The United Nations Environmental Program (UNEP) UNEP was created by UN General Assembly Resolution 2997 on December 15 1972. Its purpose is to create a body of law that can lead towards a better protection of human health and the environment, and to bring new issues to the attention of the international community. To this end, one of UNEP's functions is to draft environmental conventions and treaties. UNEP is based in Nairobi, Kenya and has six regional offices worldwide. Its different purposes are spread among its seven divisions. The main organ of UNEP is its Governing Council. Fifty-eight countries are elected by the UN General Assembly for four-year terms in order to satisfy an equitable geographical representation.[1] Evolving within the UN framework, UNEP works with international organizations, national governments, as well as the civil society, the private sector and non-governmental organizations. Recent Developments: The EC Implementation of the UNEP Stockholm Convention: a move toward an effective International Environmental Law. I. Background of the Stockholm Convention The Stockholm Convention on Persistent Organic Pollutants was adopted at a Conference of Plenipotentiaries in Stockholm on May 24 2001. Its aim is to eliminate or restrict the production and use of all intentionally and unintentionally produced persistent organic pollutants (POPs). In order to be efficient, the Convention targets twelve of the more dangerous POPs. The Convention entered into force on May 17, 2004 when France became the 50th state to ratify. The Convention establishes general rules and a broad exception. First, it requires the Parties to reduce and/or eliminate intentional releases of POPs from their production and use.[2] Second, "specific exemptions" can be accorded via the Secretariat of the UNEP.[3] Unintentional productions of POPs are addressed separately. Even if challenging, the Stockholm Convention assumes the same risk as the other UNEP Conventions. Indeed, UNEP is suffering from a congenital weakness, which is its structure. Its dependence to the United Nations system, and its lack of jurisdiction, raise issues regarding the implementation of the Convention. As Part of the Economic and Social Council of the United Nations, its lack of independence is crucial regarding the implementation of the Convention. The Convention shifts the burden to the Parties in order for them to create "procedures and institutional mechanisms for determining non-compliance."[4] There is no specific jurisdictional mechanism in case a dispute occurs between parties. Therefore, the writers left an alternative for the Parties: choosing the arbitration system or the submission to the International Court of Justice.[5] However, this alternative suffers some weaknesses too. First, the Convention states that the International Organizations that are Parties to the Stockholm Convention cannot choose, but must accept the arbitration system. Second, if the Parties in dispute have not chosen the same procedure (arbitration or submission to the International Court of Justice), a notification system must be followed; with the possibility of a conciliation commission that renders a report with recommendations.[6] This non-jurisdictional system cannot guarantee the implementation of the Convention by the Parties, nor their compliance. Therefore, this guarantee has to be found in the Parties' jurisdictional system. The European Union has been able to achieve the implementation of the Stockholm Convention because of its efficient jurisdictional system, which has been strengthened lately by the penalization of environmental law. Our attention will focus first on the concrete EC Implementation Plan of the Stockholm Convention where the legal tools used by the EC will be stressed. Then, we will focus our analysis on the legal significance of the EC Implementation plan regarding UNEP's goals, and more broadly on its significance regarding an emerging but effective international environmental law. II. The EC Implementation plan of the Stockholm Convention Pursuant to Article 7 (1) of the Convention[7], the EC presented its Implementation Plan on POP on March 9, 2007 and submitted it to the Secretariat of the Convention. The implementation plan focuses on the elimination of intentional production and use of POP's, the elimination of import and export of POP's, the prevention of the production and use of new chemicals exhibiting characteristics of POP's, assessing and controlling chemicals in use, reducing total releases from unintentional production, and pursuing the identification and environmentally sound management of stockpiles and wastes. Such an implementation plan from an international organization raises the specific question as to what legal tools the organization can use in order to implement the Stockholm convention within its legal boundaries. The EC could only implement the Stockholm Convention in basing the implementation ground on regulations that the EC has the competence to enact. The main legal instrument that implements the Convention at the EC level is Regulation (EC) No 850/2004 on POP, which was enacted by the Council and the European Parliament under article 175 (1) ECT. The specific feature of this regulation is its direct effect within the 27 Member States' legal systems without any transposition act on their part, and even in the EU countries that are not Parties yet to the Stockholm Convention. The EC regulation adopted the same purpose as the Convention: the "protection of human health and the environment from POPs". It also adopted the same international legal ground, which is the precautionary principle laid down in the Rio Declaration on Environment and Development,[8] as well as in the EC Treaty in article 174.