A World Environment Organization Reflections on a difficult debate and options for the future Frank Maes & Nils Goeteyn 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University

IEG: a paradox? New scientific evidence and monitoring points out that environmental degradation is not slowed down, although more actors are involved, more money has been spend and more rules and norms have been developed de last 30 years Does this mean that actors perform badly, money has not been used adequately and rules and norms had no visible effect? 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University

Actors Proliferation of UN institutions dealing wholly or partly with environmental issues (30 UN Agencies and programs have a stake in environmental management) There is a comparable proliferation at regional and MEA levels Also economic organizations claim sustainable development as one of their core goals (World Bank, WTO, …) 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University

Development of rules and norms: MEAs Facts: over 502 MEAs of which 323 are regional 60% (302) have been concluded after 1972 (70% regional and 40 % marine) MEA topics: Pre-1972: majority biodiversity related – wildlife protection, … (1/2 marine; ¾ regional); marine pollution, nuclear related, freshwater basins After 1972: same topics (majority marine) + atmospheric related conventions: air pollution; protection ozone layer, climate change + chemicals + hazardous wastes + biodiversity + 1 universal freshwater 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University

Legal weaknesses between MEAs - Incoherent definitions and application of environmental principles (e.g. precautionary principle/approach) - Incoherent decision making processes and structures -- Questions of legitimacy of decisions - Different access and participation by stakeholders - Conflicting policies between MEAs and other multilateral agreements Different compliance regimes, if existent 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University

Current weaknesses of IEG - Proliferation of MEAs and fragmentation of IEG often result in duplications, while there are issues not addressed effectively by MEAs (forests, commercial fishing, coastal zone management, river ecosystems, energy, …): conflicting agendas, geographical dispersion, inconsistent rules and norms Fragmentized approach for international action, due to marginal political support. Some IO are reluctant to cooperate – inward looking: lack of cooperation and coordination Inadequate implementation, enforcement and effectiveness: IEG turned into a permanent state of negotiations. Consensus building is too much driven by political feasibility instead of science driven. No real enforcement. 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University

Current weaknesses of IEG - Lack of SD performance indicators for measuring effectiveness of decisions taken within MEAs - Complex sources of finance – instability, short term and fragmentised resulting in high transaction costs. Insufficient finance for management and implementation of MEA commitments by DCs Management problems due to a great number of reporting duties and growing number of environmental institutions. This results in reduced participation by states for reasons of limited capacity, financial means and increased workload of meetings and reporting requirement (CDD, UNFCC & Desertification: 230 meeting days annually + seven other universal agreements: total is 400 meeting days annually) 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University

Models for IEG Many proposals (>25 different concepts) New Agency Model: creation of a new organization outside UNEP, able to steer agencies involved in environmental issues (WEO: French proposal - Sarkozy) Upgrading UNEP (to UNEO) (EU proposal) Organizational Streamlining Model: improved coordination and synergies among various entities in global environmental governance (clustering, merging secretariats, …) - consensus Umbrella organization for SD (Brazilian proposal) 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University

Models for IEG WEO How * new specialized agency/organization (art. 59 UN Charter) under ECOSOC * new hybrid organization for the environment (art. 22 UN Charter) under UNGA Problems * no political support to create a separate WEO so far * are governments willing to give a WEO the same powers or authority as COPs have? Limited to global commons? * legal issues regarding institutional architecture, treaty law & compliance 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University

Models for IEG Organizational Streamlining Model: clustering - Co-ordination among MEAs & respecting authority and autonomy of secretariats and COP bodies - Synergies and linkages by clustering agreements (sectoral: biodiversity related, marine, chemicals/hazardous waste, atmosphere/energy; functional: e.g. trade related (CITES-Montreal Prot.-Basel-PIC) for implementation & enforcement issues - Reschedule COP meetings, e.g. shorter duration & back to back parallel conferences - Attention to co-location of future MEA secretariats - Scientific cooperation and holistic approach through for e.g. joint programs Problem: this model does not deal with core issues (universality, public part., finance, authority) 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University

Political process 1997 Rio + 5 (UNGA) review outcome UNCED + Nairobi Declaration (UNEP = leading UN program for environment) 1999 UNGA Resolution (53/242) established the Global Ministerial Environment Forum (GMEF), meeting with UNEP Governing Council (GC/GMEF) 2000 1st GC/GMEF confirms the role of UNEP – review institutional structure for IEG (Malmö Declaration) 2000-2002: Intergovern. Group of Ministers or their Representatives on IEG (IGM ) open ended + Executive Director UNEP – report to GMEF on IEG, finance and clustering MEAs (Cartagena agreement) 2002 WSSD – attention to IEG is recognized & restated in the Plan of Implementation (Ch. XI, para. 140 (d)) - endorses Cartagena decision (clustering MEAs / finance of UNEP / review universal participation by UNGA) 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University

