4
UNEP GOVERNING COUNCIL DECISION No. 18 (11) Implementation of the request addressed to the Governing Council by the General Assembly in its Resolution 3129 (XXVIII). entitled "Co- operation in the field of the environment con- cerning natural resources shared by two or more states" The Governing Council, Recalling the relevant provisions of General Assembly resolution 2849 (XXVl) of 20 December 1971 on development and environment, the Declaration of the United Nations Conference on Human Environment, held at Stockholm in 1972, and the impor- tant Economic Declaration adopted at the Fourth Conference of the Heads of State or Government of Non-Aligned Countries, held in Algiers in 1973, Taking into account the functions and responsibilities vested in the Governing Council and the Executive Director by the General Assembly in its resolution 2997 (XXVII) of 15 December 1972, and taking note with satisfaction of the provisions of Assembly resolution 3129 (X XV III) of 13 December 1973, and particularly of the request therein addressed to the Governing Council, 1. Requests the Executive Director of the United Nations Environment Programme, in co-operation with other organizations of the United Nations system, to prepare a study and make proposals to implement the provisions of General Assembly resolu- tion 3129 (XXVIll) and to submit them in a report to the Governing Council at its third session, with the purpose also that the report be presented to the Assembly, at its thirtieth session, bearing in mind its requirement to be informed about the implementation of that resolution; 2• Further requests the Executive Director to take the necessary measures to ensure that the provisions of resolution 3129 (XXVIII) are taken into account in prepar- ing and undertaking the relevant programme activities and to report to the Governing Council at its third session on the measures taken for the implementation of that resolution. 26th meeting 20 MarCh 1974. UNEP GOVERNING COUNCIL DECISION No. 44 (111) Co-operation in the field of the environment concerning natural resouces shared by two or more states The Governing Council, Noting with satisfaction the report of the Executive Director on co-operation in the field of the environment concerning natural resources shared by two or more States, Expressing also its satisfaction at the wok k done by the Executive Director in carrying out the tasks entrusted to him for the im- 104 plementation of General Assembly resolution 3129 (XXVIII), Taking also into consideration articles 3 and 30 of the Charter of Economic Rights and Duties of States, approved by the General Assembly in its resolution 3281 (XXIX), 1. Notes with approval the recommendations and proposals for implementing General Assembly resolution 3129 (XXVlII) con- tained in the Executive Director's report; 2. Requests the Executive Director to establish an intergovernmental working group of experts, to be drawn from among the Member States of the Council, selected on the basis of equitable geographical distribu- tion, in order to prepare, on the basis of the above recommendations and proposals and of other useful elements that it may have at its disposal, draft principles of conduct for the guidance of States in the conservation and harmonious exploitation of natural resources shared by two or more States, and to submit a report on progress made in this respect to the Governing Council for consid- eration at its next session, in order that it may be presented to the General Assembly of the United Nations; 3. Further requests the Executive Director to transmit his report to the General Assem- bly, the specialized agencies and other relevant organs of the United Nations system, including the International Law Commission, and to international governmental and non- governmental organizations which may have an interest in this field, and to invite such specialized agencies and international goverrP mental and non-governmental organizations to collaborate with the Executive Director on this subject; 4. Decides to place the question of co-opera- tion in the field of the environment concer- ning natural resources shared by two or more States on the provisional agenda for its next session. 38th meeting 25 April 1975 CHARTER OF ECONOMIC RIGHTS AND DUTIES OF STATES [Adopted by the UN General Assembly on 12 December 1974 as part of GA Resolution 3281 (XXIX) by a roll-call note of 120 in favor to 6 against, with 10 abstentions.] CHAPTER I1: Economic rights and duties of States Article 3 In the exploitation of natural resources shared by two or more countries, each State must co- operate on the basis of a system of informa- tion and prior consultations in order to achieve optimum use of such resources without causing damage to the legitimate interest of others. CHAPTER II1: Common responsibilities towards the international community Article 29 The sea-bed and ocean floor and the subsoil thereof, beyond the limits of national juris- diction, as well as the resources of '~he area, are the common heritage of mankind. On the basis of the principles adopted by the General Assembly in resolution 2749 (XXV) of 17 December 1970, all States shall ensure that the exploration of the area and exploi- tation of its resources are carried out exclu- sively for peaceful purposes and that the benefits derived therefrom are shared equi- tably by all States, taking into account the particular interests and needs of developing countries; an international r6gime applying to the area and its resources and including appropriate international machinery to give effect to its provisions shall be established by an international treaty of a universal character, generally agreed upon. Article 30 The protection, preservation and the enhance- ment of the environment for the present and future generations is the responsibility of all States. All States shall endeavour to establish their own environmental and developmental policies in conformity with such responsibility. The environmental policies of all States should enhance and not adversely affect the present and future de- velopment potential of developing countries. All States have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environ- ment of other States or of areas beyond the limits of national jurisdiction. All States should co-operate in evolving international norms and regulations in the fields of the environment. CO-OPERATION IN THE FIELD OF THE ENVIRONMENT CONCERNING NATURAL RESOURCES SHARED BY TWO OR MORE STATES REPORT OF THE EXECUTIVE DIRECTOR TO THE GOVERNING COUNCIL (Third Session, Nairobi, 17 April-2 May 1975) UN Document UNEP/GC/44 (1975)* II. OBSERVATIONS OF THE EXECUTIVE DIRECTOR 68 77. Before submitting his proposals for the implementation of General Assembly resolu- tion 3129 (XXVIII), the Executive Director wishes to make the following general obser- vations for the purpose of helping to clarify certain aspects of the resolution in question and indicating the approach taken by the Executive Director in response to them. 1. The relationship between General Assem- bly resolution 3129 (XXVIII), Principles 21, 22 and 24 of the Stockholm Declaration and General Assembly resolutions 2995 (XXVII) and 2996 (XXVII) 78. It is clear that Principles 21, 22 and 24 of the Stockholm Declaration are explicitly predicated on the tripartite .concept of sovereignty, responsibility and co-operation. * Foot notes to the Executive Director's Report referring in detail to UN resolutions or documents have been omitted. [Ed.] Environmental Policy and Law, 1 (1975)

