1. Are there legal obstacles for the Parties to the UNECE Convention on Long Range Transboundary Air Pollution (LRTAP) to decide to open participation in its Gothenburg Protocol to developing countries that are not parties to the underlying convention or members of the UNECE region?
2. How might these obstacles be overcome, assuming that there is significant political will to bring developing countries into the Protocol? Are there any relevant international law models to look to?
1. Articles 14 and 15 of the UNECE Convention on Long Range Transboundary Air Pollution state that the Convention shall be open for UNECE MemberStates and UNECE consultative members, and by competent regional economic integration organizations, constituted by sovereign UNECE Members. The Gothenburg Protocol copies the same preconditions for Membership, while adding that States or organizations can only sign up if they are already Parties to the Convention.
In light of Articles 14 and 15 LRTAP it does not appear legally possible that an amended version of the Gothenburg Protocol would ipso facto open up membership to non-UNECE Members. To hold otherwise would go against the customary law on treaties, as well as against the logic underlying the use of framework treaties and protocols. Indeed, the entire aim of coupling framework treaties and supplementary protocols is to create an institutional groundwork (with a Secretariat and a Conference of the Parties) to be supplemented with more detailed rights and obligations which individual Parties to the framework treaty may or may not sign up to. To the best of our knowledge, there do not appear to be any Protocols that have been (successfully) signed by non-Parties to the parent convention. The question nonetheless remains what alternative mechanisms can be devised so as to obtain the same legal result.
2. A first option that seems theoretically possible would be to open up membership, or at least consultative membership, of UNECE to States wishing to join the Convention on Transboundary Air Pollution and its (amended) Protocol. It may be observed in this context, that the United Nations Economic Commission for Europe is less ‘European’ in nature than one might expect. Indeed, this subsidiary body of the UN Economic and Social Council also counts amongst its ranks States such as the United States, 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 amended Gothenburg Protocol, would be politically unrealistic and institutionally unsound.
A second alternative would be to (partially) incorporate the rights and obligations of the (amended) Gothenburg Protocol in a new multilateral Convention, no longer connected to the LRTAP or the UNECE. In this respect, it may be noted that shortly after the adoption in May 1996 of the amended Second Protocol to the Convention on Conventional Weapons (CCW), a considerable number of States adopted the Ottawa Convention which by and large dealt with the same issue. On the other hand, the immediate cause did not consist in any desire to broaden the membership of the amended Second Protocol – seeing as the CCW was in any event open to participation for all States – but rather to impose a more stringent legal regime on the use of antipersonnel mines. To the best of our knowledge, however, there do not appear to be any cases where the content of a Protocol was copied in virtually identical form in a separate multilateral convention. Even if this option cannot theoretically be excluded, it appears to be unattractive for reasons of legal intransparency and unnecessary duplication of efforts (viz. the creation of a separate Secretariat, Conference of the Parties, etcetera).
A third option builds on the provisions of the Vienna Convention on the Law of Treaties relating to the rights and obligations of third parties (Art. 34-37). These provisions a.o. stipulate that a treaty norm shall be regarded as binding upon a third State if the Parties intended this and if the third State expressly accepted the obligation in writing. In accordance herewith, a Treaty such as the LRTAP could promulgate that certain obligations will be binding upon non-UNECE States that have made an explicit declaration to this end. Such a provision could in theory also be included in a Protocol to a framework treaty. A special example hereof can be found in Article 96 of the First Additional Protocol (1977) to the 1949 Geneva Conventions, which deals with the possibility of authorities representing national liberation movements (i.e., non-States) to assume rights and obligations under the Protocol.1 In the present context, 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.
In all, the fourth – and most viable – option consists 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 InternationalLakes amended Articles 25 and 26 of that Convention. Article 25(3) of the amended text (not yet entered into force) 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. In its instrument of accession, such a State shall make a declaration stating that approval for its accession to the Convention has been obtained from the Meeting of the Parties and shall specify the date on which approval was received.” 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.