LRTAP and extending MEAs to non-party states – Part I

Legal assistance paper

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Date produced: 02/12/2010

What are examples of other regional agreements (environmental or other) that have used formal and informal (i.e., MOUs, declarations of intent, etc.) mechanisms to establish the agreement as a platform for enhanced cooperation with nations outside the region, and the key drivers and mechanisms employed?

Summary:

Memoranda of understanding (‘MOU’s) are a common tool to foster exchanges of information, practical and technical cooperation, or to organise a common forum. They may be concluded between States, but may also be concluded between International Organisations (‘IO’s), or between IOs and States, or IOs and the private sector.

The content of these MOUs attests to a wide variety of issues that may be addressed and serve as inspiration in respect of the broad range of options for cooperation.

However, because of the contested legal status of MOUs, they are not appropriate tools to create binding commitments on the part of non-UNECE States or IOs.

Advice:

The final report from the Ad-Hoc Expert Group on Black Carbon to LRTAP’s Executive Body contains various suggestions as to establishing the 1999 Gothenburg Protocol as a platform for enhanced cooperation with nations outside the region. The report mentions the possibility of making a statement encouraging actions outside the UNECE region, including capacity development for BC emissions monitoring and reporting, etc (§§72-73). In addition, the report states that the Executive Body (EB) could consider entering into memoranda of understanding (MOU) with non-UNECE States that are significant sources of BC emissions transported to the UNECE region and key sensitive regions (§ 74). The EB could also consider “developing mechanisms such that certain obligations – e.g., to cooperate in developing BC monitoring and reporting capacity, institutions and infrastructure – would be binding upon select non-UNECE States that make an explicit declaration to this end. Alternatively, such a provision could be included into the Gothenburg Protocol” (§ 75). Finally, the report suggests considering exchanges with interested nations, such as those in the Association of Southeast Asian Nations’ (ASEAN) Agreement on Transboundary Haze Pollution and the Male Declaration (§76), and proposes urging the International Maritime Organisation (IMO) to enact requirements to reduces emissions of BC from international shipping (§ 77).

When assessing these suggestions from a legal point of view, the basic point of departure is that treaties (including ‘Protocols’) only generate binding obligations for State Parties: a treaty does not create either obligations or rights for a third State without its consent (Article 34 of the Vienna Convention on the Law of Treaties (VCLT)). A treaty provision can only give rise to binding obligations on the part of a third State if that State expressly accepts the obligation in writing (Article 35 VCLT). By contrast, when a treaty provision provides for rights for third States, their assent shall be presumed so long as the contrary is not indicated (Article 36 VCLT).

If we apply these principles to the present case, it is clear that the EB is free to enact statements or declarations calling upon non-UNECE States or international organisations (e.g., ASEAN, IMO or, for instance, the Economic and Social Commission for Asia and the Pacific (ESCAP – another ECOSOC regional commission) to develop certain instruments to monitor or reduce emissions of BC or to assume concrete commitments. Such statements/declarations will, however, be of a strictly political nature and cannot give rise to legal obligations on the part of third States or international organisations.

The EB could also engage in practical cooperation with non-UNECE States or international organisations (IOs) by concluding MOUs. MOUs are a common tool to foster exchange of information, practical and technical cooperation, or to organise a common forum (e.g., through periodic meetings). They may be concluded between States, but may also be concluded between IOs, or between IOs and States, or even between IOs and the private sector. We note, for example, that UNECE has indeed concluded MOUs with:

  • International and regional organisations, such as the Secretariat of the Convention on Biodiversity, the Organisation for Security and Cooperation in Europe, the Economic Cooperation Organisation (i.e., a regional organisation comprising several central-Asian States), and the Eurasian Development Bank;
  • individual States, such as Austria; and
  • the private sector, e.g., with the European Association of Companies with Concessions for motorway, bridge and tunnel tolls (ASECAP) and the International Union of Railways (UIC).

The content of these MOUs attests to the wide variety of issues that may be addressed and serve as inspiration in respect of the broad range of options for cooperation.

On the other hand, if MOUs are useful tools to organise cooperation with organisations and States beyond the UNECE region, because of their contested legal status, they are admittedly not appropriate tools to create binding commitments on the part of non-UNECE States or IOs.

Indeed, if the intention was to make the commitments laid down in the Gothenburg Protocol binding on Asian States (non-UNECE parties), we refer to the following options:

– (1) Granting interested Asian States membership, or at least consultative membership, of UNECE, so that they may join the Convention on Long-Range Transboundary Air Pollution, as well as (subsequently) the Gothenburg Protocol. It may be noted in this respect that UNECE counts amongst its ranks States such as the US, Canada, Israel, Turkmenistan and Uzbekistan. At the same time, for a variety of reasons, it is clear that a broad expansion of UNECE Membership, with the sole aim of enabling open membership of the Gothenburg Protocol, would be politically unrealistic and institutionally unsound.

– (2) Incorporating (part of) the rights and obligations of the Gothenburg Protocol in a separate multilateral Convention, open to all States. However, this option again appears unattractive a.o. for reasons of lack of legal transparency and unnecessary duplication of efforts (viz. the creation of a separate Secretariat, Conference of the Parties, etcetera).

– (3) A third option would consist in the inclusion in the Gothenburg Protocol of some form of opt-in formula, providing that certain substantive obligations will be binding upon non-UNECE States that have made an explicit declaration to this end. This possibility, which seems to figure among the suggestions listed by the Black Carbon Expert Group, would allow for non-UNECE parties to assume binding commitments in accordance with Articles 34-37 VCLT. The downside of using this option would be that non-UNECE Members submitting a declaration would not be fully integrated in the Convention’s institutional framework. This might in turn give rise to certain problems in relation to amendment, monitoring, enforcement, etc.

– (4) The fourth, and apparently most viable, option would consist in a modification of the original LRTAP Convention so as to allow non-UNECE Members to become Parties to both the Convention and the subsequent Protocols. This mechanism has been used on various occasions in the UNECE context. Thus, in 2003, the Parties to the Convention on the Protection and Use of Transboundary Watercourses and International Lakes amended Articles 25 and 26 of that Convention. Article 25(3) of the amended text states that “any other State (…) that is a Member of the United Nations may accede to the Convention upon approval by the Meeting of the Parties. (…).” Two years earlier, a similar provision was incorporated in the amended version of the 1991 Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention, Art. 17(3)). The 2003 Protocol on Strategic Environmental Assessment to the Espoo Convention holds the same (Art. 23(3)). Other examples are the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Art. 19(3)) and its 2003 Protocol on Pollutant Release and Transfer Registers (Art. 24 and 26(2)). There do not appear to be any legal obstacles why this option could not be applied in the present context.