The Advent of the United Nations Environment Assembly

“We need to act decisively to change humanity's relationship with our planet,” said UN Secretary General Ban Ki-moon in Nairobi on June 27, 2014 at the closing session of the first historic meeting of the United Nations Environment Assembly (UNEA).[1]

As today’s architects of reform seek to improve the complex system of institutionalized international environmental cooperation, they face an uphill task of overhauling the architecture of international environmental governance (IEG) to squarely address global environment concerns.  Even as these efforts are underway, the first UNEA meeting witnessed participation of approximately 1200 participants, 170 national delegations, 80 ministers, and 40 events during the five-day event (June 23–27, 2014) in Nairobi.

The meeting adopted sixteen decisions that call for international action on major environmental issues such as air pollution, the illegal trade in wildlife, plastic debris in the oceans, chemicals, waste, and marine environment.  International cooperation on measures to combat illegal trade in wildlife was a major theme discussed at UNEA.  In fact, a high-level ministerial dialogue on illegal trade in wildlife held on June 26, 2014 adopted resolution 1/3 addressing illegal trade in wildlife, underscoring the need to develop zero tolerance towards environmental crimes.[2]

UNEA now provides a global platform for biennial sessions of environment ministers to set priorities for global environmental policies and to adopt decisions on simmering global environmental challenges.  The advent of UNEA with universal membership (all 193 UN members) has effectively jettisoned the Governing Council (GC) (with 58 members elected by the UN General Assembly) that held sway for 40 years. 

The new body, with its broad mandate as well as composition, has increased political weight, compared to the GC.  This is especially relevant to the extent to which it can present a strong voice for the environment.  Hence, it could provide more room for UNEP to contribute, mainly through its Division of Environmental Law and Conventions (DELC), to the development of international environmental law.  DELC could work out concrete arrangements with multilateral environmental agreement secretariats, several of which UNEP provides.  UNEP may even seek to procure legal capacity for itself through a concerted “creeping” process under the international environmental governance (IEG) agenda.[3]  In fact UNEA could now provide a stepping-stone to finally elevate UNEP to the level of a UN “specialized agency.”  Such an entity would have better standing and organizational clout to protect and improve the global environment.  It may also provide a strong forum for international environmental law-making and institution-building within the UN system.  Interestingly, the international law-making process in the environment field is generally molded by international institutions, which act as catalysts, stimulators, and sometimes even active participants in the process.  In this context, UNEA could strengthen capacity of UNEP to lead amidst multiple environmental institutions.  In the coming years, the review of the current strategic plan, Montevideo IV, as well as the preparations for Montevideo V (2020–2030) could set a new direction for the UNEA.[4]   

Travails of UNEP as a Program

UNEP was established by UN General Assembly resolution 2997 (XXVII) of December 15, 1972 as a follow up to the first UN Conference on Human Environment  to meet the “urgent need for a permanent institutional arrangement within the United Nations system for the protection and improvement of the environment.”[5]  At the institutional level, UNEP has been a program, a subsidiary organ of the UN General Assembly. As a UN program, in terms of hierarchy, it is responsible and reports to the General Assembly through the Economic and Social Council.  As a program, UNEP’s ability to set the global environmental agenda has been severely constrained by its organizational structure, unpredictable funding, institutional clogging of the environmental field, and lack of political confidence of some of the key UN member states.

A quasi-autonomous Environment Secretariat within the UN, headed by the UNEP Executive Director, was carved out to serve as a focal point for environmental action and coordination within the United Nations system.

Since UNEP was created to be merely a program within the UN, the enabling General Assembly resolution described it simply as “institutional and financial arrangements for international environmental cooperation.”  The UNEP Governing Council was given a mandate that included promotion of “international cooperation in the field of the environment” and to provide “general policy guidance for the direction and co-ordination of environmental programmes within the United Nations system.”[6] In actual practice, UNEP has acted as a catalyst in international environmental law-making process as best reflected in many of the multilateral environmental agreements (MEAs) as well as adoption of some soft-law instruments (such as guidelines).