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U N E P G O V E R N I N G C O U N C I L

D E C I S I O N No. 18 (11)

Implementation of the request addressed to the Governing Council by the General Assembly in its Resolution 3129 ( X X V I I I ) . entitled "Co- operation in the field of the environment con- cerning natural resources shared by two or more states"

The Governing Council,

Recalling the relevant provisions of General Assembly resolution 2849 (XXVl) of 20 December 1971 on development and environment, the Declaration of the United Nations Conference on Human Environment, held at Stockholm in 1972, and the impor- tant Economic Declaration adopted at the Fourth Conference of the Heads of State or Government of Non-Aligned Countries, held in Algiers in 1973, Taking into account the functions and responsibilities vested in the Governing Council and the Executive Director by the General Assembly in its resolution 2997 (XXVII) of 15 December 1972, and taking note with satisfaction of the provisions of Assembly resolution 3129 (X XV III) of 13 December 1973, and particularly of the request therein addressed to the Governing Council, 1. Requests the Executive Director of the United Nations Environment Programme, in co-operation with other organizations of the United Nations system, to prepare a study and make proposals to implement the provisions of General Assembly resolu- tion 3129 (XXVI l l ) and to submit them in a report to the Governing Council at its third session, with the purpose also that the report be presented to the Assembly, at its thirt ieth

session, bearing in mind its requirement to be informed about the implementation of that resolution; 2• Further requests the Executive Director to take the necessary measures to ensure that the provisions of resolution 3129 (XXVII I ) are taken into account in prepar- ing and undertaking the relevant programme activities and to report to the Governing Council at its third session on the measures taken for the implementation of that resolution.

26th meeting 20 MarCh 1974.

