The International Rule of Law, Treaties on Sustainable

Development and Compliance

By Palitha T.B. KohonaVientiane, 7 –9 October 2003

Outline

This presentation will explore four themes:

The gradual advancement of the international rule of law covering a range of sectors.

In parallel, and as part of this process, the expansion of the treaty network on sustainable development issues.

Ensuring compliance, both domestic and international.

Implications for International Trade Rules.

The Consolidation and the Advancement of the International

Rule of Law Is Slowly Gathering Pace

Was a major challenge for the international community, in particular, for the United Nations.

in the past, a preoccupation of international lawyers and diplomats – surrounded by a mystique of its own.

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

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

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

Mounting problems relating to the environment.– Pollution of the seas.

• Major accidents resulting in catastrophic oil spills.

Acid rain and the destruction of lakes and forests in Europe.

Smog, particularly severe in London and LA.

Ozone depletion and skin cancer scares.

Science identified the problems.– IPCC made convincing recommendations on global

warming.

The Position of Developed Countries

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

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.

Common but differentiated responsibility for dealing with the environment.

The need to assist developing countries with finances and technology to address environmental problems.

The need to meet environmental and developmental needs.

Trade policy measures should not constitute arbitrary or unjustifiable discrimination.

Application of Common Principles

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

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

The level of compliance by states with international legal obligations has been gradually consolidated.

Growing expectation of a need to comply.

Breaches widely reported and extensively discussed.

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

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.

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

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

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.

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

Many treaty secretariats provide assistance with the technical implementation of treaty obligations.

Montreal Protocol, Basel Convention, etc.

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

Many major investment management houses are acutely conscious of the need to take the environment into account.

Because of local laws and regulations and also due to share holder pressure.

Lobby groups also exert tremendous pressure.

The Resort to Pressure – Naming and Shaming Approach

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.

In many cases, this works – in others more work is required.

We are dealing with sovereign states.

Information Provided to Non-state Entities

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.

Proactive role domestically in pressuring governments to comply with international norms, including through the enactment of legislation.

Participate actively in global negotiations, including by being members of government delegations, especially developed country delegations.

Advise governments.

Additional Measures Taken by the Secretariat to Encourage Compliance

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: in 2000, the Millennium Year, a campaign to encourage

wider participation in the multilateral treaties deposited with the SG.

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.

The event proved to be a major success.

– Decided to hold such an event each year.

Treaty Events

In 2001, a treaty event entitled, Focus 2001 – Rights of Women and Children,

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.

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.

This year: FOCUS 2003 – TREATIES AGAINST ORGANIZED CRIME

Teaching and Training

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.

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.

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

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

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.

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

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

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.

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

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".

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