Application of conventions concerning the environment

21 April 1994

Doc. 7076

1403-19/4/94-8-E

REPORT

on the application of conventions

concerning the environment

(Rapporteur: Mr HARDY,

United Kingdom, Socialist Group)

Summary

All parties agree that the existing conventions for environment protection are tools which, although perfectible in certain cases, can make an efficient contribution to protecting the environment at both regional and international level.

Unfortunately, in spite of the fact that the international community seems to have accepted that there is an urgent need for intervention in order to protect the Earth, experience shows that the undertakings entered into by the states which have signed and ratified these conventions do not always result in tangible action being taken which would enable these instruments to be applied in optimal fashion.

While emphasising the difficulties of application common to all conventions, the Assembly wishes to draw particular attention to the case of the Council of Europe Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention). This convention could play an important role at pan-European level vis-à-vis the Convention on Biodiversity concluded at Rio de Janeiro, but there is a danger of its application being negatively affected as a result of the limited financial resources available to its Standing Committee.

Accordingly, the Assembly calls on the Committee of Ministers to boost the allocation of resources to the Standing Committee of the Bern Convention with a view to ensuring that this convention is applied in optimal fashion.

I. Draft recommendation

1. The global nature of the environmental problems confronting us requires urgent and concerted international action giving practical form to the oft-expressed political will to find solutions to the problems endangering the Earth.

2. Among the array of instruments available to the international community, conventions — universal and regional alike — are essential to such action.

3. The Assembly is convinced that the existing conventions allow the realisation of a satisfactory environment protection policy without recourse to new instruments.

4. In this connection, it stresses the particular importance of the Conventions on Climate Change and Biological Diversity opened to signature at the Earth Summit in Rio de Janeiro in June 1992 and urges member states to set up and achieve targets to ensure that there is no greater level of pollution in the year 2000 than there was in 1990, with namely a further reduction to 60% of CO₂ emissions to be achieved as soon as possible.

5. Unfortunately, it has to be said that the commitments undertaken at the signing of conventions are not always followed by concrete action which would permit these undertakings to be enforced. Furthermore, it is a pity that the number and importance of the reservations often made by signatory states drain those undertakings of their substance.

6. The effectiveness of conventions is, moreover, often severely jeopardised by the weakness or lack of any supervision and enforcement machinery.

7. Accordingly the Assembly is convinced of the need to give priority to measures which would enhance the application of the existing conventions and exploit their full potential.

8. The Council of Europe's Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention) is unanimously held to be an effective instrument. It can also be an appropriate tool for applying at pan-European level the Rio Convention on Biological Diversity.

9. It is unfortunate that in the present context — when it would be advisable to reinforce the means made available for the purposes of the Bern Convention in order to ensure its optimum application — its Standing Committee should be compelled to consider reducing its activities because of the limited financial and secretariat resources at its disposal.

10. The Assembly deplores this, especially as it is convinced that a situation of this kind can only jeopardise the effective protection of our environment and weaken — instead of strengthening — the role which the Council of Europe can play in the protection of natural resources.

11. The Assembly therefore recommends that the Committee of Ministers:

i. give priority to improving the application of Council of Europe conventions;

ii. increase the budgetary and human resources allocated to the application of the Bern Convention so as to enable the convention's Standing Committee to fulfil its role properly in the protection of the environment, in particular with regard to the Rio Convention on Biological Diversity;

iii. invite member states to take all legislative, administrative and technical measures to give effect to the undertakings they have themselves entered into.

II. Explanatory memorandum

presented by Mr HARDY

Contents

Page

Introduction 4

1. The principal conventions concerning the

environment 5

a. European and/or international conventions

(excluding Council of Europe conventions) 5

b. Council of Europe conventions in the

environment field 8

2. The functioning of the conventions 9

Conclusions 13

Introduction

In the environment field many regional, European and international conventions have been concluded to give a binding legislative framework to the political will of countries determined to take action to try and overcome the drawbacks or neutralise the harmful consequences of activities associated with the development of our societies.

