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Title: Environmental Justice Author: Christoph Last modified by: christi Created Date: 7/10/2007 12:18:04 PM Document presentation format: On-screen Show (4:3) – PowerPoint PPT presentation

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Title: Form


1
  • Form Characteristics of the 2015 agreement

2
Overview
  • Form of agreement
  • - formal outcomes
  • - form v. substance
  • - mixed bags
  • - new agreement
  • Built in flexibility durability
  • - possible entry points
  • - content
  • - design features techniques

3
COP Decision 1/CP.17
  • 2. Also decides to launch a process to develop
    a protocol, another legal instrument or an agreed
    outcome with legal force under the Convention
    applicable to all Parties, through a subsidiary
    body under the Convention hereby established and
    to be known as the Ad Hoc Working Group on the
    Durban Platform for Enhanced Action.

4
COP Decision 1/CP.17 para.2
  • a protocol,
  • another
  • - legal
  • - instrument or
  • an agreed outcome
  • - with legal force
  • - under the Convention/
  • under the Convention
  • applicable to all Parties

5
Formal outcome

New international treaty (Protocol, Implementation Agreement, Covenant etc) Unilaterally binding declarations Amendments of Convention and/or Protocol Mix bags of outcomes Political agreement (e.g. on national legislation) COP decisions None
6
Mixed bags of formal outcomes
  • Unilateral declarations on mitigation ambition
    and political agreement on finance
  • COP decisions on adaptation, technology transfer
    etc. and treaty on mitigation targets and/or
    finance
  • Schedules containing binding/non binding country
    specific outcomes/activities on mitigation,
    adaptation, finance etc
  • ...

7
International treaty
  • Supports legal certainty and rule of law amongst
    nations
  • Subject to more thorough negotiation and
    preparation process political buy-in resulting
    in better implementation and compliance
  • Accountability to civil society
  • The more legal force the better
  • No guarantee for success
  • Form and content

8
Legally binding
  • Art. 8 CBD Each Contracting Party shall, as far
    as possible and as appropriate (a) Establish a
    system of protected areas or areas where special
    measures need to be taken to conserve biological
    diversity.
  • Declarations by the US Secretary of State in
    1978 The United States will not use nuclear
    weapons against any non-nuclearweapon State
    party to the Treaty on the Non-Proliferation of
    Nuclear Weapons or any comparable internationally
    binding commitment not to acquire nuclear
    explosive devices, except in the case of an
    attack on the United States, its territories or
    armed forces, or its allies...
  • Art.94 para.1 UNCLOS Every State shall
    effectively exercise its jurisdiction and control
    in administrative, technical and social matters
    over ships flying its flag.

9
Framework v prescriptive
  • Principles
  • Domestic activities
  • Self determined
  • Reporting/ Assessment
  • Meeting of parties
  • Negotiation, mediation
  • Easy quick large
  • Rights obligations
  • Specific outcomes
  • Rules regulations
  • Compliance/ Enforcement
  • Processes institutions
  • Binding dispute resolution
  • Tough slow small

10
Design options
  • Design features of multilateral treaty that
    would make it durable but flexible enough to
    respond to changing circumstances?

11
New agreement
  • Preamble, definitions
  • Mitigation, Adaptation
  • Finance, technology transfer, capacity-building
  • Differentiation amongst parties
  • Transparency, implementation, compliance
  • Institutional and operational framework
  • Final provisions on adoption, amendment and entry
    into force

12
Substance
  • Principles v. rights and obligations
  • Differentiation depending on GDP v. Annexes
  • Outcome v. Activities (prescriptive targets and
    goals v. self set goals and facilitating domestic
    legislation)
  • Language if adequate, appropriate, in
    accordance with national circumstances
  • Assessment v. compliance
  • ...