UNEP G O V E R N I N G C O U N C I L

D E C I S I O N No. 4 4 (111)

Co-operation in the field of the environment concerning natural resouces shared by two or more states

The Governing Council,

Noting with satisfaction the report o f the Executive Director on co-operation in the field of the environment concerning natural resources shared by two or more States, Expressing also its satisfaction at the wok k done by the Executive Director in carrying out the tasks entrusted to him for the im-

104

plementation of General Assembly resolution 3129 (XXVII I ) , Taking also into consideration articles 3 and 30 of the Charter of Economic Rights and Duties of States, approved by the General Assembly in its resolution 3281 (XXIX), 1. Notes with approval the recommendations and proposals for implementing General Assembly resolution 3129 (XXVl I I ) con- tained in the Executive Director's report; 2. Requests the Executive Director to establish an intergovernmental working group of experts, to be drawn from among the Member States of the Council, selected on the basis of equitable geographical distribu- t ion, in order to prepare, on the basis of the above recommendations and proposals and of other useful elements that it may have at its disposal, draft principles of conduct for the guidance of States in the conservation and harmonious exploitat ion of natural resources shared by two or more States, and to submit a report on progress made in this respect to the Governing Council for consid- eration at its next session, in order that it may be presented to the General Assembly of the United Nations; 3. Further requests the Executive Director to transmit his report to the General Assem- bly, the specialized agencies and other relevant organs of the United Nations system, including the International Law Commission, and to international governmental and non- governmental organizations which may have an interest in this field, and to invite such specialized agencies and international goverrP mental and non-governmental organizations to collaborate with the Executive Director on this subject; 4. Decides to place the question of co-opera- t ion in the field of the environment concer- ning natural resources shared by two or more States on the provisional agenda for its next session.

38th meeting 25 April 1975

C H A R T E R O F E C O N O M I C

R I G H T S A N D D U T I E S OF S T A T E S

[Adopted by the UN General Assembly on 12 December 1974 as part of GA Resolution 3281 (XX IX ) by a roll-call note of 120 in favor to 6 against, with 10 abstentions.]

CHAPTER I1: Economic rights and duties of States

Article 3 In the exploitat ion of natural resources shared by two or more countries, each State must co- operate on the basis of a system of informa- tion and prior consultations in order to achieve optimum use of such resources without causing damage to the legitimate interest of others.

CHAPTER II1: Common responsibilities towards the international community

Article 29 The sea-bed and ocean f loor and the subsoil thereof, beyond the limits of national juris- diction, as well as the resources of '~he area, are the common heritage of mankind. On the

basis of the principles adopted by the General Assembly in resolution 2749 (XXV) of 17 December 1970, all States shall ensure that the exploration of the area and exploi- tation of its resources are carried out exclu- sively for peaceful purposes and that the benefits derived therefrom are shared equi- tably by all States, taking into account the particular interests and needs of developing countries; an international r6gime applying to the area and its resources and including appropriate international machinery to give effect to its provisions shall be established by an international treaty of a universal character, generally agreed upon.

Article 30 The protection, preservation and the enhance- ment of the environment for the present and future generations is the responsibility of all States. All States shall endeavour to establish their own environmental and developmental policies in conformity with such responsibility. The environmental policies of all States should enhance and not adversely affect the present and future de- velopment potential of developing countries. All States have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environ- ment of other States or of areas beyond the limits of national jurisdiction. All States should co-operate in evolving international norms and regulations in the fields o f the environment.

C O - O P E R A T I O N IN T H E F I E L D OF

T H E E N V I R O N M E N T C O N C E R N I N G

N A T U R A L R E S O U R C E S S H A R E D BY

TWO O R M O R E S T A T E S

REPORT OF THE EXECUTIVE DIRECTOR TO THE G O V E R N I N G COUNCIL (Third Session, Nairobi, 17 April-2 May 1975) UN Document UNEP/GC/44 (1975)*

II. OBSERVATIONS OF THE EXECUTIVE DIRECTOR 68

77. Before submitting his proposals for the implementation of General Assembly resolu- t ion 3129 (XXVI I I ) , the Executive Director wishes to make the fol lowing general obser- vations for the purpose of helping to clarify certain aspects of the resolution in question and indicating the approach taken by the Executive Director in response to them.

