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The Oxford Handbook of International Environmental Law edited by Bodansky, Daniel; Brunnée, Jutta; Hey, Ellen (7th August 2008)

Part VI Actors and Institutions, Ch.38 Treaty Bodies

Geir Ulfstein

From: The Oxford Handbook of International Environmental Law

Edited By: Daniel Bodansky, Jutta Brunnée, Ellen Hey

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 23 October 2019

Subject(s):
Vienna Convention on the Law of Treaties — EU Treaty

(p. 877) Chapter 38  Treaty Bodies

(p. 878) Introduction

The ‘treaty bodies’ established by many multilateral environmental agreements (MEAs) represent a new form of international cooperation. These bodies, and, in particular, their ‘conferences of the parties’ (COPs), are not merely intergovernmental conferences since they are established by treaties as permanent organs and have subsidiary bodies and a secretariat, while they also differ from traditional inter-governmental organizations (IGOs). These new institutional arrangements grew out of the 1972 UN Conference on the Human Environment in Stockholm. The first environmental treaty to use the term conference of the parties was the 1973 Convention on Trade in Endangered Species of Wild Fauna and Flora (CITES). Although a few MEAs have used an existing IGO,1 or have established a new IGO,2 more recently, COPs have become the preferred institutional machinery for cooperation under MEAs. They have been established, for example, by global treaties addressing climate change, ozone depletion, and biodiversity as well as by regional agreements addressing acid rain in Europe and hazardous wastes in Africa.

Treaties parties may have several reasons for choosing the COP model rather than traditional IGOs. First, using an existing IGO may have the disadvantage of including states that are not parties to the relevant MEA. Second, the establishment of a new IGO may be perceived as more costly and bureaucratic. Third, COPs offer greater flexibility since they do not have a permanent seat but may instead convene meetings in different countries and in different parts of the world.

The next section briefly describes COPs, their subsidiary bodies, and their secretariats. Sections 3 to 5 then discuss, respectively, the decision-making powers of COPs with respect to internal matters, their substantive decision-making powers, and their capacity to act at the external level. A cross-cutting issue in these three sections is the question of the international legal personality of COPs and their implied powers. Finally, section 6 reflects on the applicability of treaty law and international institutional law to the activities of the COPs, the extent to which the treaty bodies in the form of COPs are unique features in international law, and whether the COPs serve their intended functions.

(p. 879) Structure and Functions of Treaty Bodies

The COP, as the supreme organ under MEAs that are applying the COP model, is composed of all treaty parties.3 COPs meet regularly, usually annually or every second year. A bureau elected by the COP may act on its behalf between its regular meetings and serves as a facilitating organ during the COP’s sessions. The functions of COPs are spelled out in their constitutive MEAs, although COPs may have implied powers as well. Typical functions with respect to matters internal to the MEA include establishing subsidiary bodies, adopting rules of procedure, and giving guidance to subsidiary bodies and the secretariat (see section 3). In addition, COPs are instrumental in developing parties’ substantive cooperation under the MEA by adopting new binding or non-binding commitments by the parties (see section 4). Finally, COPs may act at the external level by entering into arrangements with states, IGOs, or the organs of other MEAs (see section 5).

Protocols to MEAs, insofar as they are formally separate agreements, may have their own institutional structure (see section 4 later in this chapter). The substantive linkage between the parent convention and the protocol—and full or partial overlap in membership between the two—may, however, militate in favour of joint institutions or meetings. The Montreal Protocol on Substances That Deplete the Ozone Layer (Montreal Protocol) to the Vienna Convention for the Protection of the Ozone Layer (Vienna Convention) is an example of a protocol that establishes a separate Meeting of the Parties (MOP), which meets in conjunction with the COP of the convention. In contrast, the plenary body of the regional Convention on Long-Range Transboundary Air Pollution (LRTAP Convention) also serves as the governing body of its relevant protocols. The Kyoto Protocol to the UN Framework Convention on Climate Change (UNFCCC) provides that the COP of the convention shall serve as the MOP of the protocol, but parties to the convention that are not parties to the protocol may participate only as observers when the COP acts in this capacity.

