor.
– NOW, a great opportunity.
Cold War Developments
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Even during the height of the cold war some development
occurred.
– Many multilateral treaties concluded under the auspices of
the United Nations or its agencies.
– The environment, human rights, humanitarian affairs,
terrorism, international criminal matters, refugees,
disarmament, commodities, organised crime, the oceans,
transport, communications, space, etc.
• Global rules, enhancing interdependence, contributing to
better living standards and improving the world in which
we live.
The Late 1980s and the 1990s - an
Explosion of Multilateral Treaty Making on
Environmental Issues
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Mounting problems relating to the environment.
– Pollution of the seas.
• Major accidents resulting in catastrophic oil spills.
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Acid rain and the destruction of lakes and forests in Europe.
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Smog, particularly severe in London and LA.
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Ozone depletion and skin cancer scares.
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Science identified the problems.
– IPCC made convincing recommendations on global warming.
The Position of Developed Countries
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Tremendous political pressure in developed countries.
The protection of the environment became a political issue.
It made a quantum leap and began impacting on main stream
politics.
Later, became a core issue even for conservative parties.
Extensive civil society activism:
– First, groups such as Greenpeace - the Rainbow Warrior.
– Later thousands joined these movements.
Governments demonstrated clear political will.
– Issues identified, details worked out through excruciating
negotiations and agreements reached.
The Role of Developing Countries
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Developing countries began to play a crucial role.
The importance of their active participation recognised.
– They were financially assisted to participate.
They themselves recognised their bargaining power.
– Ambassador Das Gupta of India commented "For once we
have something to bargain with. Either we address the
environment together or go down together".
The immense political pressures being exerted by civil society in
developed countries was not missed by developing countries.
Establishment of Common Principles
In the process, certain basic principles were established.
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Common but differentiated responsibility for dealing with the
environment.
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The need to assist developing countries with finances and
technology to address environmental problems.
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The need to meet environmental and developmental needs.
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Trade policy measures should not constitute arbitrary or
unjustifiable discrimination.
Application of Common Principles
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These principles carried over to the other treaties.
Treaties concluded on the:
– depletion of the ozone layer,
– climate change,
– preservation of biodiversity,
– desertification,
– hazardous wastes,
– persistent organic pollutants,
– long range pollution,
were all the subject of multilateral conventions.
Multilateral Treaties Deposited With the
Secretary-General of the United Nations
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Of the numerous multilateral treaties concluded since
1945, many deposited with the Secretary-General of
the United Nations.
They number over 500.
These govern the behaviour of states and establish
enforceable rights and obligations among them.
They also reflect the concerns and dreams of
ordinary people and civil society and affect the lives
of individuals and corporations.
Over 55 multilateral treaties on the environment.
Issue of Compliance
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The level of compliance by states with international
legal obligations has been gradually consolidated.
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Growing expectation of a need to comply.
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Breaches widely reported and extensively discussed.
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Non-compliance is always justified on the basis of
some other rule or an interpretation of the rules.
Individual and National Activities to
Ensure Compliance
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An array of individual and national activities are undertaken on
the basis of international rules, in particular treaties.
– Safe passage of thousands of ocean going vessels from one
country to another, etc.
– Environment rules.
– Customs regulations.
– Trade rules.
– Laws of the seas.
– Laws on piracy.
– Laws on health and sanitary matters.
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Each country possesses detailed legislation and administrative
and technical mechanisms in place to ensure compliance.
– Some domestic laws, regulations and practices have been
developed even in the absence of international rules in
response to public demand.
– Recycling, conservation of water, non-use of ozone depleting
substances, etc.
– Exporters from developing countries will need to comply
with these requirements
• Restrictions can be imposed as long as they are
GATT/WTO consistent.
The Role of the Private Sector
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Private sector has also responded to the growing web of
international rules on the environment by taking measures to
ensure compliance.
– Emissions trading is a reality – The EU has agreed on a
framework
– Some countries are implementing it – UK, Denmark and in
Chicago.
• Only a little while ago the private sector was
uninterested in it.
Major corporations have begun to associate themselves with
this concept – BP, Ford, Dupont to name a few.
Insurers and re-insurers have begun to pay attention to the
issue of climate change and sea-level rise.
Practical Measures to Ensure Compliance
Practical measures relied upon under environmental conventions to
ensure compliance:
 An excellent example is found in the compliance mechanism
under the Montreal Protocol
– Lessons derived from existing treaties.
