Part II Practice—Scholarly and Practitioner Accounts of UN Treaty-Making, B Economic and Social Development, Ch.10 Environment and Sustainable Development
Marie-Claire Cordonier Segger, Alexandra Harrington
Simon Chesterman, David M. Malone, Santiago Villalpando
- Sustainable development — UN Charter
The ecological systems of our planet are interconnected, across earth, water, and air. Environmental challenges, and also opportunities for more sustainable development, often extend beyond the sovereign boundaries of states. International problems, accords, and disputes on the environment and on sustainable development have been identified, negotiated, adopted, implemented, resolved, and refined for centuries, as documented in international law scholarship.1 In recent decades, however, scientific information on the drivers and scope of global environment and development problems has become more certain.2 At the same time, fragmented domestic environment and development policy efforts have demonstrably failed to address increasing risks on many levels. International consensus has emerged on the need to deliver more sustainable development (p. 202) worldwide, even as it becomes increasingly apparent that much greater collaboration is required to achieve global goals in many areas.
In this context, international treaty-making has intensified.3 For international accords on the environment and on sustainable development, during recent decades of intensive treaty negotiations and implementation efforts, all actors involved have relied on the UN at each step of the way. The role of the UN in treaty-making on the environment and on sustainable development has been significant, substantial, and indeed, almost ubiquitous in many instances. The UN’s involvement supports the formal negotiators representing interested coalitions of states, and also the broader epistemic communities—the networks of state and nonstate actors involved in problem-solving and collaboration related to the object and purpose of the treaties. From transboundary problem identification and scientific collaboration; to the facilitation of negotiations and eventual consensus; to the promotion of ratification and implementation; to the establishment and operation of financial instruments; to support for capacity-building, public education, and participation; to the peaceful dispute settlement, compliance, and transparency (monitoring, reporting, and verification) efforts that then “interactionally” refine the regimes themselves, the UN has guided and supported the emergence of international law on the environment and sustainable development.4
The myriad and interconnected processes that the UN chaperones in these fields also contribute to achieving the objectives of the UN Charter itself, including efforts to realize the global Sustainable Development Goals (SDGs), which were adopted by the UN in 2015 to chart an international cooperation agenda forward to 2030.5
Several waves of environmental treaties have been negotiated over recent decades to establish and refine international structures for cooperation. International regimes, sometimes linking several international treaties and instruments, seek to address interrelated “clusters” of environmental problems as their object. For the purposes of this chapter, such environmental treaties can be clustered (non-exhaustively) as addressing objects such as: (1) the conservation and recovery of nature, biodiversity, and wildlife; (2) the protection of clean freshwater systems and wetlands; (3) the sound management of chemicals, air pollutants, and hazardous substances; (4) the protection of the world’s oceans and marine resources; and (5) the global response to atmospheric threats such as anthropogenic climate change and the destruction of the ozone layer.6 While this chapter (p. 203) focuses mainly on the key multilateral environmental agreements brokered by the United Nations, many bilateral and regional environmental accords have also been agreed, seeking to address more localized aspects of these and other challenges.
At the same time (and in several instances, quid pro quo), international law and policy commitments have been made to promote more sustainable development, not just in developing countries but across all regions of the world.7 International instruments and accords on sustainable development include many environmental treaties, but also accords on human rights and social development, and agreements on trade, investment, and other economic cooperation.8 Inter-state efforts are intensifying to promote more sustainable use of natural resources such as renewable energy, water, soil, seeds and plants, forests, genetic resources, marine resources including fisheries, and minerals. There are efforts to support more sustainable development in social sectors such as health and education, and in economic sectors such as transport, infrastructure, tourism, information and communications technology, and bioprospecting.9
In this light, this chapter considers the UN contributions to treaty-making in practice on the environment and sustainable development. It begins with a brief survey of the crafting and “clustering” of multilateral environmental agreements as international responses to emerging global environmental problems. Specifically, the chapter considers the role of the UN in this process, focusing on successive waves of treaty-making over recent decades. It suggests that the UN has played a very important role in negotiations in this field, and continues to serve as a crucial and valuable actor in the implementation and refinement of these treaties and the broader problem-based clusters, in spite of very limited resources.
The interrelationships between myriad international instruments across environmental, economic, and social spheres seeking to promote more sustainable development are also highlighted in this chapter. The chapter identifies, as illustrative examples, several key treaties that address a selection of the SDGs, leading to a concluding consideration of how international accords in this field are, in turn, contributing to the UN Charter. Indeed, it suggests, without the UN-facilitated treaties, many SDGs could be considered “hollow,” dependent on voluntary collaborations, and devoid of reliable regimes to achieve their targets. Not all relationships are equally integrated, and fragmentation, duplication, and even unintended overlapping of obligations or conflicts can exist. However, as international governance becomes more sophisticated and complex, these interrelated instruments can be negotiated, implemented, and interactionally refined across multiple nested levels. To this end, the chapter argues, adoption of the SDGs may support greater coherence across the UN system.
In recent decades, facilitated by the UN primarily through UN-Environment, there has been a significant strengthening of international environmental governance (IEG). Even before the creation of the UN Environment Programme (UNEP, or since 2016, UN-Environment) in 1972, many international organizations, policy instruments, financing mechanisms, rules, procedures, and norms were mobilized to facilitate and regulate the processes of global environmental protection. As UN-Environment explains, the international community has adopted over 500 Multilateral Environmental Agreements (MEAs), around 25 of which are truly global in nature; created a series of environmental funds including Global Environment Facility (GEF); and given mandates to more than 40 UN and other intergovernmental bodies to address environmental issues.10 For analysis, MEA regimes can be clustered around key global problems, where substantive cooperative inter-regime bonds exist to facilitate more efficient, coordinated, and effective action.11 In each cluster, as mentioned previously, it can be argued that the role of the UN has been key, not just in consensus-building and treaty-making, but also in scientific collaboration, ratification and compliance promotion, financing, capacity-building, public education and participation, dispute settlement, and transparency.
The UN’s support for the negotiation, implementation, and strengthening of the regime surrounding the 1992 UN Framework Convention on Climate Change (UNFCCC)12 has been deeply influential in shaping global response to climate change. The UNFCCC itself has been important not only for its principles and the framework for scientific collaboration that was established under its auspices, but also for the instruments for cooperation established through the 1987 Kyoto Protocol and the 2015 Paris Agreement.13 An annual conference of the parties (CoPs) has grown from about 500 delegates to over (p. 205) 25,000 parties and observers in the Paris UNFCCC CoP21, supported by a network of domestic national authorities that have steadily gained in expertise and influence. To support these party-led processes, UNFCCC Secretariat facilitates technical and scientific collaboration, gathers crucial information from state parties and observers, and facilitates transparent monitoring and reporting on progress, encouraging higher ambition to address climate mitigation, adaptation/resilience and financing, raising public awareness, and promoting collaboration for compliance. Though the slow nature of inter-state negotiations has raised questions, the CoPs provide an important meeting point for inter-party coalitions and activities, including for least-developed parties, such as the most highly climate vulnerable countries, to participate in the regime. CoPs also serve to engage a vast array of observers and other non-state actors, including subnational authorities, cities, firms, academic institutions, and civil society organizations, to develop collaborations within the treaty framework, launching initiatives and actions to support the implementation and monitoring of the treaty. UN-Environment, UNDP (United Nations Development Programme), and other agencies have played crucial roles in the regime. They facilitate scientific cooperation and monitoring endeavors on climate change including the Inter-Governmental Panel on Climate Change itself, provide expertise and guidance for the drafting and implementation of Nationally Determined Contributions under the Paris Agreement, build capacity and broker compromises, and assist access to the Global Environment Facility and the Green Climate Fund, among other contributions.