Political process 2004 (GMEF/GC) Bali Strategic Plan for technical support and capacity-building of developing countries and EIT. Fall 2003 France proposes to set up an informal working group on transforming UNEP into a UNEO (26 countries, geographically balanced, take part without prejudging their position) 2004 Guiding Principles for this informal working group: The creation of a UNEO should be achieved by transforming UNEP (and not in parallel with UNEP) UNEO headquarters should remain in Nairobi The legal autonomy of the conventions should be maintained The UNEO would not have the vocation for competing with WTO 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University

Political process UN General Assembly resolution 60/1 (2005) during the Millennium Review Summit states, in part: “Recognizing the need for more efficient environmental activities in the United Nations system, with enhanced coordination, improved policy advice and guidance, strengthened scientific knowledge, assessment and cooperation, better treaty compliance, while respecting the legal autonomy of the treaties, and better integration of environmental activities in the broader sustainable development framework at the operational level, including through capacity-building, we agree to explore the possibility of a more coherent institutional framework to address this need, including a more integrated structure, building on existing institutions and internationally agreed instruments, as well as the treaty bodies and the specialized agencies” 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University

Political process UNGA established an Informal Consultative Process on the Institutional Framework for the United Nations' Environmental Activities. The first round of consultations took place in June 2006. 9 November 2006 Report of the Secretary-General’s High-level Panel “Delivering as one”, recommends that: IEG be strengthened and made more coherent in order to improve the effectiveness and targeted action of environmental activities in the UN system. UNEP be upgraded and given real authority as the environmental policy pillar of the UN system, backed by normative and analytical capacity. 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University

Political process - UN entities cooperate more effectively on a thematic basis and through partnerships, with a dedicated agency at the centre. Common agreed activities and policy objectives. - Efficiencies and substantive coordination should be pursued by diverse treaty bodies to support effective implementation of major MEAs. E.g. reduce costs and reporting burdens to streamline implementation - GEF should be strengthened as the major financial mechanism for the global environment. 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University

Political process In June 2007 the Co-Chairs of the Informal Consultative Process presented their so-called Options Paper. The Options Paper contained a list of over 50 recommendations for an improved IEG system. Based on these ideas and experiences, the co-chairs saw the IEG reform process develop via two parallel ways. Firstly, there is the reform and strengthening of the existing structures, for which there is a “wide volume of consensus”. Secondly, there’s the debate on a “broader transformation” of the IEG system (i.e. structural change), an evolutionary process concerned with the “future needs”. 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University

Political process After a new series of informative talks, the co-chairs came out with the “Draft Resolution on Strengthening the Environmental Activities in the United Nations System” in May 2008. In December 2008 several delegations moved to have a break in the negotiations. The failure of the debate in New York created a window of opportunity for UNEP to step into the debate, in which it had had only a marginal voice before. Nevertheless it is expected that finally UNGA will decide. The co-chairs of the process in New York have not ended their mandate. The main venue for discussion on IEG is still the UNGA. The ministerial consultations in GMEF will thus not create a parallel process, but aim only to help the debate in New York. 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University

Political process The need to kick-start the reform debate prompted UNEP at the 25th Regular Session of its Governing Council in February 2009 to make IEG one of the two central themes to be discussed in the ministerial conference, under the provocative title “IEG: help or hindrance? IEG from a country perspective”. The outcomes of the discussions are remarkable. A small regionally representative group of ministers or high-level representatives have been established to present the results of their deliberations on the architectural reform of IEG at the next special session of the GC/GMEF in February 2010. 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University

Political process Since February 2009 this Ministerial Group met twice, in Belgrade (June 2009 – 38 participants) and in Rome (28-29 October – 48 participants) Rome was about short term options. A consensus was reached about 40 options related to 5 functions: Creating a strong, credible and accessible science base and policy interface (Int. panel for natural resource management?) Development of a global authoritative and responsive voice for environmental sustainability Efficiency and coherence in the UN family (between and with MEAs; between and with agencies) Securing sufficient, predictable and coherent funding (VISC: voluntary indicative scale of contributions) Ensuring a responsive and cohesive approach to country needs 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University

Political process: assessment Rome was about short term options and did not pay much attention to the broader transformation (UNEO or WEO) which is at the end considered a UNGA matter. The future of IEG now lies with a small, regionally representative group of ministers. If they are able to feed the debate with new innovative ideas, the GC/GMEF will have the means and a fitting timeframe to prepare and conduct the actual negotiations on a new institutional framework at the RIO+20 conference that is being planned for 2012. If the consultations fail, or fail to bring tangible results to the table in February 2010, the debate will most likely bleed to death. 7th Annual Colloquium of the IUCN Academy of Environmental Law – Wuhan – 1-5 November 2009 Prof. Dr. Frank Maes - Faculty of Law – Department of Public International Law – Ghent University