Over the four decades of its existence, UNEP has “attained considerable success in galvanizing action on international environmental concerns, and laying down the threshold of environmental behavior.”[7]  Even within the narrow confines of its mandate, UNEP has catalyzed preparations for many MEAs, including two of the instruments adopted at the 1992 Rio Earth Summit: the Convention on Biological Diversity (CBD) and the UN Framework Convention on Climate Change (UNFCCC).  At the behest of a 1988 General Assembly resolution, UNEP and the World Meteorological Organisation (WMO) also co-sponsored the Intergovernmental Panel on Climate Change (IPCC), and UNEP provided substantive support and expertise for the conclusion of the 1994 Convention to Combat Desertification (CCD).  Its Regional Seas Programme (RSP) has more than fifty hard and soft law instruments adopted by the sovereign states.  UNEP is the host institution for several MEAs, including the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the 1979 Convention on the Conservation of Migratory Species of Wild Animals (the Bonn Convention), the 1985 Vienna Convention and the 1987 Montreal Protocol on the Depletion of the Ozone Layer, the 1989 Basel Convention on Transboundary Movements of Hazardous Wastes and their Disposal, and the CBD.

Efforts to Revitalize UNEP

With a simmering environmental governance crisis, declining funding, eroding authority, and perception of weakness, the GC sought to revitalize UNEP.  After the adoption of the 1997 Nairobi Declaration by the Council, the UN Secretary-General created the Töpfer Task Force in early 1998, which reported to the UNGA in June 1998.  The UN General Assembly directed a series of institutional steps both within the UN Secretariat as well as at the intergovernmental level.[8]  It brought into being two new arrangements: the Environmental Management Group (EMG) for inter-agency environmental coordination within the UN system (modeled on the UN Development Group) and the Global Ministerial Environment Forum (GMEF) for high-level policy dialogue.  The GMEF was intended to extend the UNEP GC meeting at the ministerial level.

UNEP’s report from the twelfth special session of the GC/GMEF celebrated its fortieth anniversary, took stock of its journey, and prepared for a meaningful and decisive outcome at the Rio+20 Summit.  As a corollary, the UN General Assembly resolved to:

(a) Strengthen and upgrade the United Nations Environment Programme in the manner set out in subparagraphs (a) to (h) of paragraph 88 of the outcome document, entitled “The future we want”. . . (b) Establish universal membership in the Governing Council of the United Nations Environment Programme, and mandates it, as from its first universal session to be held in Nairobi in February 2013 . . . .[9]

The GC hosted its final 27th Session in its new incarnation as a UN environment program with universal membership, i.e., all 193 member states of the United Nations automatically became members of the UNEP Governing Council.  The new structure obviated the need for any formal role of the General Assembly to elect members of UNEP’s plenary body—to be now known as the Environment Assembly.  It became a symbolic snapping of the umbilical cord with the UN General Assembly, of which UNEP still technically remains a subsidiary organ.

As mandated by the UN General Assembly, UNEA has assumed the elevated status of  a plenary body akin to the plenary organs  of other sixteen specialized agencies of the United Nations. For this, UNEA has been provided universal membership as well as a high-level ministerial segment to bolster decision making. Still UNEA remains a subsidiary organ of UNEP that is itself a subsidiary organ of the General Assembly. This means that decisions of UNEA need to be reported to the UNGA unlike decisions taken by plenary organs of specialized agencies of UN.  Since UNEP itself has been upgraded both with universal membership and the change of name from “Governing Council” to “Environmental Assembly,” there was no need for the artificial and temporary construct of the GMEF.  Hence the GMEF came to an abrupt end after a life span of twelve years.  Instead, UNEA will now meet only once in a year with a ministerial segment.  The restructuring process seems to be ad hoc, hortatory, and reflects lack of political will of the major actors for a long-term treaty-based “functional” international organizational governance structure as a final salvation. 

There has been growing concern in the past decade over the proliferation of legal and institutional arrangements.  It is increasingly apparent that their fragmented and uncoordinated nature causes duplication and inefficiency and renders them inadequate to meet the environmental challenges of the twenty-first century.  The main concerns are lack of a functional framework for coordinated international action and consequent inefficient use of the limited resources available for environmental protection.

This lack of coherence can be attributed to the complexities of the environmental issues involved and to the sui generis nature of the international environmental law-making process. Since the early 1970s, a large number of MEAs in the areas of ocean, atmosphere, nature, waste, fisheries, and chemicals have established institutional arrangements comprising a conference or a meeting of the parties (COP/MOP) with decision-making powers, a secretariat, and specialized subsidiary bodies.  These institutions are regarded as “treaty bodies” with their own law-making powers and compliance mechanisms.

At the same time, there are multiple institutions with a mandate for protection of the environment.  The recent past has seen the making of the Committee of Permanent Representatives, the Environment Management Group, the Global Ministerial Environment Forum, the High Level Political Forum on Sustainable Development, and now the UN Environment Assembly; as well as the unmaking of institutions such as the Environmental Coordination Board, the UNEP Governing Council, the GMEF, and the CSD on the IEG chessboard.