In addition, the UN system plays an essential organizational and implementation role in the treaty regime for the protection of the common global atmosphere. The Vienna Convention on the Protection of the Ozone Layer, enacted in 1985 and subsequently updated and subject to additional protocols, was established to resolve a significant environmental challenge (the depletion of the ozone layer), based on scientific collaboration facilitated by UN-Environment and other UN instruments.14 It creates general obligations for states to engage in inter-state cooperation to understand the impacts of ozone depletion on human health, requiring states to translate these findings into national and international legal regimes to prevent ozone depletion and address its effects.15 To ensure coordination and cooperation, the Vienna Convention provides for CoPs that are, in application, administered by UN-Environment.16 Indeed, the Vienna Convention is overseen and supported overall by the Ozone Secretariat, which exists within the parameters of UN-Environment.17
(p. 206) Under the Vienna Convention, the Montreal Protocol on Substances that Deplete the Ozone Layer has been enacted to control identified substances that cause damage to the ozone layer.18 In the Montreal Protocol, state parties agree to regulate their trade of certain ozone-depleting substances with each other and also with non-state parties to the Protocol.19 It establishes an intergovernmental compliance mechanism to facilitate transparency and capacity for treaty implementation, linked to a financing mechanism that is supported by UN-Environment and the UNDP, among others.20 The Montreal Protocol is overseen by the Ozone Secretariat, falling under the rubric of UN-Environment, and its implementation is guided by an annual Meeting of the Parties (MoPs).21 As a result of work conducted across several MoPs, with significant support from UN-Environment and others, in 2016 the Kigali Amendment to the Montreal Protocol was established.22 The Kigali Amendment focuses on the reduction of emissions of hydrofluorocarbons (HFCs) by developed and developing states, with the assistance from the Multilateral Fund that is financed in large part through UN agencies.23
Further, in 1994, the UN Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (UNCCD)24 was approved by the international community. The UNCCD requires that states parties incorporate drought and desertification planning and mitigation in their policies and laws, and that states that are particularly vulnerable to these threats receive assistance from the international community in doing so.25 A significant portion of the UNCCD’s obligations centers on the creation and implementation of a National Action Programme “to identify the factors contributing to desertification and practical measures necessary to combat desertification and mitigate the effects of drought.”26 States parties examine the contributions of the government, individuals, communities, and other entities, such as nongovernmental organizations, to action on desertification and drought, and are mandated by the treaty to take these into account when generating policy.27 Further, the UNCCD requires that there be a periodic review of the National Action Programmes by a designated UNCCD committee in order to promote transparency and ensure their (p. 207) proper implementation.28 The UN has played an important role in facilitating these reviews, and following up to address capacity and other gaps identified in the process.
In essence, several essential elements of the international law to address environmental problems have been generated under the auspices of the UNFCCC and subsequent CoPs.29 Throughout the UNFCCC Paris Agreement, UNCCD and Montreal Protocol treaty-negotiations processes, the UN played a key role in convening legal and technical experts, and in building negotiator capacity and consensus, to address newly appearing challenges in a guided setting geared toward producing meaningful results. Through the UNCCD, the UN has also supported the negotiation and implementation of local and regional action plans, under the treaty, to try to increase resilience among communities and groups of countries. For climate change, desertification, and ozone depletion, a high-water mark is being set in openness and transparency of international law and treaty-making, through the work of the UNFCCC Secretariat, UN-Environment, and others.30
In these regimes, the UN fosters the emergence of carefully constructed, intricate regimes and legal instruments, particularly through its efforts to ensure that all parties and observers can participate in the treaty-making and refinement process. Indeed, the platforms created for negotiations in the UNFCCC and UNCCD systems give a voice to key states that are often excluded, due to capacity and financing concerns, from international proceedings, such as African and Small Island Development States. Not only has this promoted greater equity, it can also ensure more balanced treaties and instruments that can be implemented in ways that include and benefit a greater number of parties in addressing a global problem. A key example of this is the primacy of place given to Small Island Developing States in climate negotiations under the UNFCCC, with the designation of Fiji as the host of the 2017 UNFCCC CoP23.31 It is this iterative reinforcement that, perhaps, is the most valuable aspect of UN involvement in many of these treaties.
The negotiation of the Convention on Persistent Organic Pollutants (Stockholm Convention)32 was heavily informed by the scientific consensus facilitated by UN-Environment (then UNEP) and its partners, including the environmental departments of many countries, on the harm caused by persistent organic pollutants to (p. 208) individuals and the world community. In light of the broad-based threat posed by persistent organic pollutants, the Stockholm Convention provides for extensive public education and awareness activities by states parties, as well as requiring the states parties to report their measures for compliance to the governance entity established under the Stockholm Convention.33 Additionally, the Stockholm Convention establishes procedures for review of its effectiveness and implementation at a global level, ensuring that the public has the ability to access these findings openly.34 This treaty operates together with the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal,35 which was designed to reduce the movements of hazardous wastes between nations, especially from developed to least-developed states, and to minimize the quantities and toxicity of wastes generated, ensuring the environmentally sound management close to their sources. It also operates, as a triumvirate, with the 1998 Rotterdam Convention on the Prior Informed Convention Procedure for Certain Hazardous Chemicals and Pesticides,36 which establishes shared responsibilities in relation to the importation of hazardous chemicals, by promoting open exchange of information, and ensuring exporters use proper labeling and directions on safe handling, inform purchases of known restrictions, and respect any bans. The role of the UN, particularly UN-Environment, has been crucial in bringing together the scientific evidence, and galvanizing negotiations for all three agreements, throughout the long years of consensus-building and detailed technical negotiations. This “cluster” is perhaps one of the most coherent, due in part to collaborations fostered by parties through UN-Environment. Indeed, in 2012, after an intensively negotiated process, the Secretariats of the Basel and Stockholm Conventions, together with the UN-Environment part of the Rotterdam Convention Secretariat, merged into a single UN-Environment supported Secretariat with a matrix structure to serve all three treaties.
As further refinements to these efforts, the international community, with significant assistance from UN-Environment, crafted the Minamata Convention on Mercury37 in 2013, seeking to address the threat of mercury to society and to future generations. The Minamata Convention includes prohibitions and restrictions on the use of mercury generally and particularly in manufacturing settings as well as mercury disposal at the industrial level.38 States parties are required to provide citizens with information on mercury and its hazards.39 As in the UNFCCC Paris Agreement and the Montreal Protocol, the treaty oversight system includes an intergovernmental Implementation (p. 209) and Compliance Committee, which is tasked with reviewing states parties’ compliance efforts, and addressing questions regarding implementation from states parties.40
In terms of air pollutants, the 1997 Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention)41 and its 2003 Kiev Protocol42 are also important instruments. While the Espoo Convention relates to potential impacts in fields other than air pollution, it also plays an important role in promoting the use of environmental impact assessments—which can promote scientific collaboration, transparency, and public participation—in addressing air pollution, chemicals, and other challenges.43 Included in the enforcement mechanisms for the Espoo Convention is a Compliance Review system that allows other states to bring complaints regarding state party noncompliance to an organizational oversight body and nonstate actors to provide information on issues of concern as well.44 This review system, like others mentioned previously, is facilitated and supported by UN-Environment, and also by the UNECE.
To attempt to address increasingly serious global problems of human-induced aquatic and terrestrial species loss and related habitat degradation, a mix of policy action plans and binding treaty instruments have been adopted by the international community. In this cluster of challenges, key instruments include the 1992 Convention on Biological Diversity (CBD),45 its protocols and several well-known, traditional treaties that seek to protect migratory species, conserve wetlands, and address international trade in endangered species.
The CBD, originally called the UN Convention on Biological Diversity, has relied to varying degrees on UN support and engagement at different moments throughout its development as a treaty regime, and the relationships continue to evolve. The CBD regime works through expert technical theme-based committees and working groups, bringing together guidance and support of the parties through their national focal points to share science and knowledge, agree on policies and guidelines, exchange experiences, and report on implementation. Under the CBD, drawing on these technical exchanges, the 2000 Cartagena Protocol on Biosafety to the Convention on Biological (p. 210) Diversity46 was negotiated to govern the movements of living modified organisms (LMOs), through reporting requirements to support adequate biosafety measures, opening space for states to adopt precautionary approaches.47 UN-Environment, with funds from the Global Environmental Facility (GEF), were able to support the adoption and implementation of the Protocol, including by providing technical support to develop national policy and regulatory frameworks for implementation in over 120 countries. This regime has developed iteratively. When the UN (particularly UN-Environment) provided technical support to less-developed parties, this built confidence to ratify the Protocol and secured greater participation in the regime. Participation led to identification of further areas of consensus, and in 2010, the Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress,48 which addresses LMO damage response measures, was set in place. Similarly, building on the Bonn Guidelines, parties and indigenous groups with high levels of biodiversity were able, with UN technical support, to press for further negotiations, resulting in a 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization.49 The Protocol seeks to provide a more secure framework for access and benefit-sharing in relation to genetic resources, promoting more predictable access conditions, rules, and procedures; fair and equitable mutually agreed terms for benefit-sharing for parties and knowledge-holders; and recognizing traditional knowledge.50 Over several years, supported by the CBD Secretariat, UN-Environment and others, an Action Plan was negotiated to set a common global agenda on biodiversity, resulting in the Aichi Targets.51 While the new accords have been welcomed by many, and the active engagement of UN technical and legal experts was overall highly successful, the maturing of the regime also led to reconsideration of the relationship. Over time, the role of the UN in the CBD changed, with decisions by the parties that the CBD would need to work more independently across intergovernmental systems, conducting its own relations with states and other international organizations. To respect this new relationship, the UN now demonstrates considerable flexibility toward its modalities of interlinkages with CBD, and the support it can provide to parties that request assistance for treaty implementation.