13
Form process
  • Opt in and out of commitments arrangements
  • Amending rules light and easy
  • Allowing parties to do what they can/want bottom
    up
  • Harmonisation of different efforts
  • Relationship with other legal instruments
  • Relationship with external parties
  • Others e.g. no withdrawal

14
Opt in/out I
  • The States Parties to the present Statute may at
    any time declare that they recognise... , in
    relation to any other State accepting the same
    obligation, the jurisdiction of the Court...
    (Art.36, para.2 ICJ Statute).

15
Opt in/out II - reservation
  • Allowed reservation - wide/narrow
  • Any State may, when signing this Convention...,
    make a reservation in respect of any particular
    provision of the Convention to the extent that
    any law then in force in its territory is not in
    conformity with the provision. Reservations of a
    general character shall not be permitted under
    this Article. (Art.57 para.1 ECHR)

16
Opt in/out III instruments
  • Additional legal instruments
  • The Member States of the Council of Europe,
    signatory to this Protocol to the Convention for
    the Protection of Human Rights and Fundamental
    Freedoms, ...,
  • Considering that the evolution that has occurred
    in several member States of the Council of Europe
    expresses a general tendency in favour of
    abolition of the death penalty
  • Have agreed as follows... (Protocol No. 6 to
    the Convention for the Protection of Human Rights
    and Fundamental Freedoms concerning the Abolition
    of the Death Penalty)

17
Amendment - tacit
  • An amendment may enter into force after being,
    for example, accepted by two thirds of the
    Parties or adopted by a three-fourth majority.
    Under the tacit acceptance procedure an
    amendment enters into force at a particular time
    unless before that date, objections to the
    amendment are received from a specified number of
    Parties.
  • Under the 1974 International Convention for the
    Safety of Life at Sea (SOLAS) an amendment to
    most of the Annexes is deemed to have been
    accepted at the end of two years from the date on
    which it is communicated to Contracting
    Governments... unless the amendment is objected
    to by more than one third of Contracting
    Governments, or Contracting Governments owning
    not less than 50 per cent of the world's gross
    merchant tonnage.

18
Amendment - simplified
  • Choice between normal and simplified process
  • Article 313 UNCLOS - Amendment by simplified
    procedure
  • 1. A State Party may, by written communication
    addressed to the Secretary-General of the United
    Nations, propose an amendment to this Convention,
    ..., to be adopted by the simplified procedure
    set forth in this article without convening a
    conference. The Secretary General shall circulate
    the communication to all States Parties.
  • 2. If, within a period of 12 months from the
    date of the circulation of the communication, a
    State Party objects to the proposed amendment or
    to the proposal for its adoption by the
    simplified procedure, the amendment shall be
    considered rejected. The Secretary-General shall
    immediately notify all States Parties
    accordingly.
  • 3. If, 12 months from the date of the
    circulation of the communication no State Party
    has objected to the proposed amendment or to the
    proposal for its adoption by the simplified
    procedure, the proposed amendment shall be
    considered adopted. ....

19
Amendment - adjustment
  • Allowing for minor changes to technical
    information, usually contained in an annexes
  • Article 3, paragraph 1 quater Kyoto Protocol
  • An adjustment proposed by a Party included in
    Annex I to increase the ambition of its
    quantified emission limitation and reduction
    commitment in accordance with Article 3,
    paragraph 1 ter, above shall be considered
    adopted... unless more than three-fourths of the
    Parties present and voting object to its
    adoption.

20
Bottom up
  • Legalisation of pledge and review (Cancun
    Agreements)
  • Country driven or CSR?
  • WTO schedules on market access
  • - Goods binding commitments on tariffs
  • - Agriculture combinations of tariffs and
    quotas, export subsidies and domestic support
  • - Services commitments on access of foreign
    service providers in specific sectors

21
Schedule of commitment
22
1972 UNESCO World Heritage Convention
  • Article 3
  • It is for each State Party to this Convention to
    identify and delineate the different properties
    situated on its territory mentioned in Articles 1
    and 2 above cultural and natural heritage.
  • Article 5
  • To ensure that effective and active measures are
    taken for the protection, conservation and
    presentation of the cultural and natural heritage
    situated on its territory, each State Party to
    this Convention shall endeavour, in so far as
    possible, and as appropriate for each country
  • (a) to adopt a general policy which aims to give
    the cultural and natural heritage a function in
    the life of the community and to integrate the
    protection of that heritage into comprehensive
    planning programmes...