Subsidiary bodies may be established through provisions in a MEA itself or, as already mentioned, by decision of the COP. They may have different functions, including financial assistance (as in the case of the Montreal Protocol’s Executive Body), technology transfer, compliance (as in the case of the Montreal Protocol’s Implementation Committee), or scientific advice. Subsidiary organs may have the same membership as the COP, but they may also be established with a limited membership. Although most subsidiary organs are composed of state representatives, (p. 880) some compliance bodies, such as the Kyoto Protocol’s compliance committee, are composed of persons acting in their individual capacity.

A permanent secretariat may be designated in the MEA itself, or the MEA may establish an interim secretariat and leave the final decision to the COP. While the COP and subsidiary bodies are independent organs, many MEAs locate their secretariats with existing IGOs, such as the United Nations, the UN Environment Programme (UNEP), the UN Economic Commission for Europe (UNECE) or the International Maritime Organization (IMO), although some establish more autonomous secretariats. For example, the UNFCCC is ‘institutionally linked’ to the United Nations but without being fully integrated into any of its departments or programmes. The Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention) is unusual in that it uses a non-governmental organization (NGO)—the World Conservation Union (IUCN)—as its secretariat. When an MEA uses an existing IGO to perform secretariat functions, the location of the MEA secretariat may be different from that of the host organization. For example, the secretariat of the Convention on Biological Diversity (CBD) is based in Montreal, whereas the ‘host’, UNEP, is based in Nairobi.

The functions of the secretariat are generally spelled out in the MEA. Typical functions include conducting studies, preparing draft decisions for the COP and subsidiary bodies, providing technical assistance to the parties, and receiving and circulating reports on the implementation of commitments. The secretariat may also serve as the conduit for cooperation with other MEAs and relevant international organizations and bodies, including financial institutions.

Competence at the Internal Level

The powers of the COP at the internal level—that is, in matters relating to the operation of the MEA—may be set out explicitly in the MEA. Typical powers include adopting rules of procedure, adopting financial regulations and the budget, establishing new subsidiary bodies, and providing guidance to these bodies and the secretariat. More general powers may also be provided, authorizing the COP, for example, to exercise other functions required for the achievement of the objective of the MEA. Through such specific and general powers, the COP is provided with authority at the internal level corresponding to that which is provided in the constitutive instruments of the IGOs.

In addition to the powers explicitly granted by the MEA establishing a COP, COPs may have implied powers. The doctrine of ‘implied powers’ has been developed for international organizations, where it found its authoritative expression in the Advisory Opinion of the International Court of Justice in Reparation for Injuries (p. 881) Suffered in the Service of the United Nations (Reparations case).4 By emphasizing the object and purpose of the IGO, this doctrine has provided the legal basis for decision-making that is not expressly set out in the convention establishing the international organization, including decisions at the internal level.5 The institutional set-up of COPs, with their subsidiary bodies and secretariats, is so similar to those of traditional IGOs that this doctrine arguably also applies to the decision-making powers of COPs.6 In the absence of express authority for powers at the internal level, resort may thus be had to the ‘implied powers’ of the COP (for example, to establish subsidiary organs).

The institutional structure of MEAs is hierarchic, with the COP being the supreme body. This formation means that the subsidiary bodies and the secretariat must respect the decisions and instructions adopted by the COP. The organization hosting the secretariat has no power to instruct either the COP or its subsidiary bodies. There may, however, arise some questions concerning the allocation of competence between the COP and the host organization to instruct the secretariat. The point of departure should be that, whereas the officials of the secretariat are employed by the host organization and, as such, are under its instruction, any failure to execute decisions of the COP would amount to a breach of the cooperation arrangement between the COP and the host organization.

The rules of procedure for COPs generally provide for decision-making in internal matters by simple majority. As with IGOs, internal decisions, such as guidance by the COP to subsidiary bodies and the secretariat, should be considered binding unless the MEA or the relevant decision itself specifically indicates that a certain type of decision was intended to be non-binding.

Substantive Decision-Making

COPs, together with their subsidiary bodies and secretariat, have important roles in developing the substantive commitments of MEA parties. The parties will usually meet in the subsidiary organs as well as in the COP, hammering out decisions (p. 882) through negotiations in these permanent forums. This process is far more effective than convening ad hoc diplomatic conferences for defined purposes (see Chapter 32 ‘International Institutions’).