(p. 211) In recognition of the specific threats to particular species and the impact of illegal wildlife trade on the decline of species at risk, the international community continued to collaborate through the mature yet dynamic Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) in 1973.52 Together with the International Union for the Conservation of Nature (IUCN), other international organizations, and civil society groups, the UN has proven instrumental in bringing parties together for the implementation of CITES, and these vital roles are included in the treaty terms and requirements. For instance, the CITES Secretariat is supported by UN-Environment, which provides the essential mechanisms and structure for governance of the Convention’s implementation.53 In addition, an important implementation project of the CITES, TRAFFIC (Trade Records Analysis of Flora and Fauna in Commerce), is co-located and works in tandem with the UN-Environment’s World Conservation Monitoring Centre. Together with the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals,54 these treaties provide a global platform for the conservation of terrestrial, marine, and avian migratory species, and their habitats, throughout their ranges.55 Essential to the CMS is a state-based commitment to protecting migratory species through scientific research, legal protections, and policy coordination and innovation.56 Through the CMS, parties regulate these activities, also encouraging and facilitating the creation of additional, more tailored agreements on specific migratory species.57 The CMS treaty also operates directly under the aegis of UN-Environment, with the CMS Secretariat supported by UN-Environment, and senior CMS staff often appointed from their ranks.58 In sum, the role of the UN, particularly UN-Environment, has been essential to support the negotiation, implementation, and reporting requirements of the major international accords for biodiversity conservation and sustainable use. As parties’ needs have evolved over time, particularly among different developing country parties, and subject to the collective will of each treaty bodies, this role has grown but changed, and it will likely continue to do so.
To address problems of global and transboundary freshwater management and wetlands, the UN has also taken on a special role, including through its regional commissions. For instance, the negotiations for the Convention on the Protection and Use of Transboundary Watercourses and International Lakes,59 also known as the Water Convention, which seeks to improve national attempts and measures for protection and management of transboundary surface waters and groundwaters, were supported by the United Nations Economic Commission for Europe (UNECE). The regional UN support takes a fit-to-purpose approach to both the regional water management problems and the jurisdictions involved in finding solutions, as the treaty takes a decidedly local/regional watershed approach, obliging parties to cooperate and create joint bodies to manage shared watercourses and lakes, issues that occur mainly on the regional level.60 To assist in the facilitation of these goals, the Convention Implementation Committee was established as part of the governance structure, and is supported by the UN through measures such as monitoring and assistance with compliance of UNECE instruments.61 The work of this more recent Water Convention builds on the long-standing efforts of the UN Convention on the Law of the Non-navigational Uses of International Watercourses,62 which established an initial framework for collaboration by providing protections for a number of watercourse areas, and also establishing requirements for notice of potentially damaging activities. Also included in the Convention terms are requirements regarding the protection, preservation, and management of watercourse resources domestically and as a matter of international conduct.63 As a product and part of the UN structure, working closely with UN-Water, two conventions that are administered under the auspices of the UNECE—the New York Convention and the Geneva Water Convention—are built into the structure of the UN for implementation, and supported by its staff and expertise, as well as its convening powers.64
International cooperation on transboundary water sources, including wetlands, is also facilitated by the venerable 1971 Convention on Wetlands of International Importance (p. 213) especially as Waterfowl Habitat,65 known as the Ramsar Convention, which seeks to conserve water and land areas of great importance for biodiversity and aquatic systems, addressing biodiversity concerns, and also freshwater and marine resources.66 The Ramsar Convention, in some ways, provided a template for and gives an important place to intergovernmental collaborative scientific research and international advisory missions. The treaty also encourages domestic and international legislative activities, and policy coordination as part of a concerted treaty regime.67 With a Secretariat affiliated and co-located with the IUCN, the Ramsar Convention is nonetheless supported by the UN entities that are part of its membership structure. For instance, alongside “International Organization Partners” (IOPs), these actors host projects to implement the Convention, and share information on initiatives that can help to achieve the goals of the Convention.
The preeminent source of international law on the world’s oceans is well-recognized as the UN Convention on the Law of the Sea (UNCLOS),68 in which the UN has played a preeminent role from facilitation of negotiations to support for implementation and refinement, including stable settlement of disputes.69 The well-established UNCLOS regime, with a strong dispute settlement mechanism through a special International Tribunal on the Law of the Sea (ITLOS), touches on all manner of oceanic regulations, including part II that addresses conservation and resource management. As existing literature extensively covers, within the UNCLOS context, states parties are required to provide protections for resources in the high seas and to provide for their enforcement.70 This requirement has been raised to support parties’ arguments before the ITLOS, and through decisions of the ITLOS, environmental protection and sustainable development have been incorporated into the UNCLOS regime, and taken into account. In this way, the UNCLOS dispute settlement regime has fostered greater transparency and modernisation of the treaty, contributing to the interactional development of the broader global system of maritime conservation.
In addition, the international community recognized the specific protection needs of straddling stocks in the United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly (p. 214) Migratory Fish Stocks.71 The Straddling Stocks Agreement incorporates many aspects of sustainable development law and practice, such as the precautionary approach, into the regulation of these forms of fish species and the scientific and legal systems that govern them at the domestic and international levels.72 As part of the UNCLOS, the Straddling Stocks Agreement also forms part of the overall UN system, which assists in the facilitation of periodic review meetings regarding its terms, their implementation, and additional issues that need to be addressed within the Agreement’s context. The role of the UN in these treaties is discussed in greater detail elsewhere in this volume.
As discussed previously, the UN has played a very important role in the making, implementation, and interactional refinement of key multilateral treaties to facilitate international collaboration on global environmental challenges, in several key clusters of interlinked problems. Environmental issues are not always global, however, and at the regional and bilateral levels, significant innovations are occurring to help resolve more local problems.
In a very direct manner, UN regional commissions have played an important role. For instance, the UNECE has a history of treaty regimes relating to long-range transboundary air pollution, beginning with the 1979 Convention on Long-Range Transboundary Air Pollution itself.73 Fundamental to the Convention is the network of information exchange and consultation for research and monitoring of air pollution levels and associated technologies.74 It also established the Cooperative Programme for the Monitoring and Evaluation of the Long-Range Transmission of Air Pollutants in Europe, which fostered additional mechanisms for consultation and the creation of a regional method for combatting the issues associated with pollution.75 This Convention set the stage for the subsequent Espoo Convention and international treaty regimes addressing climate change and air pollution. In addition, it should be noted that the UNECE’s Aarhus Convention on Access to Information, Public Participation in Decision Participation in Decision-Making and Access to Justice creates a system through which citizens are (p. 215) entitled to greater means of information sharing, transparency, and participation in matters that are particularly impactful, such as environment and climate.76 Indeed, the Convention’s drafters specifically noted the essential link between access to information, participation, and climate governance, stressing that “improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns.”77 The Aarhus Convention continues to receive extensive support from the UNECE and, in connection with this, assisted in the negotiation of the 2009 Kiev Protocol on Pollutant Release and Transfer Registers. This Protocol requires that national registers for both pollutant release and transfer be created and maintained so as to ensure an informed population.78 As part of the Kiev Protocol regime, an International Pollutant Release and Transfer Registers (PRTR) Coordinating Group was established to allow for coordination and dialogue among governments, nongovernmental organizations, and international organizations on these topics.79 Such mechanisms, supported in their technical design and practice by all UN regional commissions where they can be relevant, have since become more common in domestic and regional environmental law. Similarly, the African Union began working to control transportation and management of hazardous wastes in the early 1990s. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal supports the ability of regional and other entities to create more intensive agreements where appropriate,80 and within this framework, the African Union promulgated the Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa.81 While the Basel Convention’s terms are more wide-ranging, as is its application, its work is influenced by the regional practices typified in the Bamako Convention in terms of understanding the issues as they apply to states that receive significant amounts of hazardous wastes, and the regional accord operates within the framework of the global.
