A-21: INTERNATIONAL LEGAL INSTRUMENTS
Distr.
GENERAL
A/CONF.151/26 (Vol. III)
14 August 1992
ORIGINAL: ENGLISH
REPORT OF THE UNITED NATIONS CONFERENCE ON
ENVIRONMENT AND DEVELOPMENT
(Rio de Janeiro, 3-14 June 1992)
Chapter 39
INTERNATIONAL LEGAL INSTRUMENTS AND MECHANISMS
Basis for action
39.1. The recognition that the following vital aspects of the universal,
multilateral and bilateral treaty-making process should be taken into
account:
(a) The further development of international law on sustainable
development, giving special attention to the delicate balance between
environmental and developmental concerns;
(b) The need to clarify and strengthen the relationship between
existing international instruments or agreements in the field of
environment and relevant social and economic agreements or instruments,
taking into account the special needs of developing countries;
(c) At the global level, the essential importance of the
participation in and the contribution of all countries, including the
developing countries, to treaty making in the field of international law on
sustainable development. Many of the existing international legal
instruments and agreements in the field of environment have been developed
without adequate participation and contribution of developing countries,
and thus may require review in order to reflect the concerns and interests
of developing countries and to ensure a balanced governance of such
instruments and agreements;
(d) Developing countries should also be provided with technical
assistance in their attempts to enhance their national legislative
capabilities in the field of environmental law;
(e) Future projects for the progressive development and codification
of international law on sustainable development should take into account
the ongoing work of the International Law Commission;
(f) Any negotiations for the progressive development and
codification of international law concerning sustainable development
should, in general, be conducted on a universal basis, taking into account
special circumstances in the various regions.
Objectives
39.2. The overall objective of the review and development of international
environmental law should be to evaluate and to promote the efficacy of that
law and to promote the integration of environment and development policies
through effective international agreements or instruments taking into
account both universal principles and the particular and differentiated
needs and concerns of all countries.
39.3. Specific objectives are:
(a) To identify and address difficulties which prevent some States,
in particular developing countries, from participating in or duly
implementing international agreements or instruments and, where
appropriate, to review and revise them with the purposes of integrating
environmental and developmental concerns and laying down a sound basis for
the implementation of these agreements or instruments;
(b) To set priorities for future law-making on sustainable
development at the global, regional or subregional level, with a view to
enhancing the efficacy of international law in this field through, in
particular, the integration of environmental and developmental concerns;
(c) To promote and support the effective participation of all
countries concerned, in particular developing countries, in the
negotiation, implementation, review and governance of international
agreements or instruments, including appropriate provision of technical and
financial assistance and other available mechanisms for this purpose, as
well as the use of differential obligations where appropriate;
(d) To promote, through the gradual development of universally and
multilaterally negotiated agreements or instruments, international
standards for the protection of the environment that take into account the
different situations and capabilities of countries. States recognize that
environmental policies should deal with the root causes of environmental
degradation, thus preventing environmental measures from resulting in
unnecessary restrictions to trade. Trade policy measures for environmental
purposes should not constitute a means of arbitrary or unjustifiable
discrimination or a disguised restriction on international trade.
Unilateral actions to deal with environmental challenges outside the
jurisdiction of the importing country should be avoided. Environmental
measures addressing international environmental problems should, as far as
possible, be based on an international consensus. Domestic measures
targeted to achieve certain environmental objectives may need trade
measures to render them effective. Should trade policy measures be found
necessary for the enforcement of environmental policies, certain principles
and rules should apply. These could include, inter alia, the principle of
non-discrimination; the principle that the trade measure chosen should be
the least trade-restrictive necessary to achieve the objectives; an
obligation to ensure transparency in the use of trade measures related to
the environment and to provide adequate notification of national
regulations; and the need to give consideration to the special
conditions and development requirements of developing countries as they
move towards internationally agreed environmental objectives;
(e) To ensure the effective, full and prompt implementation of
legally binding instruments and to facilitate timely review and adjustment
of agreements or instruments by the parties concerned, taking into account
the special needs and concerns of all countries, in particular developing
countries;
(f) To improve the effectiveness of institutions, mechanisms and
procedures for the administration of agreements and instruments;
(g) To identify and prevent actual or potential conflicts,
particularly between environmental and social/economic agreements or
instruments, with a view to ensuring that such agreements or instruments
are consistent. Where conflicts arise they should be appropriately
resolved;
(h) To study and consider the broadening and strengthening of the
capacity of mechanisms, inter alia, in the United Nations system, to
facilitate, where appropriate and agreed to by the parties concerned, the
identification, avoidance and settlement of international disputes in the
field of sustainable development, duly taking into account existing
bilateral and multilateral agreements for the settlement of such disputes.