1. The relationship between General Assem- bly resolution 3129 (XXVIII), Principles 21, 22 and 24 of the Stockholm Declaration and General Assembly resolutions 2995 (XXVII) and 2996 (XXVII)

78. It is clear that Principles 21, 22 and 24 of the Stockholm Declaration are expl ici t ly predicated on the tripartite .concept of sovereignty, responsibility and co-operation.

* Foot notes to the Executive Director's Report referring in detail to UN resolutions or documents have been omitted. [Ed.]

Environmental Policy and Law, 1 (1975)

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Thus, while Principle 21 recognizes the sovereignty of States over their natural resources, it declares that a State is respon- sible for ensuring that activities within its jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of its national juris- diction. This fundamental obligation of States has been included in the Charter of Economic Rights and Duties of States adopted by the General Assembly at its twenty-ninth session. Principle 24 recognizes the important principle that international matters concerning the protection and improvement of the environment should be handled in a co-operative spirit by all countries on an equal footing. Such co- operation may take the form of multilateral or bilateral arrangements or other appropri- ate means that take due account of the sovereignty and interests of all States. These two principles, therefore, are in themselves in a sense "international standards" for the guidance of States conduct in the field of the environment.

79. Principle 22 calls for co-operation among States for the further development of inter- national law regarding liability and compen- sation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of States to areas beyond such jurisdiction or control. As was pointed out in the reply of one Government 75, the obligation of a State to compensate foreign victims of environmental harm arising out of,activities within its territory should be viewed less as a principle of conduct than as a consequence of failure to obseree international standards. The primary obligation of States is to co-operate with other States in order to avoid inflicting significant harm to their environments in the first place, rather than to pay compen- sation when actual damage is incurred, In the field of the environment the emphasis must necessarily be on preventive rather than on remedial measures. The compensation which may be payable is often poor consola- tion for an inflicted damage that is often irreparable. Therefore the main function of the duty to pay compensation must be viewed as a means of inducing state conduct that is likely to prevent the infliction of significant damage on other States, rather than as a licence to pollute or otherwise damage the environment of other States. When liability arises, it would more often be an indication that the principle of co-operation has not been adequately observed.

80. General Assembly resolution 2995 (XXVI I ) reaffirms Principles 21,22 and 24 and goes one step further in that it indicates one method of achieving effective co-opera- tion among States in the field of the en- vironment; it calls for exchange of informa- tion, both official and public, relating to technical data on the work to be carried out by States within their national juris- diction with a view to avoiding significant harm that may occur in the environment of adjacent areas. Thus the resolution sets forth another standard for State conduct in this area. The resolution further establishes the principle of good faith in the giving and receiving of the information in question; it provides that the exchange of the informa- tion must be carried out in the best spirit

Environmental Policy and Law, I (1975)

of co-operation and good-neighbourliness and should not be employed as a pretext for unreasonably delaying or impeding the development plans of a State.

81. General Assembly resolution 2996 (XXVI I ) reaffirms that the exchange of information called for in resolution 2995 (XXVl I ) is not intended to override the principles of sovereignty, responsibility and co-operation as embodied in Principles 21, 22 and 24 of the "Stockholm Declaration, Thus, the system of exchange of information for the common benefit of the States con- cerned is in harmony with those principles.

82. Similarly, General Assembly resolutions 3129 (XXVI I I ) complements and augments General Assembly resolutions 2995 (XXVI I ) and 2996 (XXVI I ) as well as Principles 21, 22 and 24 of the Stockholm Declaration. Thus the first preambular paragraph of resolution 3129 expressly reaffirms Principles 21,22 and 24. The second preambular paragraph incorporates by reference resolutions 2995 and 2996. The third preambular paragraph recognizes what is already embodied in the Stockholm Declaration and resolution 2995, namely, the duty of the international com- munity to adopt measures to protect and improve the environment and the need for continuous international collaboration to that end. The fourth preambular paragraph states a fact widely recognized by States, that there is a need to elaborate "interna- tional norms" conductive to the improvement and protection of the environment. I t does not indicate the character of these norms, nor does it specify the manner in which they should be elaborated. The reference to the Economic Declaration of the Algiers Confer- ence in the fourth and'fifth preambular paragraphs" is of a general nature that takes note of the Declaration and expresses an awareness of the importance and urgency of safeguarding the conservation and exploita- tion of natural resources shared by two or more States, not by imposition or coercion but "by means of an effective system of co-

operat ion" among States, which is the system laid down in the Stockholm Declaration and in General Assembly resolution 2995 ( x x v l l ) .