The governing MEA will set out the decision-making powers of the COP in relation to the adoption of new substantive commitments. Virtually all COPs may adopt amendments to their governing MEA that contain new legal obligations. Such amendments will, however, require subsequent ratification by states parties to the MEA in order to create binding obligations for individual parties. Generally, a minimum number of ratifications are required in order for an amendment to enter into force. This type of amendment process is well known from other multilateral treaties, including treaties establishing IGOs.

Several MEAs reflect the framework treaty-protocol approach, whereby the COP is allocated powers to adopt protocols to the MEA that contain new commitments. Examples include the Vienna Convention and its Montreal Protocol, and the UNFCCC with its Kyoto Protocol. In these cases, the normal treaty-making approach has been applied, but use has been made of the institutional machinery established by the MEA to further develop the regime by way of protocols. However, since they are treaties in their own rights, these protocols also require subsequent ratification to bind individual states, and a minimum number of ratifications to enter into force.

Several MEAs provide for their COPs to adopt or amend annexes to the MEA or its protocols, subject to the non-acceptance of these decisions by individual parties. Annexes are often of a ‘technical’ nature, but they may also involve controversial political issues, such as lists of prohibited substances or of protected animals or plants. Relevant examples can be found under the Montreal Protocol, CITES, and the Convention on the Conservation of Migratory Species of Wild Animals (CMS). Although the parties retain the formal right to make a notification of non-acceptance, there may be considerable political pressure not to make such a notification. By requiring action by states in order for them not to become committed rather than to become committed—opting-out, instead of opting-in—the efficiency of law-making is greatly enhanced.

The most advanced form of delegated powers to the COP is found in treaties that authorize it to adopt binding decisions. This approach has the advantage of allowing for a more speedy process and of preventing states from staying outside new commitments, since otherwise they could do so by non-ratification or non-acceptance of amendments or protocols. In such cases of binding COP decision-making, we may truly speak of international legislation. However, it seems that the only MEA-based example of such explicit powers is Article 2.9 of the Montreal Protocol, which allows the adoption of certain new obligations—with binding effect for all parties—by a ‘double majority’ of developing and developed states. Although Article 2.9 has never been used, one cannot exclude the possibility that the mere existence of this option can help achieve solutions based on consensus.

A controversial issue is whether COPs can have law-making powers without the explicit authority to make binding decisions being given in the text of the MEA (see Chapter (p. 883) 20 ‘Treaty Making and Treaty Evolution’ and Chapter 32 ‘International Institutions’). Generally, such powers would encroach on the sovereignty of states and should not easily be presumed. However, Article 17 of the Kyoto Protocol, for example, enables the COP to adopt ‘rules’ relating to the operation of the system for trading in emissions of greenhouse gases. The use of the word ‘rules’ suggests that such measures are intended to be legally binding. This idea is supported by the fact that this article refers to ‘relevant principles, modalities, rules and guidelines,’ indicating that ‘rules’ are different from, for example, non-binding ‘principles’ or ‘guidelines’. Such an interpretation is also supported by substantive considerations. For instance, a party that makes use of the ‘rules’ on emissions trading by buying emission quotas cannot, arguably, be accused of non-compliance with the protocol when it wants to add these quotas to the emission limits of the protocol.7

It may be added that the question of the binding character of decisions by MEA bodies has also arisen in relation to decisions establishing non-compliance procedures as well as to decisions adopted by compliance bodies operating under such procedures (see Chapter 43 ‘Compliance Procedures’). In the climate change regime, for example, the COP decision on compliance, which was adopted as part of the so-called Marrakesh Accords,8 left it up to the COP/MOP9 ‘to decide on the legal form of the procedures and mechanisms on compliance.’ Article 18 of the Kyoto Protocol specifically provides that any ‘procedures and mechanisms’ entailing ‘binding consequences’ shall be adopted by amendment, so unless the COP/MOP adopts an amendment relating to compliance, the Kyoto compliance procedure cannot entail ‘binding consequences’. This provision leaves uncertain the legal status of measures adopted by the Enforcement Branch of the Compliance Committee in response to non-compliance. For example, it may be argued that deduction of emission quotas at a penalty rate as a response to non-compliance with a party’s assigned amount of emissions, which is one of the most significant consequences envisaged, is a ‘binding consequence’ requiring the amendment procedure.10 Absent such an amendment, it remains unclear whether, and with what legal effect, this consequence could be imposed.11