[9] Regulation (EC) No 850/2004 implements most of the basic obligations under the Convention. Article 1 provides with the objective and scope of the Regulation, which are the prohibition, restriction of the production and on the placing on the market, as well as the use of substances subject to the Convention. It also provides "[P]rovisions regarding waste consisting of, containing or contaminated by any of these substances[10]." However, the means used by the Regulation are broader then the means of the Convention, and encompass more measures[11]. The second main instrument of the Stockholm Convention implementation is Regulation (EC) No 304/2003 on the export and import of dangerous chemicals. Under that Regulation, the POP substances listed in the Convention are simply prohibited of export[12]. Among others, several Council Directives[13] implement the basic obligation to prevent marketing and use of POP. The REACH Regulation[14] concerning the Registration, Evaluation, Authorization and Restriction of Chemicals specifically prevents the production of new substances with POP characteristics, thus broadening the scope of the substances based upon their similarities with POPs. The intrinsic necessity of harmonization and uniformization of the regulations governing the internal market leads to an almost uniformized Environmental Law in the European Union. However, the sources of this legal area are international, the UNEP being the main arena. It means that the implementation of the Stockholm Convention has to be analyzed trough the perspective of its internationalization. Thus, it seems that the EC implementation plan is a new stone to the edifice of an International Environmental Law due to the criminal remedies that the EC regulations provide in the case of the infringement of the Convention by the Member States. III. An Implementation Plan Consistent with the Emergence of Penalties in International Environmental Law. The EC Implementation Plan overcomes the intrinsic flaws of the Stockholm Convention and establishes what was missing for an effective International Environmental Law. One of the main flaws of the Convention is the lack of a judicial system entitled to implement the Convention, and to penalize inconsistent behaviors. Such a default is overcome by the Plan. If the Member States do no respect their European obligations under the Treaties, included the basic obligations of the Stockholm Convention, compulsory means can be taken by the Commission and by the European Court of Justice[15]. The other flaw of the Convention was the impossibility to state a penalization requirement. This impossibility is overstepped by the EC Implementation Plan trough the implementative regulations of the Convention. For example, Article 13 of Regulation (EC) No 850/2004 states that "Member States shall lay down the rules on penalties applicable to infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive[16]." The Member States have therefore a legal obligation to establish those penalties to the infringements of the Regulations that implement the Stockholm Convention. The remand to the Member States stems from the official lack of competence of the EC in the criminal field,[17] which is explained by the regalien nature of the criminal prerogative. However, the ECJ progressively made it an obligation for the Member States to adopt criminal sanctions and to enact criminal procedures against persons who do not respect European obligations. This obligation is justified by the loyal cooperation the Member States owed to each other and to the EC pursuant to article 10 ECT.[18] Several case laws illustrate the ECJ's large interpretation of this article.[19] Furthermore, the use of article 10, which belongs to the first pillar of the European Union in the third pillar, illustrates the integration process the EU is going through. Furthermore, the recent legal development of the ECJ [20] in regard of the environment are significant not only for the Stockholm Convention implementation, but for any other International Convention related to the Environmental field. The Court simply ruled that the EC is competent to take necessary measures in the criminal field to implement environmental laws because the environmental protection is one of the main goals of the EU pursuant to articles 2 and 3 of the ECT[21]. This judgment is another step toward a more effective International Environmental Law on the one hand, and toward the internationalization of UNEP Environmental Law. Indeed, the implementation of the Stockholm Convention will be more effective if the EC determined the criminal penalties, which would then supersede the Member States' current obligations to determine such penalties. The penalties will be unified, and more compulsory. At last, the Implementation Plan also overcame the other main obstacle