 The emphasis is on initial voluntary compliance - not resort to
coercion
– Assistance is provided to ensure compliance
– Breaches or inability to comply can be brought to the
attention of the treaty body even by the party concerned
– Other entities could also raise possible breaches with the
treaty body
– Every effort made to assist with compliance
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The treaty body will make a finding of non-compliance only
after all other measures to ensure compliance have failed.
– An example for future compliance mechanisms.
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Trade measures have also been employed
– To encourage wide participation,
– Compliance, and
– Discourage migration of manufacturing activity to non
members.
Technical Assistance by Treaty Bodies to
Ensure Compliance
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Many treaty secretariats provide assistance with the technical
implementation of treaty obligations.
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Montreal Protocol, Basel Convention, etc.
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Some of this assistance comes from non-governmental sources IUCN, WWF.
Financial Assistance to Ensure Compliance
Financial assistance provided under many treaties to ensure
compliance
 GEF
– designated financial mechanism for biodiversity, climate
change, and persistent organic pollutants. Also supports
combating desertification and protection of international
waters and the ozone layer.
 UNDP
 UNEP
 World Bank
– has established an environmental department and a strategy
on “Environment, Growth and Development”.
 Bilateral aid
Private Sector Funding - Investment
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Many major investment management houses are acutely
conscious of the need to take the environment into account.
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Because of local laws and regulations and also due to share
holder pressure.
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Lobby groups also exert tremendous pressure.
The Resort to Pressure –
Naming and Shaming Approach
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Widely relied upon under human rights treaties.
– Not only are governments permitted to participate in the
examination of the performance of states, even NGOs have
a role.
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In many cases, this works – in others more work is required.
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We are dealing with sovereign states.
Information Provided to Non-state
Entities
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Increasingly, greater levels of information provided to non-state
entities and individuals under legal mechanisms.
For example, Arhus Convention on Access to Information.
Convention ensures that non-state entities and individuals have
access to all information on which environmental decisions are
based.
Serves two objectives.
– Non-state entities will be well informed about the decision
making processes relating to environmental issues.
– States will be cautious about the decisions that they make.
Other conventions have begun to incorporate these elements.
Increasing Role of the NGO
Increasingly active role of the NGO community in the development
of international environmental norms.
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Proactive role domestically in pressuring governments to comply
with international norms, including through the enactment of
legislation.
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Participate actively in global negotiations, including by being
members of government delegations, especially developed
country delegations.
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Advise governments.
Additional Measures Taken by the
Secretariat to Encourage Compliance
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Secretariat has developed a programme to advance the
international rule of law entitled: A PROGRAMME FOR AN ERA
OF APPLICATION OF INTERNATIONAL LAW.
– The Organisation, in its Millennium Declaration, further
affirmed the importance of the international rule of law.
As the first measure:
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in 2000, the Millennium Year, a campaign to encourage wider
participation in the multilateral treaties deposited with the SG.
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a key awareness raising effort.
– Many treaties negotiated with meticulous care and adopted
with great enthusiasm had, after many years, not achieved
universal participation.
– Some not even in force.
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The event proved to be a major success.
– Decided to hold such an event each year.
Treaty Events
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In 2001, a treaty event entitled, Focus 2001 – Rights of Women
and Children,
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In response to the terrorist attacks on the US, a treaty event
focused on terrorism related treaties was also organised in
November 2001.
– Treaty Event – Terrorism Related Treaties.
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In 2002, a treaty event entitled FOCUS 2002 - SUSTAINABLE
DEVELOPMENT was organised to coincide with the WSSD.
– A booklet by the same name has been issued, in English and
French.
– It covers 25 key treaties and contains their summaries and
status.
– 41 countries undertook 83 treaty actions.
– May have been more successful if the event took place in
Johannesburg.
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This year: FOCUS 2003 – TREATIES AGAINST ORGANIZED
CRIME
Teaching and Training
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The Programme further recommended that the UN initiate
measures to ensure the domestic application of these
multilateral treaties,
– including through the better training of lawyers and judges
in countries in need.
– A key element in order to ensure due implementation.
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The UN encourages law schools to offer international law as a
subject since a significant number of law schools around the
world does not do so.
– Modern international norms have a direct impact on the lives
and livelihood of individual persons and on the business
activities of corporations.
– For example, provisions of the United Nations Framework
Convention on Climate Change and its Kyoto Protocol will
impact at the micro level; on the way people work, on types
of work, modes of transportation, on the use of creature
comforts such as heating and air conditioning, etc.
– Lawyers will serve their clients better with a clearer
understanding of these international norms.