Further, in an indirect manner, treaty arrangements adopted in transboundary contexts, or regionally, can also serve as first steps for global cooperation or iteratively, can assist in implementing multilateral accords. They are both an opportunity to test instruments and rules that if successful, can be picked up by the UN or others, and (p. 216) eventually adopted globally, and a global framework for regional treaties, which are often facilitated by the UN. For instance, concerns about air pollution, particularly transboundary haze generated as a result of forest and other fires, led the Association of South East Asian Nations (ASEAN) and its member states to craft the ASEAN Agreement on Transboundary Haze Pollution82 to address transboundary haze in the region.83 It seeks to balance the rights of member states to exploit their natural resources while developing in ways that respect environmental law,84 and is supported by a Co-ordinating Centre for Transboundary Haze Pollution Control, which seeks coordinated management of fires and other disasters, as well as prevention and monitoring efforts.85 Its prevention and monitoring solutions, if successful, might be considered to support implementation of the UNFCCC Paris Agreement internationally. Iteratively, as a second example, in 1986, Caribbean states and associated regions ratified the Convention for the Protection and Development of the Marine Environment in the Wider Caribbean Region in order to facilitate broad-based cooperation between states parties and to provide for a follow-up mechanism.86 This Convention has been influential in designing protections for the regions throughout its existence, and supports the implementation of the CBD.87 The Convention has also generated measures that supplement the CBD’s goals and protections, for example through the Specially Protected Areas and Wildlife Protocol.88
2 The UN Role in Treaty-Making to Address Environmental Problems
Treaty regimes, particularly those focused on understanding and resolving quickly changing environmental problems, often develop interactionally, building on the foundations of intergovernmental and also independent scientific collaboration mechanisms, to generate new and innovative solutions to persistent and emerging issues on (p. 217) the international scale.89 This tendency has been fostered by the mission and framework of the United Nations itself, including its expert staff, and the leadership of the treaty regimes that are established to address some of the most difficult environmental challenges. In a direct and central manner, the United Nations has played a crucial role in advancing international cooperation to address environmental problems. The UN’s involvement supports states and coalitions of like-minded states, and also the work of broader epistemic communities in supporting treaty negotiation and implementation.
Through problem identification and scientific collaboration; facilitation of negotiations and eventual consensus; encouragement for ratification; provision of technical support for implementation; establishment and operation of financial instruments; compliance procedures; peaceful dispute resolution; assistance with capacity-building, public education, and participation; and also through transparency (monitoring, reporting, and verification) efforts that then “interactionally” help to refine the regimes themselves, the UN has guided and supported the emergence of international law on the environment and sustainable development.90
On transboundary problem identification and scientific collaboration, for instance, the UN can assist in coordinating international scientific scans and studies, or providing independent and relatively neutral summaries and compilations of scientific data. Often, in environmental matters, it is a question of sounding the alarm on problems. Data is shared with state decision-makers, and in certain instances, becomes the platform for states and nonstate actors to reach consensus on environmental problems and work to address them together. In some cases, the UN has also supported efforts to “fail forward” into cooperative instruments to address them.91
As another example, support from the UN has been crucial in the establishment of effective and reliable financial bodies to support activities agreed in international treaties, and therefore, also compliance. Increasingly complex financial mechanisms are being established as states and others start to invest more deeply in addressing environmental problems, and the UN has played a significant role in making this possible. For instance, the UN supported the creation of the Global Environment Facility as recommended by the UN Conference on Environment and Development in 1992, and contributes to its work, with both UNDP and UN-Environment as implementing agencies.92 (p. 218) Similarly, new methods of financing for clean development and renewable energy have been tested under the UNFCCC through the Kyoto Protocol, and are now included through a sustainable development mechanism in the Paris Agreement.93 Through its programs and treaty secretariats, the UN supports the design and implementation of these funds to implement the law, convening and facilitating the engagement of states that guide and contribute to the funds, and providing guidance to ensure adherence to agreed principles, rules, and procedures.
As a further example, the UN supports states in resolving disputes on treaty interpretation peacefully, both through the inclusion of dispute settlement provisions in the accords, and through the encouragement of their appropriate use. Dispute settlement mechanisms, particularly references to the International Court of Justice, the International Tribunal on the Law of the Sea, and others, are customarily entrenched in treaty regimes. The awards and decisions of these bodies not only resolve disputes that might otherwise further degrade the contested areas, but also assist states to understand their binding obligations and principles, interpreting the treaty law with an independent and respected voice. UN-Environment, through a highly motivated Law Division,94 has assisted states in complying with their treaty obligations, providing analysis, technical knowledge, and training on MEA obligations, and by hosting forums for judges and officials to discuss new developments in international law that affect environmental protection.
Transparent reporting, monitoring, and verification practices have also become more common in international law, having arguably been piloted by the UN and states parties to the treaties discussed herein. For instance, with UN technical support, the adoption of operational information-sharing arrangements, such as regular peer-reviewed monitoring, reporting, and verification (MRV) systems, public online databases, and clearinghouses for information-sharing have engaged states and nonstate actors in the international community in treaty implementation.95 By encouraging greater transparency in the treaty negotiation and implementation process, in part through the provision of important national information, the UN has advanced international law and procedure. Presently, regular submission of “national communications” has become nearly a standard obligation for states under treaties on the environment, generating an increase in transparency and greater compliance with agreed state reporting practices.96 The transparent information exchange has made it possible for parties to better understand the likely risks and impacts of harmful practices or inaction, building political will over time, strengthening their resolve to follow through on the implementation of their treaty obligations, and assisting with the prioritization of their investments.
(p. 219) Treaty regimes on the environment rely upon public participation, education, and dissemination of information to generate awareness, ownership, and support for their work on all levels, and the UN assists in this process. In the treaties, parties commit to promote public participation within their decision-making regimes, for instance through the granting of observer status to nongovernmental organizations with an interest in the subject matter, encouraging multilateral engagement of stakeholders in a manner similar to the observer status granted to ECOSOC-accredited organizations at the UN. Public access to information through technology and media is generating new potentials for meaningful public participation and engagement.97 International and national registries are being routinely encouraged, serving to increase citizen knowledge and awareness of science, law, and other developments related to the treaty’s subject matter.98 Across the UN, many agencies also work to provide independent, accessible information in relation to the objectives and obligations of the accords. This public engagement in turn supports states’ efforts to comply with treaty obligations, encouraging partners and stakeholders to contribute to the treaty.
These important efforts to foster interactional mechanisms constitute an innovation attributable to the UN system. However, despite many positive aspects, recent increases in the complexity and numbers of international treaties in the field of the environment are presenting important challenges, particularly for coherent, effective treaty implementation across a broad cross section of parties to the agreements. This is perhaps unsurprising, given the need to bring together key treaty-bodies that have been created in different eras and circumstances, even if through a common UN-based system. Indeed, each challenge presents unique opportunities to further strengthen and develop the environmental aspects of a broader international legal system that is both supported and facilitated by the UN, in support of global policy goals.
Fragmented, overlapping, incoherent, or even contradictory priorities with limited resources have become an important obstacle for progress in implementing any treaty, and this is particularly clear in the environmental arena. In some cases, treaty obligations under one regime appear to encourage actions that overlap with, or even obviate, the efforts of countries under other accords. Such overlaps, particularly where environmental and other development concerns are all at stake, can be difficult to manage.99 For the UN, ensuring that all actors are working toward similar goals can become crucial, to avoid instructions that are impossible to carry out or worse, conflict, rendering one set of treaty priorities impossible to achieve purely through lack of coordination. This could be the case, for example, where requirements of trade and investment liberalization disciplines appear to overlap or even discourage environment and sustainable development treaty implementation.