(p. 884) COPs may also engage in interpretation of the provisions of their governing MEAor protocol. To the extent that such interpretation is expressly authorized by the governing MEA or protocol, it appears intended to be of a legally binding character. An example would be Article 10(1) of the Montreal Protocol, which establishes that contributions from developed countries to the protocol’s financial mechanism shall ‘meet all agreed incremental costs’ incurred by developing countries in complying with commitments under the protocol. The MOP was to decide on an ‘indicative list’ of incremental costs, which it did in 1992.12 The fact that there was express authorization of this decision in the Montreal Protocol means that it should be considered to be of a binding nature.

However, interpretation of MEAs may also be undertaken in the absence of such explicit authorization. For example, the Consultative MOP to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter has decided that ‘dumping’ under the convention covers the disposal of waste into or under the seabed from the sea but not from land by tunnelling.13 In such cases, the interpretation could be considered subsequent practice by the parties to a treaty, which, according to Article 31(3)(b) of the Vienna Convention on the Law of Treaties, is an element that may be taken into account in interpreting the treaty. On the other hand, if international institutional law applies, the COP, like an IGO organ, would be regarded as the author of the practice, and not the states parties. In either case, provided the interpretation adopted by the COP is uncontested and not modified by further practice, it should carry considerable weight in interpreting the relevant terms of the MEA. Of course, certain interpretative acts may be so far-reaching that they may better be understood as an attempt to amend the MEA between all parties or to modify the MEA between the parties voting in favour of the decision (Articles 39 and 41 of the Vienna Convention on the Law of Treaties, respectively). Since the MEA will usually contain an amendment procedure requiring subsequent ratification by states parties, such a form of simplified amendment or modification should not easily be presumed.

Finally, the COPs may adopt decisions that concern substantive commitments but are not meant to be of a binding character—‘soft law’ measures. The parties may apply such measures in order to develop their commitments without being ready to undertake new legal obligations. Soft law measures may be effective in themselves, but they may also be the first step in adopting binding regulations. For example, the ban on the export of hazardous waste from Organisation for Economic Co-operation and Development (OECD) countries to non-OECD countries was first adopted by a COP decision under the Basel Convention on the Control of (p. 885) Transboundary Movements of Hazardous Wastes and Their Disposal and subsequently adopted as an amendment to the convention.14 Non-binding decisions may also contribute to developing new customary international law, for example, as expressions of opinio juris in relation to concepts such as ‘sustainable development’ (see Chapter 26 ‘Sustainable Development’) or the ‘precautionary principle’ (see Chapter 25 ‘Precaution’).

The voting procedures for adopting new substantive commitments—be they of a binding or non-binding character—will follow from provisions in the relevant MEA or protocol or from the COP’s rules of procedure. Most MEAs provide that the parties shall try to reach a consensus decision, but, if this proves impossible, they will allow decisions to be taken by a qualified majority. However, some MEAs establish special procedures, such as the requirement of a ‘double majority’ of developed and developing countries in the Montreal Protocol, when exercising the ‘legislative’ functions mentioned earlier. Similar voting arrangements may also be found in subsidiary organs, such as the Enforcement Branch of the Compliance Committee under the Kyoto Protocol, which requires a three-quarters majority and a majority both among developed and developing states for making decisions.

Competence at the External Level

Most of the attention devoted to the powers and functions of MEAs has focused on standard setting, and the implementation of these standards within the scope of the agreement. MEAs, however, may also need to have a ‘foreign policy’—for instance, the relationship to the IGO hosting the secretariat must be arranged; there may be a need for agreement with the state hosting the secretariat and meetings of the parties; implementation of commitments may require financial assistance and capacity building and, hence, arrangements with international financial institutions; and, finally, because some environmental problems are inter-connected, it may be necessary to require cooperation between different MEAs and IGOs involved in the environmental field (see Chapter 32 ‘International Institutions’).