of the Convention implementation. The specific EC legislative instruments that implement the Convention are regulations, which means that they are directly applicable in the 27 Member States, even if the States that are not Parties to the Convention yet, or that have not ratified the Convention yet. The use of this legislative tool allows overcoming the international requirements and sometimes obstacles to the implementation of international conventions, which are first to be a party to a convention, and second to sign and ratify the convention. Because the source of the Member States' obligation to respect the implementing regulations of the Convention is to be found in the EC Treaty in spite of the UNEP source of the Convention, the implementation of the Convention is guaranteed. The implementation of the Stockholm Convention by the European Community is a milestone both for the UNEP and the EU, and represent a move toward a more effective International Environmental Law. A judicial system to guarantee the Convention implementation and the penalization of inconsistent behaviors to the Convention is a fundamental element in the emergence of an effective International Environmental Law. Jordane-Christine Fura LL.M in U.S. and Global Legal Studies, Case Western Reserve University. MA' International and European Business Law, Université Robert Schuman, France Footnotes: 1 The United States is currently a member until December 31, 2009. 2 Releases from the substances listed in Annex A of the Convention, or exemptions under Annex B, which provides exemptions when the substance follows an "acceptable purpose" or is a "specific exemption". 3 See article 4 of the Convention and the registration procedure in order to get an exemption. 4 See article 17 of the Convention. 5 See article 18 of the Convention. 6 See article 18 (6) states that: If the parties to a dispute have not accepted the same or any procedure pursuant to paragraph 2, and if they have not been able to settle their dispute within twelve months following notification by one party to another than a dispute exists between them, the dispute shall be submitted to a conciliation commission at the request of any party to the dispute. The conciliation commission shall render a report with recommendations. 7 The article states that: Each Party shall: (a) [d]evelop and endeavour to implement a plan for the implementation of its obligation under this Convention; (b) [t]ransmit its implementation plan to the Conference of the Parties within two years of the date on which this Convention enters into force for it; and (c) [r]eview and update, as appropriate, its implementation plan on a periodic basis and in a manner to be specified by a decision of the Conference of the Parties. 8 Principle 15 of the Rio Declaration states that "[i]n order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." 9 Article 174 (2) EC states that: Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.Therefore, we can talk of an international principle of environmental law. 10 See article 1 of Regulation (EC) No 850/2004. 11 For an example, the Regulation also regulates the "placing on the market", which the Stockholm Convention does not require. The implementation plan appears to be tailored to the EU own policies. 12 See article 10 and Annex V of Regulation (EC) No 304/2003. 13 See Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labeling of dangerous substances; Council Directive 91/414/EEC concerning the placing of plant production products on the market. 14 See Regulation (EC) No 1907/2006 15 See EC Treaty article 226, 227 and 228. 16 The same provision is to be observed in article 12 of Regulation (EC) No 304/2003. 17 The ECJ ruled in case 50/76 Amsterdam Bulb [1977] (point 32 to 33), that: Although article 5 of the EEC Treaty places Member States under a duty to take all appropriate measures, whether general or particular, to ensure fulfillment of the obligations resulting from actions taken by the Institutions of the Community, it allows the various Member States to choose the measures which they consider appropriate, including sanctions which may even be criminal in nature . . . . [I]n absence of any provision in the Community rules providing for specific sanctions to be imposed on individuals for a failure to observe those rules, the Member States are competent to adopt such sanctions as appear to them to be appropriate. 18 Article 5 EC states that: Member States shall take all appropriate measures, whether general or particular, to ensure fulfillment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardize the attainment of the objectives of this Treaty. 19 See Case 186/98, Nunes et de Matos [1999] 20 See Case 176/03, Commission v. Council [2005] 21 In this case, the ECJ ruled in point 47 and 48 that: As a general rule, neither criminal law nor the rules of criminal procedures fall within the Community competence . . . . However, the last mentioned finding does not prevent the Community legislature, when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, from taking measures which relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective. |
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© 2010 American Society of International Law, 2223 Massachusetts Avenue, NW Washington DC 20008
www.asil.org