A further challenge occurs when a state, particularly a major power, decides or threatens to withdraw from the treaty regime, trailing broken commitments. While the UN, (p. 220) as a neutral body, only has a certain role to play in addressing such challenges to a treaty regime, other states will often rally to oppose and repudiate the decision, and can act collaboratively limit the effects of such a defection. As an illustrative example, after being deeply engaged in negotiations, gaining many concessions, and committing to provide strong support, in 2017 following an administration change the United States announced an intention to withdraw from the UNFCCC Paris Agreement. Rather than causing the downfall of the Paris Agreement as US leaders had predicted, the international response was strong repudiation and rallying of a broad swath of states, all expressing their renewed determination to implement and respect the Paris Agreement.
Further, treaty regimes themselves can be constructed to ensure greater resilience, for instance, by providing time for other states to accommodate the (often temporary) loss of a partner. Such provisions are found in the successful Montreal Protocol to the Vienna Convention on the Protection of the Ozone Layer, which encourages parties to join or rejoin the regime by excluding them temporarily from global markets if they continue to permit the use of ozone-depleting substances. Indeed, states are increasingly negotiating long-term and relatively sophisticated instruments that create new entities to administer collaboration.100 Such compliance measures, reporting obligations, financial commitments, withdrawal arrangements, and capacity-building elements, together with other mechanisms, seek to support implementation of the accords even in the instance of broken promises.
While such a role for the UN is typical of many multilateral environmental agreements that have been negotiated to address particular environmental problems, it also applies more broadly to treaties that seek to promote sustainable development solutions. Indeed, the need for coherent commitments to commonly agreed solutions across the UN system became particularly evident in 2012, with calls for a universal framework for collaboration on the world’s shared environment, economic, and social priorities, mobilizing parties, the UN system, and other partners around a set of common targets and objectives for decades to come.
3 UN Treaty-Making to Promote Sustainable Development Solutions
The UN works to ensure that its member states, the grand majority of which are developing countries, can meaningfully and accountably participate in international efforts to address global environmental problems. States have sovereignty over natural resources, and are vested with authority to regulate development activities that can drive or cumulatively (p. 221) exacerbate environmental problems.101 In many cases, international efforts to address problems will fail without broad-based cooperation. Especially in developing countries, viable solutions are needed to secure sustainable livelihoods for people. In addition to providing for nature conservation and environmental protection, many multilateral environmental accords also aim to promote more sustainable development. From a pragmatic viewpoint, such sustainable development provisions are important. Global environmental problem-solving is otherwise unlikely to be prioritized, particularly in democratic developing countries with many communities living below poverty lines, and governance systems that are accountable to citizens. UN decision-makers are aware of these pressures, and have sought for years to ensure that treaty promises on sustainable development can be achieved on the ground.
Global commitment to sustainable development, in international policy debates and in laws, have crystallized over recent decades.102 As scientific cooperation, technological advances, and globalization continues to link economies, ecosystems, and people in more fundamentally important and impactful ways, it has become clear that social, economic, and environmental challenges will not be resolved without significant effort to deliver sustainable development, worldwide.103 Sustainable development solutions are being sought in international trade and investment treaties, in international human rights instruments, and also in multilateral environmental agreements.104 Indeed, sustainable development has joined the lexicon of crucial objectives in environmental agreements, such as protecting the environment, preventing pollution, and preserving endangered species. Through these treaties and other international consensus-building processes, often led by the UN in collaboration with expert institutions, sustainable development principles have been recognized over time. As explained in the 2002 International Law Association New Delhi Declaration Principles of International Law on Sustainable Development, states are increasingly recognizing the importance of key norms—such as the need to ensure that natural resources are used sustainably, (p. 222) to support greater equity and the eradication of poverty, to respect common but differentiated responsibilities, to adopt a precautionary approach, to promote public participation and access to justice, to ensure good governance, and to facilitate integration of environmental and social concerns into economic decisions. Such principles may well already be shaping their collaborations for sustainable development.105
Discerned by leading international experts over a decade of analysis, the ILA New Delhi Principles are identified across the spectrum of international law, from binding multilateral treaty regimes to international tribunal decisions. These principles are increasingly being incorporated into international treaty regimes. One notable example is the Paris Agreement, which reflects the importance of promoting public participation, integration, common but differentiated responsibilities, intergenerational equity, and other sustainable development principles.106 As a second example, commitments to equity and the protection of natural resources also feature prominently in the 2004 International Treaty on Plant Genetic Resources for Food and Agriculture, which seeks to balance the needs of the farmers and farming communities with the needs of the states and international community in order to promote fairness and equality of access.107
Across international courts, the International Court of Justice has taken account of principles of good governance and precaution in such seminal decisions as the Costa Rica v. Nicaragua territorial dispute cases.108 These principles have also helped the World Trade Organization’s Dispute Settlement Body to render decisions,109 as has the principle that economic policies must integrate environmental and social considerations.110 In the context of human rights, the ILA Principles have also been incorporated in the intergovernmental findings of the UN Human Rights Council and the Committee on the Rights of the Child,111 as well as at the regional level in the African Court of Human (p. 223) and Peoples’ Rights,112 the Inter-American Court of Human Rights,113 and the European Court of Human Rights.114 In essence, sustainable development, in international law, is reflected through a variety of instruments, with key roles being played by the UN, together with many other intergovernmental agencies and actors. The opportunity for progress has never been greater, alongside the risk of fragmentation, duplication, and dispersal of wasted effort.
Negotiated over several years following the 2012 United Nations Conference on Sustainable Development, as the successor to the 2000 Millennium Development Goals, the UN-sponsored Sustainable Development Goals (SDGs) offer a unique opportunity for states and stakeholders to collectively collaborate in an integrated manner on key environmental, social, and economic development priorities, worldwide.115 As a common framework to minimize fragmentation and duplication, to encourage and channel cooperation efforts, and to facilitate joint monitoring and reporting on progress, the SDGs offer many advantages. A collection of 17 global, universal goals and 169 targets, addressing diverse policy priorities including poverty, hunger, health, education, gender, water and sanitation, clean energy, employment, infrastructure, consumption and production, climate change, marine life, and terrestrial life among others, are relevant to all countries and communities.116 Further, while the SDGs themselves may be considered aspirational, as CISDL and UN-Environment legal research has demonstrated, each SDG is supported by an array of binding international treaty law, which sets instruments in place to support collaboration to achieve key targets.117
The role of the UN in the international treaties that respond to the environmental aspects of these SDGs have been discussed previously. In particular, to achieve SDG 13—Climate Action, the treaties noted earlier, as global responses to the threat of climate change, desertification, and ozone layer destruction are directly relevant. To achieve elements of SDG 3—Good Health and Wellbeing, and SDG 12—Responsible Consumption and Production, the treaties on pollution, including chemicals, wastes, and transboundary air pollutants, provide important tools. To achieve SDG 15—Life on Land, the treaties (p. 224) that focus on biodiversity, wildlife, and species at risk are crucial international instruments. To deliver on key environmental aspects of SDG 6—Clean Water and Sanitation, the treaties surveyed for their contributions to the protection of transboundary freshwater systems and wetlands are key, although international human rights instruments also support the human right to water and sanitation.118 The UN and its partners play a key role in both the environmental and the human rights aspects of delivering this SDG.119 Further, in order to achieve SDG 14—Life Below Water, the global treaties to ensure protection of the world’s oceans and marine resources establish frameworks for collaboration, although accords governing regional seas and other instruments are also highly relevant.
For other SDGs, including SDG 1—No Poverty, SDG 4—Quality Education, SDG 5—Gender Equality, and SDG 7—Affordable and Clean Energy, among others, there are further clusters of other relevant UN treaties, all of which aim to secure more sustainable development. In each of these policy areas, the UN plays a vital role in engaging states in negotiations, in developing the broader treaty regimes, and in supporting implementation and interactionally, refinement of the regimes themselves. In essence, clusters of international treaty regimes address the subject matter of each SDG, and hold sustainable development as part of their object and purpose. The broader collaborative regimes that surround these treaties, it can be argued, also provide pathways to support the Charter of the United Nations as a whole.