Several questions of international law are relevant when assessing the capacity of the COPs to enter into arrangements at the external level. First, to what extent does the COP have the necessary ‘international legal personality’ to enter into binding agreements under international law? Second, would the subsidiary bodies and the secretariat be bound by these agreements? Third, would these agreements be directly binding, and would they be so for the states parties to the MEA? And, finally, would (p. 886) MEA organs other than the COP have the competence to enter into such agreements? It may be asked whether these questions are merely legal niceties. However, similar questions arise for IGOs, and, to the extent that the organs of MEAs serve comparable functions, these issues must also be addressed with respect to cooperation under MEAs.

MEAs do not contain explicit provisions setting out their treaty-making capacity. This absence of explicit provisions is, however, also common to most IGOs, without preventing them from enjoying such legal capacity. Furthermore, several provisions of MEAs may be taken to provide treaty-making capacity, such as the catch-all phrase in Article 7(2) of the UNFCCC, which states that the COP ‘shall make, within its mandate, the decisions necessary to promote the effective implementation of the Convention’; Article 7(1) authorizing the COP to ‘[s]eek and utilize, where appropriate, the services and cooperation of, and information provided by, competent international organizations and intergovernmental and non-governmental bodies’; and the powers of the secretariat under Article 8(2)(f) to ‘enter, under the overall guidance of the Conference of the Parties, into such administrative and contractual arrangements as may be required for the effective discharge of its functions.’

The main basis for accepting the international legal capacity of IGOs at the external level has, however, been the doctrine of ‘implied powers’ referred to earlier in this chapter on the competence of the MEA organs at the internal level. The reason for establishing COPs, subsidiary bodies, and secretariats rather than formal IGOs was ‘institutional economy’ and not a desire to have less effective institutions. Furthermore, there is a need for MEA organs to act at the external level. Hence, ‘implied powers’ should be equally acceptable as a basis for the treaty-making capacity of MEAs as for that of IGOs.15

It should also be assumed that it is the COP, as the supreme body of the MEA, just as it is the IGO, that has the competence to enter into binding agreements, unless a corresponding competence for the subsidiary bodies or the secretariat follows directly from the MEA or from decisions by the COP. Agreements entered into would be binding for all the MEA bodies, but not for the states parties as such. The states parties must, however, respect such agreements when they act as members of the COP or of other MEA bodies. Similarly, the agreements will not be binding for the organization hosting the secretariat, but the secretariat must respect the agreements as part of their secretarial responsibilities.

If we take a look at the arrangements actually entered into by COPs, we find, first, that the relationship with the organization hosting the secretariat is not based on a (p. 887) binding or non-binding agreement, but rather on parallel decisions of the COP and of the organs of the host organization on their mutual relationship. Thus, the COP of the UNFCCC decided at its first meeting in 1995 (Decision 14/CP.1) that ‘the Convention secretariat shall be institutionally linked to the United Nations, while not being fully integrated in the work programme and management structure of any particular department or programme.’ The UN General Assembly responded by adopting Resolution 50/115 of 20 December 1995, which ‘[e]ndorse[d] the institutional linkage between the Convention secretariat and the United Nations, as advised by the Secretary-General and adopted by the Conference of the Parties.’

In regard to the arrangements made between the MEA organs and the state hosting the secretariat or meetings of such organs, we find agreements, such as on privileges and immunities, which should be considered to be of a legally binding nature. Examples are the 1996 Agreement between the United Nations, the Federal Republic of Germany, and the Secretariat of the UNFCCC and the 1998 Agreement between the Multilateral Fund for the Implementation of the Montreal Protocol and Canada. These agreements were accepted by the COPs, respectively, of the UNFCCC and of the Montreal Protocol.

Separate financial institutions may be set up under MEAs, such as the Multilateral Fund of the Montreal Protocol, or use may be made of existing financial arrangements, such as the Global Environment Facility (GEF). The UNFCCC establishes that a mechanism for the provision of financial resources, including the transfer of technology, is ‘defined’ and that arrangements shall be agreed upon between the COP and the ‘entity or entities’ entrusted with the operation of this mechanism (Article 11(1) and (3)), which is the GEF. The COP of the UNFCCC entered in 1996 into a memorandum of understanding (MOU) with the Council of the GEF. MOUs are generally meant to signify non-binding, rather than binding, arrangements. The non-binding character of the MOU between the COP of the UNFCCC and the GEF is also supported by its wording. On the other hand, nowhere is it suggested that the non-binding status of the arrangement was chosen because the COP lacked competence to enter into binding agreements (see Chapter 41 ‘Technical and Financial Assistance’).