83. Nor is there anything in the operative part of General Assembly resolution 3129 (XXVI I I ) that contradicts the Stockholm Declaration or General Assembly resolutions 2995, 2996 et 2997. Paragraph 1 deals solely with the narrow issue of conservation and harmonious exploitation of natural resources which are shared by two or more States. In a situation where the likelihood of damage to the environment of other States from uni- lateral actions of a co-sharing State is too great, the issue is not how to compensate for that damage, but rather how to prevent the damage from occuring in the first place, without infringing the sovereignty of the State concerned or derogating from its sovereign right over natural resources within its jurisdiction or control. What is needed therefore is a system of co-operation that would harmonize the actions of the States concerned and protect their environ- ments. Hence, paragraph 1 calls for the establishment of "adequate international standards for the conservation and harmo- nious exploitation of natural resources

shared by two or more States". These standards must necessarily be guidelines which States would observe in "the context of the normal relations existing between them" in order to guide their conduct in the exploitation of shared natural resources.

84. Paragraph 2 goes one step further in attempting to ascertain the form which the co-operation between States should take, and declares that in the special situation of States sharing natural resources and inter- ested in their exploitation, the co-operation between them should not only be based on exchange of information but also on "prior consultation". The phrase "pr ior consultation" does not imply any commit- ment on the part of any State other than to enter into advance consultations in good faith with other interested States before embarking on the course of action designed. Nor does the phrase vest a right of veto in the consult- ed State or imply a right to delay or impede unreasonably the development projects of a neighbouring State. "Prior consultations" in this context must necessarily mean ex- change of views and opinions in order to assess in advance the environmental impact of the intended action on the environment of the consulted State and to agree on ways and means whereby significant damage could be avoided or minimized. This is evident from the express words of the paragraph that the sytem of information and prior consultation must be developed "within the framework of the normal relations existing between them" i.e. not in the spirit of caprice or ill-will but in good faith and good neighbour- liness, which are the basic requirements stated in General Assembly resolution 2995 (XXVI I ) .

2. The role of UNEP under paragraph 3 of. General Assembly resolution 3129 (XXVI I I )

85. In requesting the Governing Council of UNEP to take account of the preceeding para- graphs and to report on measures adopted for their implementation, paragraph 3 does not, of course, transform the Governing Council of UNEP into a supra-national regulatory agency that could impose international norms or standards on States or regulate their conduct in the field of the environment against their will. The paragraph expressly states that the Governing Council should discharge its task under the resolution " in keeping with its function of promoting international co-opera- tion according to the mandate conferred upon it by the General Assembly". Under General Assembly resolution 2997 (XXVI I ) , which established UNEP, set up the Governing Council and defined its functions and competence, the Governing Council has no power to promulgate on its own international rules or regulations which would automatically be legally binding on States. It may, however, recommend to States general guidelines for their conduct in relation to co-operation in the field of the environment concerning natural resources shared with other States, but these would not,.by virtue of being so recommended, have a strict legal binding force until included in a convention or other legal instrument signed and ratified by States. The Governing Council may wish to consider asking the Executive Director to prepare for its consideration specific proposals in respect of such possible standards, guidelines and measures and how they might be developed and applied.

105

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3. The definition o f shared natural resources

86. The Executive Director has no di f f icul ty in accepting the view that within the context of General Assembly resolution 3129 (XXVlII), it might be preferable to deal with natural resources shared by a limited number o f States, as opposed to the international commons that are the concern of all mankind, but feels that this should be interpreted as a matter of em- phasis which should not exclude dealing with potentially significant threats to the commons. While no satisfactory generic term could be found to describe such natural resources, it can safely be assumed that the fol lowing are among the most obvious examples: (a) An international water system, includin9 both surface and ground waters; (b) An'air-shed or air mass above the territories of a limited number of States; (c) Enclosed or semi-enclosed seas and adjacent coastal waters; (d) Migratory species which move between the waters or territories o f several States; (e) A special ecosystem spanning the frontiers between two or more States, such as a series of mountains, forests or areas of special conserv- ation nature. The above list is not exhaustive; other examples could be added.