Activities
39.4. Activities and means of implementation should be considered in the
light of the above basis for action and objectives, without prejudice to
the right of every State to put forward suggestions in this regard in the
General Assembly. These suggestions could be reproduced in a separate
compilation on sustainable development.
A. Review, assessment and fields of action in international
law for sustainable development
39.5. While ensuring the effective participation of all countries
concerned, Parties should at periodic intervals review and assess both the
past performance and effectiveness of existing international agreements or
instruments as well as the priorities for future law making on sustainable
development. This may include an examination of the feasibility of
elaborating general rights and obligations of States, as appropriate, in
the field of sustainable development, as provided by General Assembly
resolution 44/228. In certain cases, attention should be given to the
possibility of taking into account varying circumstances through
differential obligations or gradual application. As an option for carrying
out this task, earlier UNEP practice may be followed whereby legal experts
designated by Governments could meet at suitable intervals, to be decided
later, with a broader environmental and developmental perspective.
39.6. Measures in accordance with international law should be considered
to address, in times of armed conflict, large-scale destruction of the
environment that cannot be justified under international law. The General
Assembly and its Sixth Committee are the appropriate forums to deal with
this subject. The specific competence and role of the International
Committee of the Red Cross should be taken into account.
39.7. In view of the vital necessity of ensuring safe and environmentally
sound nuclear power, and in order to strengthen international cooperation
in this field, efforts should be made to conclude the ongoing negotiations
for a nuclear safety convention in the framework of the International
Atomic Energy Agency.
B. Implementation mechanisms
39.8. The parties to international agreements should consider procedures
and mechanisms to promote and review their effective, full and prompt
implementation. To that effect, States could, inter alia:
(a) Establish efficient and practical reporting systems on the
effective, full and prompt implementation of international legal
instruments;
(b) Consider appropriate ways in which relevant international
bodies, such as UNEP, might contribute towards the further development of
such mechanisms.
C. Effective participation in international law making
39.9. In all these activities and others that may be pursued in the
future, based on the above basis for action and objectives, the effective
participation of all countries, in particular developing countries, should
be ensured through appropriate provision of technical assistance and/or
financial assistance. Developing countries should be given "headstart"
support not only in their national efforts to implement international
agreements or instruments, but also to participate effectively in the
negotiation of new or revised agreements or instruments and in the actual
international operation of such agreements or instruments. Support should
include assistance in building up expertise in international law
particularly in relation to sustainable development, and in assuring access
to the necessary reference information and scientific/technical expertise.
D. Disputes in the field of sustainable development
39.10. In the area of avoidance and settlement of disputes, States should
further study and consider methods to broaden and make more effective the
range of techniques available at present, taking into account, among
others, relevant experience under existing international agreements,
instruments or institutions and, where appropriate, their implementing
mechanisms such as modalities for dispute avoidance and settlement. This
may include mechanisms and procedures for the exchange of data and
information, notification and consultation regarding situations that might
lead to disputes with other States in the field of sustainable development
and for effective peaceful means of dispute settlement in accordance with
the Charter of the United Nations, including, where appropriate, recourse
to the International Court of Justice, and their inclusion in treaties
relating to sustainable development.
END OF CHAPTER 39
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