In the final part of this chapter, a few illustrative examples are offered that explain this view, noting that for the UN, all support for the making (and constant remaking) of international law, may also be part of a broader mission to build coherent and cooperative frameworks for sustainable development.
To support sustainable development, the crucial SDG 1—No Poverty must be achieved. Key UN human rights treaties and their associated regimes, such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights,120 play important roles in efforts to eradicate poverty.121 Nearly all international accords that touch on the environment and development include commitments to poverty eradication, and seek to facilitate sustainable ways to end poverty.122
(p. 225) For instance, to achieve SDG 3—Good Health and Well-Being, progress is needed in many areas, ranging from maternal and child mortality to tuberculosis to non-communicable diseases to illness stemming from air pollution.123 Global efforts to improve health fall broadly within the purview of the World Health Organization and its associated treaty efforts, such as a Global Convention on Tobacco,124 but are also supported by UN treaties such as the Convention on the Rights of Persons with Disabilities,125 which are discussed elsewhere in this volume. Further, the Minamata Convention stresses the health impacts of mercury pollution, and links health and environmental concerns.126 Relevant instruments equally include human rights treaties such as the ICESCR, the CRC, and CEDAW.127 The role of the UN in these accords is discussed elsewhere in this volume, but among others, they directly address the targets established in SDG 3,128 and are part of international law on sustainable development. Through such accords and other efforts, the UN, in collaboration with many actors worldwide, plays a key role to achieve SDG 3 on Good Health and Well-Being.129
As another example, efforts to achieve SDG 4—Quality Education are furthered through the efforts of states to respect their obligations under the UN Convention on the Rights of the Child and the associated Committee on the Rights of the Child.130 By committing to further public awareness and environmental education, and by taking into account the rights and needs of future generations, many environmental treaties mentioned earlier support SDG 4. The role of the UN in the creation and implementation of these conventions and associated regimes has been important in the past, and continues to be significant.131 SDG 4 identifies many key facets to secure quality education, such as ensuring equality of access to education for boys and girls, access to free education for boys and girls through established levels, literacy for children and adults, the ability of those with disabilities to access and partake in education in their communities, and the (p. 226) supply of qualified teachers.132 Alongside the CRC and the ICESCR, accords such as CEDAW and the Disabilities Convention, discussed elsewhere in this volume, play a crucial role.133 In building, through education for sustainable development and for global citizenship, an educated international population, the UN, including for instance the UNESCO and UNICEF, play a crucial role in achieving SDG 4 and all other SDGs.134
As an additional example, to achieve SDG 5—Gender Equality, the UN, its member states, and its partners aim to ensure that women and girls can be free from gender-based and associated violence in conflict and in daily life, as well as providing for full access to participation in society for women, including for governance and economic spheres.135 SDG 5 rallies and recognizes the efforts of the UN and its partners to achieve the CEDAW, the CRC, and the ICESCR, and also environmental accords that explicitly commit to foster the education and involvement of citizens, such as the Espoo Convention and the Paris Agreement.136 Efforts of the UN, including through technical assistance and direct engagement, have been essential for the negotiation and implementation of such accords to support SDG 5.137
As one further example, there are also international treaties that support efforts to achieve SDG 7—Affordable and Clean Energy. For instance, the Energy Charter Treaty offers methods of encouraging sustainability in energy use and production, leading to an overall increase in sustainable production of goods across sectors.138 At the same time, by seeking to ensure that there is individual access to clean energy at the global level, SDG 7 acts as a way of furthering essential protections contained in the ICESCR and the CRC, such as the ability of children to attend school in diverse conditions.139 Trade and investment agreements, which increasingly seek to promote renewables and other forms of clean energy technologies, can also play a role, and in some instances, UN agencies such as UNCTAD can assist in ensuring that developing countries can understand and participate in these negotiations,140 as is discussed elsewhere in this volume.
In conclusion, although the SDGs are aspirational in nature, they are supported by significant and entrenched treaty regimes that are capable of both assisting in their (p. 227) implementation and growing to meet the needs of the SDGs. These treaty regimes can be viewed as setting baselines for the interpretation and implementation of many SDG commitments. The engagement of the UN, as facilitator of the SDG drafting process, and in its role, across all programs and agencies, to help states to achieve the SDGs, has been crucial, and continues to be significant in efforts to gather, coordinate, and support intergovernmental cooperation on each SDG.
4 Contributions of International Law on the Environment and Sustainable Development toward Achieving the UN Charter
In conclusion, this chapter has argued that international treaty regimes to address environmental problems, and for sustainable development more broadly, are facilitated and supported by the UN from inception to implementation to improvement, interactionally. These treaties in turn support and promote the objects of the UN Charter, including through their role in facilitating the achievement of the global SDGs.
Building from the successes and failures of the Millennium Development Goals, the process of developing the SDGs was facilitated by the UN to bring about a broad global consensus on the future global sustainable development agenda. With inputs and commitments from governments, civil society, nongovernmental organizations, the private sector, and the public, the SDGs were drafted and adopted. For each SDG, epistemic communities and nonstate actors have engaged and been strengthened, building cross-sectoral understanding supported, in part, by UN-facilitated stakeholder participation in the 1992 Rio Earth Summit, the 1997 UN General Assembly Special Session on Sustainable Development, the 2002 Johannesburg World Summit on Sustainable Development, and the 2012 United Nations Conference on Sustainable Development, among other global consensus-building processes.141
From a history rooted in limited, sector-specific, science-based specialist environmental problem-solving, international environmental treaty regimes have joined, and been recognized as, an integral pillar of international law on sustainable development. Practice and scholarship supports the growing acceptance of theories of interactional regime development supported by epistemic communities, and as the recent SDGs demonstrate, there is every reason to believe that this trend will continue in the future. Examples such as the Paris Agreement and the Minamata Convention demonstrate clearly the role of the UN in supporting both the purposes and obligations of specific treaty regimes, and the broader SDGs that these accords, in turn contribute toward.
(p. 228) This review concludes that within the ambit of international society and international organizations, the UN is a unique entity in which such discussions and information-sharing can take place due to its overall identity, ability to convene the whole of the international community through the weight of its name, ability to facilitate and support discussions and meetings in which all aspects of public and private society can engage in meaningful dialogue, ability to build the capacity necessary to implement treaty terms and engage with treaty mechanisms, and ability to resolve disputes on the environment and sustainable development in a well-respected forum. Each of these abilities is essential to the treaty negotiation and implementation process, and together they lend a special presence to UN involvement in these processes that cannot be replicated in other organizations or entities.
International treaty-making processes have been essential in the development and adoption of the SDGs, and the interactional process of implementation, which includes strengthening the accords and their instruments through peace negotiation and refinement of the treaty terms themselves, will be equally vital for the meaningful achievement. At present, the international community faces challenges regarding the implementation of sustainability, particularly from fragmentation and incoherence among multiple efforts on one hand, and growing trends of intolerance and parochialist populism that risks defeating the scant efforts of key countries on the other. The fragile yet complex, interdependent, and increasingly binding webs of international law shall be essential to forge any common future for humanity. Coherent governance shall be particularly crucial to resolve increasingly urgent environmental and natural resources management threats. As states and their nonstate partners struggle to build and implement, by consensus, increasingly complex systems of rules and actions, across uncertain science and diverse societies, treaties can do a world of good.
This chapter has highlighted emerging trends in international collaborations, including transboundary ecosystem management, partnerships with civil society, different levels of government and the private sector, green economy financial measures and investment incentives, and many forms of dispute resolution and consensus-building. These measures, among others, are furthered and made more meaningful as a result of UN involvement in the treaty negotiation and implementation process. In essence, while weak and imperfect, the efforts of states through their environmental treaty regimes to address emerging challenges, and the ever-increasing contributions of these and other international accords toward achieving the world’s broader Sustainable Development Goals, remain positive signs. Political oscillations of large economies shaped by interests vested in unsustainable development may continue to occur. However, the potential for coherence and cooperation through international law has deep roots. With our only planet and all its people at stake—these roots must prove strong enough to support the structures that are necessary for our common future.