It is particularly since the Conference on the Human Environment in Stockholm in 1972 that international environment protection law has developed considerably and that in several organisations, including the Council of Europe, conventions, agreements and other regulatory instruments have been drawn up.

These texts are often the result of extremely lengthy and often difficult negotiations on which a consensus has been achieved, sometimes at the cost of concessions on the scope of the instrument.

When we consider the problem of the protection of our environment against the increasingly serious and often irreversible threats to and assaults on the Earth, the conclusion generally reached is that we have a fairly comprehensive armoury of legislation and regulations but that the problem is that most of these tools are not used to full effect.

It is thus increasingly deemed necessary to give priority to using every means possible to improve the enforcement and monitoring of the existing conventions rather than to devising new instruments.

It is for this purpose that the Assembly wished to draw the attention of member states and the Committee of Ministers of the Council of Europe to this particular aspect of the implementation of concerted global action to protect the environment.

I propose to review the principal existing conventions concerning the environment, examine the difficulties in the way of their operation and make proposals to the member governments and the Committee of Ministers of the Council of Europe for improving their enforcement.

1. The principal conventions concerning the environment

a. European and/or international conventions (excluding Council of Europe conventions)

Protection of the sea

I said earlier that a good many conventions have been drawn up over the past twenty years in the wake of the Stockholm Conference on the Human Environment.

In fact, conventions for the protection of the seas and oceans are an exception, since they go back much earlier than the Stockholm Conference: the dangers of, for example, oil pollution by discharges from tankers were realised in the 1950s.

As a result, 1954 saw the opening to signature of the London Convention for the Prevention of Pollution of the Sea by Oil. Subsequently, following the first major accident (the Torrey Canyon disaster in 1967), the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties was signed in Brussels in 1969.

Thereafter, as part of the follow-up to the Stockholm Conference, a systematic approach was adopted at regional level, which resulted in the conclusion of Conventions for the protection of the Mediterranean, the North Sea and the Baltic Sea.

In the ensuing period two important universal instruments were drawn up: the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter and the International Convention for the Prevention of Pollution from Ships (MARPOL).

The above-named conventions are not the only ones in this field. Other instruments have been adopted. As the purpose of this report is not, however, to give an exhaustive list, I propose to mention only one more very important text: the United Nations Convention on the Law of the Sea. This convention, opened to signature in 1982, should enter into force this year and will then be the only example of a worldwide instrument designed to protect the marine environment in a broad sense.

Protection of the atmosphere

The aim of protecting the atmosphere typifies the current need to cope with global environmental hazards which threaten the Earth as a whole and must be combated on a worldwide basis.

Now when we talk about the atmosphere in the context of environmental protection, we distinguish three main problems: transboundary air pollution; depletion of the ozone layer; climate change. For these three problems we have adequate legislative instruments applicable in a good many countries.

The Convention on Long-Range Transboundary Air Pollution was drawn up by the United Nations Economic Commission for Europe (ECE). It was opened to signature in 1979 and entered into force in 1983; it has been ratified by thirty-two countries and by the European Union.

This convention is the first binding international instrument to tackle this kind of problem multilaterally. Its application is based on the parties' compliance with uniform rates of reduction in emissions or even on the possibility of the complete cessation of emissions.

Another typical global environmental hazard is the depletion of the ozone layer. It has now been established that this depletion is largely caused by chlorofluorocarbons (CFCs), halons and other substances, some of which (notably CFCs) are also gases which are instrumental in the greenhouse effect and hence in global warming.

The growing concern of many states and the determination to act to protect the ozone layer resulted in the Convention for the Protection of the Ozone Layer (Vienna, 1985) supplemented by the Montreal Protocol (1987).

The importance of this Protocol lies in the fact that it lays down precise quantitative limitations on the use of CFCs and halons and details:

—th e substances which it is important to control;—

—a timetable for reducing the consumption or manufacture of those substances;—

—li mitations on trade with states which are not parties to the convention;—

—sp ecial transitional arrangements for the developing countries.So

Some countries which felt that the problem was so urgent that the measures laid down in the Montreal Protocol were inadequate adopted amendments thereto in London in 1990. Although not yet in force, these amendments are designed to render the measures approved in Vienna and Montreal more stringent.