23
1966 International Conventionon Load Lines
  • Article 3 - General Provisions
  • No ship to which the present Convention applies
    shall proceed to sea on an international voyage
    after the date on which the present Convention
    comes into force unless it has been surveyed,
    marked and provided with an International Load
    Line Certificate or, where appropriate, an
    International Load Line Exemption Certificate....
  • Article 4 - Application
  • ...
  • (3) The Regulations contained in Annex I are
    specifically applicable to new ships.
  • Existing ships which do not fully comply with the
    requirements of the Regulations contained in
    Annex I or any part thereof shall meet at least
    such lesser related requirements as the
    Administration applied to ships on international
    voyages prior to the coming into force of the
    present Convention ...
  • Article 26 - Communication of Information
  • (1) The Contracting Governments undertake to
    communicate to and deposit with the Organization
  • (a) a sufficient number of specimens of their
    certificates issued under the provisions of the
    present Convention for circulation to the
    Contracting Governments
  • (b) the text of the laws, decrees, orders,
    regulations and other instruments which shall
    have been promulgated on the various matters
    within the scope of the present Convention
    and....

24
Harmonisation
  • Harmonisation (active pursuit) v natural
    convergence through practice
  • Creating new and/or amending existing legal
    instruments (system of survey and certification
    under IMO SOLAS, Load Lines and MARPOL 73/78)
  • Minimum standards (for new aircrafts, vessels
    etc)
  • Soft law guidance, models, blueprints, best
    practice etc
  • Soft to hard law (human rights, corporate
    governance)
  • International coordination institutions, bodies,
    standing negotiations
  • Participation in rule development
  • Improving and establishing consistent conditions
    for the operation of rules and regulations
    institution building to enabling environments

25
Relationship with other instruments
  • Lex posterior derogat priori - a later rule
    repeals an earlier one and a specialized rule
    takes precedence over a general rule (lex
    specialis)
  • Art.103 UN Charter In the event of a conflict
    between the obligation of the Members of the
    United Nations under the present Charter and
    their obligations under any other international
    agreement, their obligations under the present
    Charter prevail.
  • Art. 22 CBD (Relationship with other
    international conventions)
  • 1. The provisions of this Convention shall not
    affect the rights and obligations of any
    Contracting Party deriving from any existing
    international agreement, except where the
    exercise of those rights and obligations would
    cause a serious damage or threat to biological
    diversity.
  • 2. Contracting Parties shall implement this
    convention with respect to the marine environment
    consistently with the rights and obligations of
    States under the Law of the sea.

26
Third party provisions
  • Need for third party to accept obligations or
    rights
  • 2009 Agreement on Port State Measures to Prevent,
    Deter and Eliminate Illegal, Unreported and
    Unregulated Fishing, Article 23 Non Parties to
    this Agreement
  • 1. Parties shall encourage non-Parties to this
    Agreement to become Parties thereto and/or to
    adopt laws and regulations and implement measures
    consistent with its provisions.
  • 2. Parties shall take fair, non-discriminatory
    and transparent measures consistent with this
    Agreement and other applicable international law
    to deter the activities of non- Parties which
    undermine the effective implementation of this
    Agreement.

27
Minimata Convention on Mercury
  • Article 3
  • Each Party shall not allow the export of mercury
    except...
  • (b) To a non-Party that has provided the
    exporting Party with its written consent,
    including certification demonstrating that
  • (i) The non-Party has measures in place to
    ensure the protection of human health and the
    environment and to ensure its compliance with the
    provisions of Articles 10 and 11 and
  • (ii) Such mercury will be used only for a use
    allowed to a Party under this Convention or for
    environmentally sound interim storage as set out
    in Article 10.
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