* Full Professor of Law, School of Environment, Entrepreneurship & Development (SEED), University of Waterloo; Senior Director, Centre for International Sustainable Development Law (CISDL); Senior Advisor/Fellow, Centre for Environment, Energy & Natural Resources Governance (CEENRG) and Lauterpatcht Centre for International Law (LCIL), University of Cambridge; & Executive Secretary, UN Framework Convention on Climate Change Climate Law & Governance Initiative (CLGI). Warmest thanks and acknowledgments are extended for the insights and contributions of Dr. Alexandra Harrington, Lead Counsel for Governance & Intergenerational Justice, CISDL; & Fulbright Canada Research Chair in Global Governance, Balsillie School of International Affairs, Canada.
1 See, eg, Patricia W Birnie, Alan E Boyle, and Catherine Redgwell, International Law & the Environment (3rd edn, OUP 2009); Philippe Sands, Principles of International Environmental Law (3rd edn, CUP 2012); Marie-Claire Cordonier Segger and Ashfaq Khalfan, Sustainable Development Law: Principles, Practices & Prospects (OUP 2004).
2 See United Nations Environment Programme (UNEP) “Global Environment Outlook 5: Environment for the Future We Want” (2012); Intergovernmental Panel on Climate Change (IPCC) “Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change” (Geneva 2015).
4 Jutta Brunnee and Stephen J Toope, “Interactional International Law”  3 International Theory 307; Marie-Claire Cordonier Segger, “Advancing the Paris Agreement on Climate Change for Sustainable Development” (2016) 5(2) Cambridge J Intl and Comp L 38; Carol A Petsonk, “The Role of the United Nations Environment Programme (UNEP) in the Development of International Law” (1990) 5 Am Univ Intl L Rev 351; Laurence D Mee, “The Role of UNEP and UNDP in Multilateral Environmental Agreements” (2005) 5(3) Intl Environmental Agreements: Politics, Law and Economics 227.
7 See, eg, Marie-Claire Cordonier Segger and HE Judge CG Weeramantry (eds), Sustainable Development Principles in the Decisions of International Courts and Tribunals (Routledge, 2017); Nico Schrijver, Freidl Weiss, and Bruno Simma, International Law and Sustainable Development: Principles and Practices (Martinus Nijhoff 2004); Elisabeth Burgi Nonanomi, Sustainable Development in International Law Making and Trade: International Food Governance and Trade in Agriculture (Edward Elgar 2015).
8 Cordonier, Segger, and Khalfan (n 2).
10 UN-Environment, International Environmental Governance (UNEP, 2017) online: <1https://www.unenvironment.org/annualreport/2015/en/environmental-governance.html>.
13 Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December 1997, entered into force 16 February 2005) 2303 UNTS 148; Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016).
14 Vienna Convention on the Protection of the Ozone Layer (open for signature 22 March 1985, entered into force 22 September 1988) 1513 UNTS 293, preamble. See also Osamu Yoshida, The International Legal Regime for the Protection of the Stratospheric Ozone Layer: International Law, International Regimes, and Sustainable Development (Martinus Nijhoff 2001); Petsonk (n 5); Cesare PR Romano, “Ozone Layer Depletion” in CPR Romano, Conventions, Treaties and Other Responses to Global Issues II (UNESCO 2009).
15 Vienna Convention on the Protection of the Ozone Layer (n 14) arts 1–4.
18 See generally Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol) (concluded 16 September 1987, entered into force 1 January 1989) 1522 UNTS 3; 26 ILM 1550. See also Oscar Casswell-Laird, “International Environmental Agreements: Does Montreal Have Lessons for Kyoto?” (2008) IPS Working Paper 3/2008; David W. Fahey, “The Montreal Protection Protocol of Ozone and Climate” (2013) 14 Theoretical Inquiries L 21.
19 See Montreal Protocol (n 18)arts 4, 4A.
20 ibid art 10. See Yoshida (n 14); Cesare PR Romano, “Ozone Layer Depletion” in Gabriela Maria Kutting (ed), Conventions, Treaties and Other Responses to Global Issues vol II (UNESCO 2009).
24 UN Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (adopted 7 June 1994, entered into force on 26 December 1996) 1954 UNTS 3.
27 UN Convention to Combat Desertification (n 24) art 10.
30 Cordonier Segger (n 5). See also generally Sébastien Duyck, Sébastien Jodoin, and Katherine Lofts (eds), Public Participation and Climate Governance Working Paper Series (CISDL 2015).
31 UNFCCC Secretariat, Meet the Hosts (2017) <https://unfccc.int/process/conferences/un-climate-change-conference-november-2017/about/meet-the-conference-hosts>.
42 Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context (Kiev Protocol) (adopted 21 May 2003, entered into force 11 July 2010).
43 Espoo Convention (n 41).
47 Cartagena Protocol (n 46); see Marie-Claire Cordonier-Segger and Frederic Perron-Welch (eds), Legal Aspects of Implementing the Biosafety Protocol (CUP 2013).
48 Nagoya—Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biodiversity (adopted 15 October 2010, entered into force 5 March 2018) UN Doc No. UNEP/CBD/BS/COP-MOP/5/17.
49 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (adopted 29 October 2010, entered into force 2014) UN Doc No. UNEP/CBD/COP/DEC/X/1.
52 Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) (adopted 3 March 1973, entered into force 1 July 1975). See also Christine Fuchs, “Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) – Conservation Efforts Undermine the Legality Principle” (2008) 9 German LJ 1565; John Lanchbery, “The Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES): Responding to Calls for Action from Other Nature Conservation Regimes” in Sebastian Oberthur and Thomas Gehring (eds), Institutional Interaction in Global Environmental Governance: Synergy and Conflict among International and EU Policies (MIT Press 2006); John L Garrison, “The Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) and the Debate Over Sustainable Use” (1994–1995) 12 Pace Environmental LR 301.
53 CITES, (n 52) at art XII.
55 See Richard Caddell, “Convention on Migratory Species of Wild Animals” (2012) 22 YB Intl Environmental L 273; Cyril De Klemm, “Migratory Species in International Law”  29 Natural Resources J 935; Robert A Johnson et al, “Climate Change and Migratory Species” BTO Research Report 414 (2005).
56 CMS (n 54).
61 UN Economic and Social Council (ECOSOC)/Economic Commission for Europe (UNECE) “Addendum” to “Report of the Meeting of the Parties on its sixth session: Decisions and vision for the future of the Convention: Decision VI/1 Support to implementation and compliance” (19 September 2013) UN Doc. ECE/MP.WAT/37/Add.2.
62 Convention on the Law of the Non-navigational Uses of International Watercourses (adopted 21 May 1997, entered into force 17 August 2014); Convention on the Protection and Use of Transboundary Watercourse (n 60) pt II.
63 Convention on the Protection and Use of Transboundary Watercourse (n 60) pt III.
66 See Daniel Navid, “The International Law of Migratory Species: The Ramsar Convention” (1989) 29 Natural Resources Journal 1001; GVT Matthews, The Ramsar Convention on Wetlands: Its History and Development (Ramsar Convention Bureau, 1993).
67 Navid, Ramsar Convention (n 66).
70 United Nations Convention on the Law of the Sea (n. 68).
71 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Straddling Stocks Agreement) (adopted 4 August 1995, entered into force 11 December 2001); Colin Warbrick, Dominic McGoldrick, and DH Anderson, “The Straddling Stocks Agreement of 1995 – An Initial Assessment” (1996) 45 Intl. & Comp LQ 463; David A Bolton, “Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks” (1996) 27 Ocean Dev& Intl L125. But see Lawrence Juda, “The 1995 United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks: A Critique” (1997) 28 Ocean Dev & Intl L 147.
72 Straddling Stocks Agreement (n 71) at arts 5, 6.
81 Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (adopted 30 January 1991, entered into force 22 April 1998) 2101 UNTS 177.
85 ASEAN Agreement on Transboundary Haze Pollution (n 83) art 5.
86 Convention for the Protection and Development of the Marine Environment in the Wider Caribbean Region (Cartagena Convention) (adopted on 24 March 1983, entered into force on 11 October 1986) 1506 UNTS 157.
88 Protocol Concerning Specially Protected Areas and Wildlife to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (adopted 18 January 1990, entered into force 17 June 2000) 2180 UNTS 101.