There is an obvious need for arrangements formalizing cooperation between different MEAs in order to facilitate a more comprehensive approach to international environmental problems. The CBD provides that the COP shall contact the executive bodies of other relevant conventions so as to enter into ‘appropriate forms of cooperation’ with them (Article 23(4)(h) ). This provision has formed the basis for memoranda of cooperation with the secretariats of relevant MEAs, such as the Ramsar Convention, the CMS Convention, and CITES. The memorandum of cooperation with the Ramsar Convention’s Secretariat is called an ‘agreement’, and requires a year’s written notice for termination, which could indicate its binding character. On the other hand, the term ‘memorandum of cooperation’ and its wording lead to the conclusion that it is a non-binding arrangement. This conclusion also seems to hold (p. 888) true for the other memoranda of cooperation entered into by the secretariat of the CBD. It should not necessarily be taken to indicate a lack of international legal personality, but rather that internationally binding agreements are not necessary or desirable for such coordination between secretariats.

Conclusions

The establishment of treaty bodies by MEAs may be regarded as part of a more general trend in international law towards the institutionalization of cooperation between states to solve common problems. MEAs are treaties and, as such, the tenets of treaty law are applicable. International institutional law should, however, supplement treaty law when assessing the powers of the treaty bodies.

Although we find some similarities in the institutional set-up of treaties outside the field of international environmental law, it is difficult to find other examples of treaties establishing COPs with a comparable role in standard setting and with subsidiary organs and a permanent secretariat. True enough, human rights treaties and some arms-control treaties provide for their parties to meet from time to time but, typically, only for considering amendments to the treaty and/or electing members of supervisory organs. Supervisory organs of human rights treaties may have some resemblance to those set up under non-compliance procedures in MEAs, but the human rights organs are composed of independent experts and not of representatives from the states parties. The composition of the Compliance Committee of the Kyoto Protocol is, however, comparable in this respect to that of human rights supervisory organs.16

As in most forms of international institutions, there have been disagreements over the powers of COPs, both in substantive decision-making and in relation to compliance control. A more policy-oriented question is how the cooperation between different MEAs should be facilitated and, indeed, to what extent there is a need for a more comprehensive approach to international environmental problems. Possible avenues are more formalized cooperation between relevant MEAs, a strengthened role for UNEP, or even the establishment of a World Environment Organization.17 (p. 889) On the other hand, concern has also been raised, particularly by the United States, about the increasing powers of MEA organs.18 Finally, to the extent that it is acknowledged that more effective international cooperation is needed in order to address urgent environmental challenges, more attention may be directed towards the legitimacy of decision-making under MEAs (see Chapter 30 ‘Legitimacy’), such as the roles of public participation, the scientific basis for decisions, and state consent.19 All of these questions must be carefully considered. Yet, in the meantime, it is fair to say that MEAs with their COPs, subsidiary bodies, and secretariats have generally been successful in providing a non-bureaucratic and dynamic framework for environmental cooperation.(p. 890)

Recommended Reading

  • D. Bodansky, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’ (1999) 93 A.J.I.L. 596.
  • J. Brunnée, ‘COPing with Consent: Law-Making under Multilateral Environmental Agreements’ (2002) 15 Leiden J. Int’l L. 1.
  • S. Charnovitz, ‘A World Environment Organization’ (2002) 27 Colum. J. Envt’l L. 323.
  • R. Churchill and G. Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law’ (2000) 94 A.J.I.L. 623.
  • B. Desai, Institutionalizing International Environmental Law (Ardsley, NY: Transnational Publishers, 2004).
  • E. Hey, ‘Sustainable Development, Normative Development and the Legitimacy of Decision-Making’ (2003) 34 Netherlands Y.B. Int’l L. 3.
  • R. Lefeber, ‘Creative Legal Engineering’ (2000) 13 Leiden J. Int’l L. 1.
  • F.X. Perrez, Cooperative Sovereignty: From Independence to Interdependence in the Structure of International Environmental Law (The Hague: Kluwer Law International, 2000).
  • V. Röben, ‘Institutional Developments under Modern International Environmental Agreements,’ in J.A. Frowein, R. Wolfrum, and C.E. Philipp, eds., Max Planck Yearbook of United Nations Law, 3rd edition (Dordrecht: Martinus Nijhoff, 1999) 363.
  • G. Ulfstein and J. Werksman, ‘The Kyoto Compliance System: Towards Hard Enforcement,’ in O.S. Stokke, J. Hovi, and G. Ulfstein, Implementing the Climate Regime: International Compliance (London: Earthscan, 2005) 39.