Furthermore, as regards the developing countries, it is worth noting the decision made in London to create a multilateral fund for the purposes of financial and technical co-operation with them.

Climate change is perhaps the world's major current concern. Moreover, although its impact is harmful in all parts of the world, some countries are nonetheless more threatened than others and may see their economic development and, in some cases, their survival endangered (for example the small island countries directly threatened by rising sea levels caused by the melting of the polar ice caps).

Climate change is a much more complex problem than the depletion of the ozone layer, since economic development is very much more dependent on fossil fuels than on CFCs. Energy efficiency, the use of alternative sources of energy and forest conservation and reafforestation programmes seem to be the only solutions. Unfortunately, they require heavy financial and technological investment.

It was thus that, after lengthy negotiations, the Framework Convention on Climate Change was opened to signature at the Earth Summit in Rio de Janeiro. Its objective, defined in fairly vague terms, is to stabilise gases responsible for the greenhouse effect at a level which avoids dangerous interference with the climate system and to do so within a period which enables ecosystems to adapt naturally to climate change and so to avoid endangering food production and economic development.

Basle Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal

The uncontrolled movement of hazardous waste primarily to the developing countries has long been a cause of growing concern in UNEP.

In 1987 a working party was asked to prepare a worldwide legal instrument to control transboundary movements of such wastes and their disposal.

This convention was signed in Basle in 1989 and entered into force in May 1992.

One of the advantages of this convention is that it contains an international definition of waste. Furthermore, it lays down internationally recognised rules for the ecological management of wastes and precisely regulates their movement.

The convention further stipulates that movements of hazardous wastes which do not comply with the convention are to be considered as illicit trafficking and a criminal offence. The parties must accordingly vote the requisite national legislation to prevent and punish such trafficking.

The convention's application is the responsibility of a secretariat and the conference of the parties. It is worth noting that the secretariat co-operates with the other UNEP offices, United Nations specialist institutions such as IMO and AIEA, the EEC and OECD. NGOs and the private sector are also associated with the secretariat's activities.

Protection of wildlife

The protection of wildlife is guaranteed by a number of conventions in existence for several years, for example the Ramsar Convention on Wetlands, the Bonn Convention on the Conservation of Migratory Species or the Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora and, of course, the Council of Europe's Bern Convention, which will be discussed later.

But one of the most striking results of the Earth Summit in Rio de Janeiro is clearly the opening to signature of a convention in this field, the Convention on Biological Diversity. This convention, which has been signed by 154 states, entered into force in December 1993 following the thirtieth ratification.

The objectives of the convention are conservation of biological diversity, lasting use of its components and fair sharing of the benefits of the exploitation of genetic resources, resulting in particular from appropriate transfer of the relevant techniques and adequate funding.

The scope of the Rio Convention is universal, since it is open to signature by all states and regional economic integration organisations.

b. Council of Europe conventions in the environment field

Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention)

Opened to signature on 16 November 1979, the Bern Convention entered into force in 1982. It has to date been ratified by twenty-six of the Council of Europe's thirty-two member states, by the European Union and by three non-member states (Burkina Faso, Monaco and Senegal) (see Appendix I).

The convention, which is designed to guarantee the conservation of wild flora and fauna and natural habitats, pays particular attention to endangered species and their habitats and to measures prohibiting or strictly regulating the taking of natural specimens (killing, capture, etc.).

The prime mission of the convention is clearly to be applied throughout Europe. However, as it concerns "European" wildlife and not wildlife "in Europe", the Bern Convention is also open to signature by non-European states.

The Bern Convention immediately assumed an important role in the protection of natural resources and is without doubt an important step forwards in nature conservation. What distinguishes it is its ambitious objectives, its binding character and — something which makes it particularly important in relation to other conventions — the Standing Committee responsible for monitoring its application and taking all steps to increase its effectiveness.