III. RECOMMENDATIONS AND PROPOSALS OF THE EXECUTIVE DIRECTOR

87. In the light of the above observation and the analysis of replie~ of Governments and international organizations contained in part I o f this report, the Governing Council may wish to consider the fol lowing recommenda- tions for the implementation of General Assembly resolution 3129 (XXVI I I ) : (a) The Governing Council should consider arranging for the preparation of a draft code of conduct setting forth general principles and guidelines for the conduct of States in the conservation and harmonious exploita- tion of natural resources shared by a limited number of States. The Governing Council may then wish to consider submitting the code to the General Assembly for its approval and adoption; (b) The general principles and guidelines to be included in this draft code of conduct could be derived from the practice of States as evidenced in bilateral and multilateral agreements and other sources of interna- tional law as well as from formal and infor- mal arrangements, the work of international organizations and the writings of eminent jurists and other experts; (c) The Governing Council may therefore wish to consider the fol lowing general ideas relating to the general principles and guide- lines to be included in the draft code. The Council may wish at this stage to consider these ideas in broad outline, subject to their subsequent elaboration in some detail: (i) The code should, while recognizing the sovereign right of States to exploi t natural resources within their jurisdiction or control, uphold the responsibility of a State to ensure that the exercise of such sovereign right does not cause damage to the environ- ment of other States or of areas beyond the limits of national jurisdiction. This general principle, as explained above, derives directly f rom general international law and is reflected in Principle 21 o f the

106

Stockholm Declaration, General Assembly resolution 2995 (XXVl I ) , Article 30 of the Charter of Economic Rights and Duties of States and numerous other legal instru- ments and conventions; (ii) The code should urge States sharing natural resources to conclude bilateral or multilateral agreements to regulate their conduct, in a legally binding manner, with respect to co-operation in the field of the environment concerning the conservation and the harmonious use and management of shared natural resources. In this respect, the Governing Council may wish to urge States to include inter alia in these agree- ments, the establishment of jo int institu- tional structures, such as joint international commssions, for jo int consultations and planning on, and rational management of, the shared natural resource. As indicated in the analysis of the replies of Governments and international organizations, the establishment of such jo int commissions or other similar institutions, even in the most informal manner, has proved to be the most effective mechanism for the avoidance and settlement of disputes, especially in the case of international water systems. (d) The Governing Council may wish to con- sider that the code could also include guide- lines to be observed in the absence of bilat- eral or multilateral agreements adequately regulating the use, development and manage- ment of the shared natural resource. The following might be among the issues to be dealt with by the guidelines:

(1) Notification: The code should deal with the circumstances under which advance notice is required from a State intending to undertake an activity likely to have signifi- cant impact on the environment of another State as regards a shared natural resource. What constitutes timely notice, e.g., how ful ly the project can be elaborated before notice is given, should be considered. If the notice is given at the planning stage, it would permit other countries involved to make comments on the plan in order to avoid the infl iction of significant damage;

(2) Exchange o f information: Considera- tion should be given to what technical data relating to the project, and all other informa- tion about the environmental impact of the project that might be available to the noti- fying State, should accompany the notice. Presumably, the information should be sufficient to permit the affected country to decide whether further consultations are required to protect its interests. It might also be considered whether, if the affected State reasonably requests additional infor- mation, the notifying State should supply such additional information;

(3) Consultations: The code could also deal with the question of requests for con- sultation by a State~ whether or not specifi- cally notif ied, that believes it wil l suffer significant environmental harm because of an intended activity of another State with respect to a shared natural resource, and with the circumstances under which, and extent to which, such requests should be granted, as well as the consequences of such a request;