Footnotes:

For example, several agreements dealing with marine pollution rely upon the International Maritime Organization (IMO).

For example, international fisheries commissions.

This plenary organ may have different denominations, such as Meeting of the Parties (MOP) or Executive Body.

Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, [1949] I.C.J. Rep. 174. The case concerned the capacity of the United Nations to bring a legal claim. The court considered that ‘the Organization must be deemed to have those powers which, though not expressly provided … are conferred upon it by necessary implication as being essential to the performance of its duties.’

See Effects of Awards of Compensation Made by the U.N. Administrative Tribunal, Advisory Opinion of 13 July 1954, [1954] I.C.J.Rep. 47 at 53.

R.R. Churchill and G. Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law’ (2000) 94 A.J.I.L. 623 at 632–3.

Ibid. at 639. More sceptical about the binding character is J. Brunnée in ‘COPing with Consent: Law-Making under Multilateral Environmental Agreements’ (2002) 15 Leiden J. Int’l L. 1 at 24–6.

The Marrakesh Accords were adopted by the COP of the UN Framework Convention on Climate Change (UNFCCC) in 2001 (Decision 24/CP. 7).

The COP/MOP is the Conference of the Parties to the UNFCCC serving as the Meeting of the Parties to the Kyoto Protocol, but with voting rights only for representatives from the parties to the protocol (see the Kyoto Protocol, Article 13).

10  See G. Ulfstein and J. Werksman,‘The Kyoto Compliance System: Towards Hard Enforcement,’ in O.S. Stokke, J. Hovi, and G. Ulfstein, Implementing the Climate Regime: International Compliance (London: Earthscan, 2005) 39 at 58.

11  The sensitive nature of this issue is illustrated by the fact that, at its first meeting in December 2005, the COP/MOP was unable to reach final agreement on it. It adopted the compliance procedures and mechanisms by simple decision but provided for consideration of an amendment with a view to making a decision by its third meeting in 2007.

12  ‘Indicative List of Categories of Incremental Costs,’ Doc. UNEP/Ozl.Pro.4/15, reprinted in (1992) 3 Y.B. Int’l Envt’l L. 822.

13  London Consultative Meeting of the Parties, Resolution LDC.41 (13) (1990), reprinted in (1990) 6 Int’l Org. & the Law of the Sea: Documentary Yearbook 332. See Churchill and Ulfstein, note 6 above at 641.

14  Decision II/12, Report of the Second COP, Doc.UNEP/CHW.2/30 b (1994) and Decision III/1, Report of the Third COP, Doc.UNEP/CHW.3/35 (1995).

15  The UN Office of Legal Affairs stated in an opinion of 4 November 1993 that the UNFCCC established ‘an international entity/organization with its own separate legal personality, statement of principles, organs and a supportive structure in the form of a Secretariat’ (Articles 3, 7–10). United Nations Office of Legal Affairs, Arrangements for the Implementation of the Provisions of Article 11 of the UN Framework Convention on Climate Change Concerning the Financial Mechanism (4 November 1993) para. 4.

16  Another example is the Compliance Committee under the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (see Chapter 29 ‘Public Participation’).

17  See B.H. Desai, ‘Mapping the Future of International Environmental Governance’ (2000) 13 Y.B. Int’l Envt’l L. 21; B. Desai, Institutionalizing International Environmental Law (Ardsley, NY: Transnational Publishers, 2004); and S. Charnovitz, ‘A World Environment Organization’ (2002) Colum. J. Envt’l L. 323.

18  J. Brunnée, ‘The United States and International Environmental Law: Living with an Elephant’ (2004) 15(4) Env. J. Int’l L. 617 at 636–8.

19  D. Bodansky, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’(1999) 93(3) A.J.I.L. 596 at 624. See also E. Hey, ‘Sustainable Development, Normative Development and the Legitimacy of Decision-Making’ (2003) 34 Netherlands Y.B. Int’l L. 3.