89 Lon L. Fuller, “Human Interaction and the Law”(1969) Am J Jurisprudence 1; Jutta Brunnee and Stephen J Toope, “Interactional Legal Theory, the International Rule of Law, and Global Constitutionalism” in Anthony F Lang and Antje Wiener (eds), Handbook on Global Constitutionalism (Edward Elgar, 2017); Marie-Claire Cordonier Segger, “Sustainability, Global Justice, and the Law: The Contributions of Hon. Justice Charles Doherty Gonthier” (2010) 55 McGill LJ 337. See also Anne-Marie Slaughter, “Liberal International Relations Theory and International Economic Law,” (1995) 10 Am Univ L Rev 717; Edith Brown Weiss, “International Environmental Law: Contemporary Issues and the Emergence of a New World Order” (1993) 81 Georgetown LJ 675.
92 Charlotte Streck, “The Global Environment Facility—A Role Model for International Governance?” (2001) 1(2) Global Environmental Politics 71; Frank Biermann and Bernd Siebenhüner (eds), Managers of Global Change: The Influence of International Environmental Bureaucracies (MIT Press 2009).
94 UN-Environment,InforMEA https://e-learning.informea.org/ accessed January 01, 2019.
95 See Vienna Convention on the Protection of the Ozone Layer (n 14) art 5; Minamata Convention (n 37) art 17; Convention on Migratory Species (n 55) art V; UN Convention on the Law of the Non-navigational Uses of International Watercourses (n 62) art 9.
96 See Minamata Convention (n 37) art 19; Espoo Convention (n 41) Appx II; Convention on Biological Diversity (n 45) art 26; Convention on the Protection and Use of Transboundary Watercourses and International Lakes (n 59) arts 4, 5.
97 Duyck, Jodoin, and Lofts (n 30).
99 Cordonier Segger and Khalfan (n 1).
102 Cordonier Segger (n 4).
103 See Amartya Sen, Development as Freedom (OUP 1999); Paul Collier, “Democracy, Development and Conflict” (2008) 6 J European Economic Assn 531; Jeffrey D Sachs, “From Millennium Development Goals to Sustainable Development Goals” (2012) 379(9832) The Lancet 2206.
104 See Nico Schrijver, “Advancements in the Principles of International Law on Sustainable Development” in Marie-Claire Cordonier Segger and CG Weeramantry (eds), Sustainable Development Principles in the Decisions of International Courts and Tribunals, 1992–2012 (Routledge 2017) 99–102 (providing an overview of the ways that sustainable development principles have been incorporated into and operationalized by international treaty regimes and tribunals); Duncan French, “The Sofia Guiding Statements on Sustainable Development Principles in the Decisions of International Tribunals,” in Cordonier, Segger, and Weeramantry, supra 177–84 (noting the ways that sustainable development has been incorporated into the juridical activities of international bodies convened under the auspices of UN associated and influenced treaty regimes); Marie-Claire Cordonier Segger, Alexandra Harrington, and FJ Condon, “Judicial Deliberations and Process on Sustainable Development” in Cordonier Segger and Weeramantry supra 814–24 (discussing the ways in which various treaty regime entities, including multilateral environmental agreements, have incorporated sustainable development into frameworks that were facilitated and endorsed by the UN and associated entities).
106 Paris Agreement (n 93) at art 2.
108 See Jorge Cabrera-Medaglia and Miguel Saldivia-Olave, “Sustainable Development Law Principles in the Costa Rica v Nicaragua Territorial Disputes” in Cordonier, Segger, and Weeramantry (n 104) at 262–65 (suggesting that key sustainable development principles such as the states’ duties to ensure the sustainable use of natural resources, good governance, polluter pays, and prevention are key in the ICJ’s opinion).
109 J Hepburn, “The Principles of Good Governance in WTO Disputes” in Cordonier, Segger, and Weeramantry (n 104) 386–396 (discussing the ways in which principles of sustainable development such as transparency, due process, and the duty to give reasons have acted as guiding forces in the generation and application of WTO law as applied to trade disputes between member states).
110 Henning Grosse Ruse-Khan, “The Principle of Integration in WTO/TRIPS Jurisprudence” in Cordonier Segger and Weeramantry (n 104) 399–402 (providing a discussion of the ways in which integration links sustainable development and legal practice at the WTO level).
111 Stephanie Safdi and Sebastien Jodoin, “The Principles of Sustainable Development in the Practice of UN Human Rights Bodies” in Cordonier, Segger, and Weeramantry (n 104) 447–51 (establishing the ways in which UN-based human rights systems and treaty regimes have implemented sustainable development principles).
112 Hennie Strydom, “Sustainable Development Controversies in the African Commission on Human and Peoples’ Rights” in Cordonier, Segger, and Weeramantry (n 5) 472–90 (using two key cases from the African Court of Human and Peoples’ Rights to demonstrate the importance of sustainable development principles in the Court’s juridical practices).
113 Alexandra Keenan, “Sustainable Development Priorities in the Inter-American Human Rights System” in Cordonier, Segger, and Weeramantry (n 5) at 496–509 (describing the ways in which sustainable development principles have been incorporated into the jurisprudence of the Inter-American Court of Human Rights in regard to indigenous communities).
114 Armelle Gouritin, “Sustainable Development Principles in the European Court of Human Rights” in Cordonier, Segger, and Weeramantry (n 105) at 516–25 (discussing the European Court of Human Rights’ usage of the fair balance requirement).
117 Marie-Claire Cordonier Segger and Elizabeth Mrema (eds), “Sustainable Development Goals (SDGs): Contributions of International Law, Policy and Governance” Series of 10 Legal Issues Papers (UNEP/CISDL 2016).
118 See United Nations Committee on Economic, Social and Cultural Rights “General Comment No. 15: The right to water” (20 January 2003) UN Doc E/C 12/2002/11; UN Human Rights Council Resolution 15/9 (6 October 2010) UN Doc A/HRC/RES/15/9; UNGA Res 68/157 (12 February 2014) UN Doc A/RES/68/157; UNGA Res 70/169 (22 February 2016) UN Doc A/RES/169.
119 See Freedom-Kai Phillips, Cameron A. Miles, Ashfaq Khalfan, and Maria Leichner Reynal, “SDG 6 on Ensuring Water and Sanitation for All: Contributions of International Law, Policy and Governance” Legal Issue Paper (UNEP & CISDL 2016).
120 See Sumudu Atapattu, “International Human Rights and Poverty Law in Sustainable Development” in Cordonier, Segger, and Khalfan (n 1) 319; UNGA Res 41 Declaration on the Right to Development (4 December 1986) UN Doc A/RES/41/128.
121 See International Covenant on Civil and Political Rights (ICCPR) (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 17; International Covenant on Economic, Social and Cultural Rights (ICESCR) (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3.
126 See generally Minamata Convention (n 37).
127 See ICESCR (1966) (n 121); Convention on the Rights of the Child (CRC) (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3; Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 1.
128 Maya Prabhu and Stephanie Blakely, “SDG 3 on Ensuring Healthy Lives and Promoting Well-Being for All at All Ages: Contributions of International Law, Policy and Governance” Issue Brief (UNEP & CISDL 2016).
129 Kent Buse and Sarah Hawkes, “Health in the Sustainable Development Goals: Ready for a Paradigm Shift?” (2015) Globalization and Health 11(13); UN Committee on Economic, Social and Cultural Rights (CESCR), “General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant)” (11 August 2000) UN Doc E/C.12/2000/4.
130 See CRC (n 127).
131 See Claire Fenton-Glynn and Pamela Towela-Sambo, “SDG 4 on Ensuring Inclusive and Equitable Quality Education: Contributions of International Law, Policy and Governance” Legal Issue Paper (UNEP & CISDL 2016).
134 May Miller-Dawkins, “Global Goals and International Agreements: Lessons for the Design of the Sustainable Development Goals” ODI Working Paper 402, Overseas Development Institute November 2014 <http://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/9295.pdf>; Transparency International, “2015 and Beyond: The Governance Solution for Development” Working Paper 01/2013; UNESCO, “Education for All Movement and Report” (UNESCO 2015) <https://en.unesco.org/gem-report/report/2015/education-all-2000-2015-achievements-and-challenges> accessed January 01, 2019.