(4) The principles o f good faith and good neighbourlines: Consideration might be given to the inclusion of the principle of good faith

embodied in paragraph 3 of General Assem- bly resolution 2995 (XXVII ) and paragraphs 2 and 3 of General Assembly resolution 3129 (XXVI l l ) . The code of conduct could provide that both the giving and the rece!ving of information relating to the intended project should be undertaken in good faith by the States concerned in the spirit o f good neighbourliness and co-operation. In particu- lar, the code might deal with the problem of the possible use of the mechanism of prior consulation and exchange of information, as a means for unreasonable delay in the execution of the development plans of its neighbour. The code could define the extent and scope of the injury which might give "ise to a legitimate complaint, since pre- sumably a State is not protected against every damage or injury, however slight;

(5) Information Register: In connexion with the requirements of notice and exchange of information, the Governing Council may wish to consider the proposal made by one Government 77 that the proposed code of conduct may also establish a system whereby States register information with the UNEP secretariat regarding activities which are to take place within their jurisdiction or control and which may have significant environmen- tal impact beyond such jurisdiction or con- trol. Such information might, i f possible, be given to UNEP simultaneously with the notif ication by the State concerned to other interested States. UNEP might be authorized to disseminate the information to some or all States where it deems such dissemination to be of some importance to other States;

(6) Emergency action: The code could also deal with suitable procedures for mutual warning and co-operation in case of emer- gencies such as natural disasters or sudden massive pollut ion affecting the shared natural resource;

(7) Settlement o f disputes: The code could also deal with peaceful means for the settlement of disputes, f rom resolution at the technical level, through the establish- ment of technical commissions of inquiry, to the traditonal means of settlement of international disputes such as mediation, conciliation, arbitration, recourse to specialized tribunals, and other forms of judicial settlement;

(8) Use of the good offices o f UNEP: In connexion with settlement of disputes, the Governing Council may wish to consider the proposal separately submitted by two Governments78that within the context of settlement of environmental disputes, UNEP may at the request of the States concerned offer its good offices to assist those States in the technical clarification and establish- ment of the facts involved in an environ- mental dispute;

(9) Lastly, the code of conduct might include general guidelines relating to liabil- i ty and compensation for foreign victims of environmental damage concerning a shared natural resource. In this connexion, con- sideration might be given to the availability to foreign persons, at this or earlier stages, of domestic procedures governing environ- mental claims. 88. In the event that the Governing Council endorses the above proposals, in their broad outlines, th~ Governing Council may wish

Environmental Policy and Law, 1 (1975)

Page 4: Co-operation in the field of the environment concerning natural resources shared by two or more states

to ask the Executive Director to establish a small inter-governmental wbrking group of experts to be drawn from among the member States of the Council in order to prepare, on the basis of the above recom- mendations, a draft code of conduct for the guidance of States in the conservation and harmonious exploitat ion of natural resources shared by two or more States, and to submit the same for approval of the Governing Council at a future session. 89. International organizations, within and outside the United Nations system, which are concerned with the subject should be allowed to participate in the 'work of the working group.

90. The Executive Director will provide the working group with all the necessary docu- mentation to facilitate its work.

68This, and the subsequent sections were reviewed at an informal meeting, held in Geneva from 24 to 28 February, by the fol lowing experts who were invited by the

Executive Director in their personal capacities: 1. Dr. A. O. Adede, Head of the Legal Divi-

sion, Ministry of Foreign Affairs Of the Republic of Kenya.

2. Mr. W. E. Burhenne, of IUCN. 3. Mr. Hans Blix, Legal Advisor of the

Ministry of Foreign Affairs, Sweden. 4. Mr. John Lawrance Hargrove, Director of

Studies, the American Society of Inter- national Law.

5. Professor E, Novoa Monreal, Professor of International Law, University of Mexico.

6. Mr. N. Surbiguet, Ministry of Foreign Affairs, France.

7. Mr. Doudou Thiam, Member of the Inter- national Law Commission.

8. Mr. M. K. Yasseen, Member of the Inter- national Law Commission.

Representatives of the fol lowing agencies also participated in the meeting: FAO, UNCTAD, WHO.