The Standing Committee comprises representatives of all the Contracting Parties and observers from certain states and international or even national organisations. Non-governmental organisation (NGOs) also attend meetings of the Standing Committee. Although they are there in a purely advisory capacity, their role in the application of, compliance with and improvement of the convention is decisive.

Convention on civil liability for damage resulting from activities dangerous to the environment

Since 1972 when it was first defined by OECD, the Polluter Pays Principle (PPP) has become a real legal principle widely adopted internationally but never set down in a binding legal text.

The Council of Europe's Convention on Civil Liability is the first international legal instrument to establish the general principle of civil liability in the event of damage to the environment and to give a legal basis to the polluter pays principle.

It was opened to signature on 21 June 1993 in Lugano and has to date been signed by eight member states (see Appendix II).

On the basis of the concept of objective liability of the operator, the convention is intended to secure compensation for damage to the environment, to people and to property. Furthermore, for certain dangerous activities, it obliges the parties to require operators to take out insurance against the risks.

As regards its application and supervision, it is should be noted that, as for the Bern Convention, a standing committee has been set up.

This text, which is also open to accession by the European Union, will enter into force when it has been ratified by three states, of which two are Council of Europe member states.

2. The functioning of the conventions

A state's signing of a convention is primarily a political act entailing no binding obligation, unlike ratification which does entail such an obligation. This partly explains why a comparatively long time may elapse between accession of principle to a convention, that is signature, and the firm undertaking to apply the convention, that is ratification. Moreover, ratification very frequently requires states to take an array of measures such as adapting national legislation to the provisions of the convention, applying new regulations, deciding on certain investments which can sometimes be very high, etc.

Legal and political factors therefore exert totally different influences on the two stages and explain the disparity between the number of signatories and the number of ratifications, the latter more often than not following at a fairly slow pace over a fairly long period.

Opened to signature at the Rio de Janeiro Summit in June 1992, the Convention on Climate Change was signed by 150 heads of state and government convinced of the need to take urgent and immediate action on the problem. The convention entered into force on 21 March 1994 with the 50th ratification. It is unfortunately important to point out that the meetings already held on practical measures to give effect to the convention have not reached a consensus, especially as regards the financing of those measures. This can only prompt legitimate anxiety as to what will happen at the first conference of the parties to the convention.

The same comment may be made about the Convention on Biodiversity, also opened to signature at the Rio Summit; it has been signed by over 150 states and entered into force on 20 December 1993, three months after the 30th ratification.

In point of fact, this discrepancy between the number of signatures by states and the number of ratifications which follow is to be found with most conventions. (For example, the Basle Convention on the Control of Transboundary Movements of Dangerous Wastes and Their Disposal, which was adopted in 1989, entered into force in May 1992.)

As a rough guide, I would say that the time which elapses between signature and ratification gives a general indication of the readiness of the member states to meet the conditions — at least the minimum conditions — for the application of the different conventions.

One can but endorse the general conclusion concerning the Rio Conference and acknowledge in this context that the impressive number of states which signed the instruments opened to signature at the Earth Summit is an historic event, because, for the first time, we witnessed an almost universal commitment to protection of the Earth.

However, and especially in view of this observation, one can only deplore the fact that most of the states which clearly manifested their anxiety about the situation of the Earth's environment and expressed their determination to take urgent action have not given practical effect to their undertakings.

This discrepancy between the political commitment of signature and the decision to apply a convention is thus the first obstacle to the latter's implementation.

Another obstacle to the application of conventions is their transposition into national law and the implementation of their provisions.

It is frequently found that the legislation of the parties, even after adaptation to conventions, can give rise to disparities inasmuch as the legislation in question may have different objectives in different countries.

Moreover, the varying ways in which the "subsidiarity" principle is applied in the parties mean that in some cases the voting or enforcement of legislation may occur at different levels, and this can give rise to problems of jurisdiction and compound the disparities between the various national laws designed to give effect to a convention.

The fundamental question here is how best to give effect, at worldwide, pan-European and European level, to the undertakings entered into.