– The Legal Counsel of the United Nations has written to legal
advisors of foreign ministries seeking their assistance
– Web site of the Office of Legal Affairs of the United Nations
(www.un.org/law) provides information on assistance
available within the UN system.
The UN Treaty Collection on the Internet
The Treaty Section of the UN has placed on the Internet its
massive collection of treaties:
 Over 50,000 bilateral treaties and a similar numbers of related
actions registered with the United Nations pursuant to Article
102 of the Charter
 The daily updated status information on over 500 multilateral
treaties deposited with the Secretary-General.
 The full texts of bilateral treaties in their original languages
(over 140) with translations into English and French, registered
up to 1998, and by the end of 2003, treaties registered up to
2001.
 Ready source of precedents, contributes to the development of
legal norms and ensures transparency in international
interaction – a key objective of the draftsmen of the Charter
when they incorporated Article 102.
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Since Individuals and NGOs play an increasingly proactive role
in the development and subsequent implementation of
international legal norms.
– The ready availability of the of UN Treaty Collection on the
Internet
• will facilitate more informed discussion,
• assist in the further democratisation of the international
law making processes, and
• contribute to better implementation of treaty obligations.
– The UN Treaty Collection on the Internet is accessed over
1,000,000 times every month.
– Available free of charge to NGOs and users from developing
countries in addition to governments.
Other Technical Assistance
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The Secretary-General has recognised that certain countries lack
the necessary expertise and resources to ensure implementation
of their obligations.
– Accordingly, the Secretary-General has said, "In order to
build national capacities to implement treaties more
effectively, I have requested every office, department,
programme, fund and agency of the United Nations to
review, its current activities and to consider what else it
might do, within its existing mandate and given existing
resources, to promote the application of international law,
and to provide technical assistance to help Governments
implement their commitments under the treaties to which
they are or might wish to become parties".
This commitment has implications at two levels:
 Assistance will be provided to countries to become party to
treaties at the international level, i.e., to sign and ratify, accede
to or undertake other treaty actions.
 Secretariat has prepared a treaty handbook to provide guidance
to countries to undertake treaty actions.
 Document available in English and French, including on the
Internet.
 The Handbook is being supplemented with training sessions for
legal officers assisting governments and others.
– Three training sessions have been conducted so far in New
York.
– This year, the training focused on treaties dealing with
organised crime.
– First regional training in Laos.
United Nations Interdepartmental Group
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At a secondary level, the UN will mobilise and coordinate
resources to assist countries to give effect to their international
obligations at the domestic level.
– Interdepartmental Group was established.
– The IDG prepared a report on available assistance within the
UN system.
– A major challenge, as the resources available to the United
Nations are woefully inadequate.
• Some training and assistance already takes place
through UN bodies and specialised agencies, such as the
UNDP, UNCITRAL, UNEP, WIPO, ILO, the UN High
Commissioner for Human Rights, etc.
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The relevant information has been placed on the web.
Certain NGOs provide assistance and training and, increasingly,
are being sub-contracted for this purpose by UN bodies and
governments.
The International Committee of the Red Cross is very active in
the areas of Human Rights and Humanitarian Affairs.
Professional associations have also begun to contribute.
Government funded bilateral assistance is available and is being
utilised to an ever increasing extent.
The UN could further cooperate with key NGOs and even private
sector firms.
Web Based Assistance
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A number of web sites established by the Secretariat and organs
and agencies of the United Nations provide assistance to states
on various aspects of the international legal order.
Conclusions
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The contribution made by the United Nations to consolidating
and advancing the international rule of law is significant.
– not dramatic and has not been headline material,
– a quiet and effective achievement.
– In one respect it has been clearly successful.
• The culture of compliance with international rules of
conduct has begun to pervade the international
community today.
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Much remains to be done before it could be claimed that the
Organisation has realised its Charter mandated responsibility.
– The advancement of the international rule of law will
contribute to ensuring
– predictability and security in international relations,
– accountability for breaches of international norms – and, increasingly, to protecting the global commons and
individual rights.
Advancement of the International Rule of
Law
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Advancement of the international rule of law is a key goal for
the United Nations
– The Secretary-General has observed, "The expansion of the
rule of law in international relations has been the foundation
of much of the political, social and economic progress
achieved in recent years. Undoubtedly, it will facilitate
further progress in the new Millennium". Furthermore, he
said, "The new millennium is an appropriate occasion to
reaffirm the primary objectives of our Organisation and
focus on them anew. Establishing the rule of law in
international affairs is a central priority".
Copyright Notice
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Copyright 2003 by the United Nations. All
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