75Sweden

77 Sweden. 78 Sweden and Niger.

I N T E R N A T I O N A L A S S E M B L Y OF N O N - G O V E R N M E N T A L O R G A N I - Z A T I O N S C O N C E R N E D W I T H T H E E N V I R O N M E N T Nairobi, Apri l 12 - 17, 1975

WORKING GROUP I: LAWS AND TREATIES

1.1. Principles 21, 22 and 24 of the Stock- holm Declaration constitute a clear mandate to the governments of the world to establish legal institutions adequate to assure that actions of one state will not cause uncom- pensated damage to the environment of other states or of areas beyond any national jurisdiction. UNEP, as the agency charged with implementing these principles, has an equally clear mandate to bring these legal institutions into existence.

1.2. We urge the Governing Council to aff irm unequivocally this vital role of UNEP in the area of environmental law. Following that aff irmation, we urge UNEP to devote greater resources to this important task, including but not limited to the initiatives recommended in this text.

1.3. We urge the Governing Council to approve the proposals of the Executive Director that UNEP fulf i l l .the mandate of General Assembly Resolution 3129 by taking action in leading to the formulat ion of international conventions and codes of conduct to protect natural resources shared by two or more states; that UNEP assume responsibility for sponsoring agreements to control land-based pollution; and that UNEP support the development of general principles and operative guidelines on weather modifi- cation. However, we regret that these are

Environmental Policy and Law, I (1975)

virtually the only actions proposed by UNEP in the important area of environmental law, and we strongly urge the Governing Council to direct UNEP to undertake the fol lowing additional activities in this area.

1.4. UNEP should undertake immediately to implement Principles 21,22, and 24 of the Stockholm Declaration by convening meetings of experts and taking other steps to establish through international conven- tions or codes of conduct, the obligation of every state to not i fy and consult with UNEP and the affected states as to the actions within its jurisdiction which affect adversely the environments of other nations or of areas outside the jurisdiction of any state. This obligation must include a duty to assess in detail the adverse environmental impacts of such actions and, in keeping with Principle 22, to compensate the victims of pollution or other environmental damage which results.

1.5. UNEP should immediately convene meetings of experts and take other actions leading to the formulat ion of international conventions or codes of conduct which will assure that new and potential ly toxic sub- stances are not introduced into the environ- ment until, their possible adverse environ- mental impacts have been assessed and these assessments made available to governments and the public.

i .6. The protection of various threatened species presents special problems, and as recommended by Working Group A last year, we urge UNEP to take the initiative within the international community to develop a Convention and a Fund for the Protection of Species comprising the Common Heritage of Mankind. In any event, we recommend that UNEP, which since its inception has taken leadership in protecting whale resources, undertake to develop a new Convention to

protect the common property resources represented by all marine mammals. This Convention should include provisions recom- mended in this year's report of Working Group A [on natural resources and ecosystems].

1.7. We commend UNEP for calling an inter- governmental meeting on the Protection of the Mediterranean and for the resulting proposed plan which calls for the develop- ment of a framework convention dealing with: a) co-operation in pollut ion emergen- cies; b) dumping from ships and aircrafts; c) land-based pollut ion and, d) pollut ion related to sea-bed exploration and exploita- tion and pollut ion from ships. We urge the Governing Council to adopt the proposed plan, proceed with the conventions as soon as possible and recommend that UNEP should assume a similar leadership role for other areas such as the Persian Gulf and the Red Sea.

1.8. We recommend to the members of the Governing Council that their respective Governments rat i fy wi thout further delay the Conventions on a) International Trade in Endangered Species of Wild Fauna and Flora; b) the Protection of the World Cultural and Natural Heritage; c) the Prevention of Marine Pollution by Dumping of Wastes and other Matters; d) Wetlands of Inter- national Importance Especially as Water- fowls Habitat, and e) The International Prevention of Pollution from Ships.

1.9. While we support UNEP's commitment to maintain a complete registry of the status of international conventions relating to the environment, we believ~ UNEP should insti- tute a programme to inform all nations periodically of the ratif ication status of each convention, the terms of the respective agreements, and their benefits in protecting the environment, and to use its good offices to encourage the ratif ication of international environmental treaties.

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