On the one hand it has to be accepted that it is essential to implement the various undertakings — be they conventions, agreements or projects, such as those provided for in Rio de Janeiro Agenda 21 — at different levels in order to ensure that specific aspects and special situations are taken into account.

But, on the other, it is equally essential — at the risk of rendering vain any action taken at regional level — to ensure universal co-ordination in order, precisely, to guarantee the full application of instruments at this level and not reduce it to the simple sum of actions taken at lower levels.

This leads to two conclusions. The first is that it is essential for the organs responsible for implementing conventions to be in a position to do so satisfactorily. This means that they must be given terms of reference and resources commensurate with their responsibilities. The second — obvious, perhaps, in theory but clearly extremely difficult to put into practice — is that the establishment of an authority empowered to take decisions could be envisaged in order to avoid conflicts of jurisdiction between sovereign states.

The real powers to be given to the European Union's new (and long-awaited) European Environment Agency will be enlightening in this respect. The establishment of a genuine supra-national environment authority at whatever level will be debated at great length before such a thing is actually created. I am convinced that this question must be addressed in any genuine, concerted environment protection policy. But that is another matter ...

For the immediate future, it is important for states which sign and ratify a convention to set properly about its full and concrete application.

To this end, it is vital to eliminate differences between and gaps in national legislation and to harmonise laws which should facilitate the uniform application of conventions in the parties.

In this context there then arises the problem of the reservations which some states make, when they can, concerning certain articles of conventions. This problem is a thorny one and sometimes constitutes a major impediment to the application of conventions. Reservations can, for example, make a convention wholly inoperative in a particular region or render a particular part of the text inoperative.

The States Parties' practical commitment to the application of conventions is also reflected in the financial resources they are prepared to make available. It must be said that some conventions require enormous financial resources beyond the capacity of some countries. It is very important in this respect that the conventions adopted in Rio de Janeiro have taken this aspect into account and provided for the involvement of financial aid programmes implemented through international organisations.

As regards the Convention on Climate Change, for example, the main programmes would be funded through the Global Environment Facility (GEF), a vast technical and financial assistance programme established in the framework of UNEP, UNDP and EBRD.

But here too the willingness of the parties to commit themselves in a practical way is sorely tried. When the convention was being signed, the constitution of a common fund was envisaged to finance projects. So far no agreement has been reached on how to feed this fund.

Although governments are primarily responsible for the proper application of conventions, it is important to involve other actors so that they may exert pressure on decision-makers and those responsible at all levels for the application of these instruments.

In this respect, on an institutional level, parliaments and territorial authorities can make a valuable contribution. Parliaments can exert pressure on governments to comply with the undertakings they have given and take the necessary measures to give proper effect to conventions, while territorial authorities see that the law and regulations are enforced.

The role of non-governmental organisations is likewise vital. Present as they are in the organs responsible for the application of conventions — for example in the Standing Committee of the Bern Convention — they are often a valuable source of information. They also perform a vital formative and informative function in the community generally.

In particular as regards the Council of Europe's Bern Convention, I already sounded the alarm in the report on its application which I submitted to the Assembly in 1986. On that occasion I particularly stressed the need for the Standing Committee responsible for monitoring the convention's implementation to be more decisive in the performance of its duties.

This was because at the time of the report several member states which had ratified the convention (fourteen then, compared with twenty-six now) had introduced appropriate legislation but this legislation had proved ineffective or had been poorly enforced. The Standing Committee therefore had a clear duty to reaffirm the convention's role more firmly.

Two years after that report the European Parliament also considered a report on the application of the Bern Convention and the Bonn Convention (on the conservation of migratory species of wildlife). This report was presented by Mr H.J. Muntingh, a Dutch member of the European Parliament.

The European Parliament shared the Assembly's concern about the need for the Standing Committee of the Bern Convention to exercise its responsibilities with greater determination. It also emphasised, and rightly, the problem common to all conventions, namely the transposition of adopted conventions into national legislation.

For, as I said earlier, this transposition and the implementation of convention provisions often meet with problems stemming from regional and local differences as well as from divergences between the objectives of nature conservation legislation in the various States Parties.

I also observed earlier — as did Mr Muntingh in his report — that the Bern Convention differs from other conventions in having a standing committee. But the effectiveness of this Standing Committee is clearly conditional on the resources available to it for its work.

At the present time the Bern Convention could play a special role in relation to the Rio de Janeiro Convention on Biological Diversity.

According to the Action 21 Programme adopted in Rio in June 1992, governments "... are invited, in collaboration with intergovernmental organisations, to encourage co-operation between the Contracting Parties of relevant international conventions and action plans, to intensify support for regional instruments, programmes and action plans ...".

It so happens that the Bern Convention is, for European wildlife and natural habitats, the regional instrument for the application of the Rio Convention, while the Council of Europe, which services the convention's secretariat, is the competent international organisation concerned.

The Standing Committee has decided to make a detailed comparison of the Bern and Rio Conventions, taking into account too the EEC's 1992 Directive which, though perhaps more comprehensive and precise than the Bern Convention, is nonetheless directly based on the latter.

The role which the Bern Convention may play in relation to the Rio Convention is another factor to be taken into account in the development of the future activities of the convention and its Standing Committee.

Clearly in the present situation it is essential for the means at the Standing Committee's disposal to be reinforced. Moreover, if the Bern Convention and the Council of Europe can be given this major role in the protection of natural resources at pan-European level, it becomes a political priority to reinforce the resources allocated to the application of the convention.

Conclusion

The foregoing considerations and information show that conventions are without doubt a key to environment protection policy. Most of the instruments prepared to date were the outcome of a great deal of work and sometimes arduous negotiation.

Unfortunately, these tools are quite simply not exploited as they should be, for want of tangible commitment on the part of the Signatory States.

Yet everyone agrees that it is urgent to join forces to ensure that the often very serious harm which our society has inflicted and continues to inflict on the Earth do not — sometimes irreparably — damage our environment.

This awareness sometimes — as at Rio — takes the form of a quasi-universal statement of political faith which subsequently gets unfortunately lost in the meandering and sometimes mysterious interests of the different parties.

In the present situation it is vital that priority be given to all measures which make it possible to improve or — simply — to apply the existing conventions. To do this would already be to take a major step forwards in the practical expression of the political will of our countries and organisations to act to improve our environment and promote lasting development.

Reporting committee: Committee on the Environment, Regional Planning and Local Authorities.

Budgetary implications for the Assembly: none.

Reference to committee: Doc. 7010 and Reference No. 1923 of 28 February 1994.

Draft recommendation adopted by the committee on 14 April 1994.

Members of the committee: MM. Parisi (Chairman) (Alternate: Leccese), Ruffy, Lord Newall (Vice-Chairmen), MM. Alemyr, Bachna (Alternate: Kolar), Bernardini (Alternate: Andreoli), Gudmundur Bjarnason (Alternate: Mrs Astgeirsdottir), Mrs Blunck (Alternate: Mr Antretter), MM. Bonrepaux (Alternate: Valleix), Brennan (Alternate: Mitchell), Briane, Büchel, Mrs Ciemniak, MM. Demiralp, Dimmer, Mrs Dromberg, MM. Eversdijk, Feldmann, Ferrarini, Frunda, Mrs Graenitz, MM. Granstedt (Alternate: Mrs Saint Cyr), MM. Grau i Buldu, Hadjidemetriou, Hardy, Jung, Mrs Kaliska, MM. Korakas, Koulouris, Kukk, Lanner, Lie, Lotz, Meszaros, Monfils, Motiu, Mozetic, Pinto, Pozela, Redmond (Alternate: Sir John Hunt),Mr Reis Leite, Mrs Robert, Mr Rubner, Mrs Sanchez de Miguel, Mr Sarens, Mrs Severinsen, MM. Spacek, Szymanski, Talay, Toshev, Tummers, Vella, Zierer.

N.B. The names of those who take part in the vote are printed in italics.

Secretaries to the committee: Mrs Cagnolati and Mr Sixto.