In general these institutions have been established through ad hoc, diffuse, and somewhat chaotic processes, generally following the essentially random emergence of environmental issues on national and international political agendas.  There is a growing acceptance that better governance could be achieved by establishing inter-linkages and synergies between multilateral institutions, and/or the creation of new or reformed institutions.

The UNEA appears as a stop-gap arrangement until the appropriate international organizational structure is provided to fill in the missing “functional” area for the environment among the UN “specialized agencies.” 

UNEA Outcome

The overarching themes of the first UNEA session were sustainable development goals (SDGs) and the post-2015 Development Agenda, including sustainable consumption and production.  The meeting was expected to deliver a series of outcomes spelling out concrete actions to address key environmental challenges that UNEP has been mandated to grapple with, despite its small budget and location in Nairobi, far away from decision-making centers of the world.  Efforts are on to forge close linkages between the SDGs and the Millennium Development Goals (MDGs), to arrive at one global development agenda for the post-2015 period with sustainable development at its center.

The outcome, though not legally binding, does indicate a consensual political roadmap for UN member states.  It calls for them to strive for the targets through periodic global deliberations, processes, and institutional structures.  The targets serve as goalposts and provide a timeline.  The approach uses soft normativity to provide a comfort zone for states.  Realization of the project will depend upon the sincerity of all the relevant stakeholders.   

UNEA called for reinforced actions and enhanced international coordination to counter illegal trade in wildlife.  UNEA resolution 1/3 promoted zero-tolerance policies and the development of sustainable and alternative livelihoods for communities adversely affected by the illegal trade.  It emphasized strengthening the role of CITES and reiterated General Assembly resolution 68/193 requiring coordinated action to eliminate corruption and disrupt the illicit networks that drive and enable trafficking in wildlife, timber, and timber products.  The second session of UNEA is intended to analyze the environmental impacts of illegal trade in wildlife and wildlife products and to also enhance UNEP’s role in this regard through UNEP expertise, such as environmental aspects of the rule of law, judicial training, and information exchange about judicial decisions and practices.

UNEA emphasized the sound management of chemicals and waste as an essential and integral cross-cutting element of sustainable development and the post-2015 Development Agenda.  UNEA has called for the full integration of the environmental dimension into the sustainable development process, acknowledging that a healthy environment is an essential requirement and key enabler for an ambitious, universal, and implementable post-2015 Sustainable Development Agenda.

Incremental Process

It seems the long winding and incremental process of positioning UNEP to be the “principal United Nations body in the field of environment” as well as “the leading global environmental authority that sets the environmental agenda” has now come full circle.[10]  In institutional terms, UNEP with UNEA universal membership could formally emerge as a global environmental forum that acts as a global environmental authority as well as reflects the wishes and expectations of all the members of the United Nations.  The advent of universal membership of UNEA is a watershed development in the incremental process of up-gradation of UNEP.  It has provided virtual trappings of an international organization to UNEP without formally declaring it to be so.  Thus, UNEP has virtually been taken closer to being a unique proto-specialized agency under the UN system that underscores its sui generis legal status.

This reform, coupled with adequate, stable, and predictable funding from the regular UNGA annual budget could, in due course, provide a basis for finally elevating UNEP to the level of a UN specialized agency that has been variously described as United Nations Environment Protection Organization (UNEPO), UN Environment Organization (UNEO), and World Environment Organization (WEO).  Elevating UNEP to the level of a specialized agency also appears to be a pragmatic course of action compared to creating a new organization with a new bureaucracy, which might replace UNEP.  Such an approach, favored by some due to deep disdain for its location in Nairobi (being the only important UN institution located in a developing country), will amount to throwing out the baby with the bath water, and hence prove counterproductive.  In this context, the UNEA heralds fresh hope for UNEP as it gradually limps toward attaining the status of a specialized agency for the environment.  As of now, UNEA has a sui generis legal status: it has trappings of a functional agency without formally being one.  This is due to many reasons, including: lack of a treaty to provide its constitution, the status of the executive director in the UN hierarchy, its reporting mechanism to the UN General Assembly, and being part of the UN Office in Nairobi (UNON) without its own independent headquarters.    

Whither IEG?

Though called, hyperbolically, a “game changer,” UNEA may be just the proverbial old wine in a new bottle.  Following decisions adopted at the United Nations Conference on Sustainable Development (Rio+20) in June 2012, the UN General Assembly decided to rename and enlarge the UNEP Governing Council[11] but it remains a subsidiary organ of a subsidiary organ of the United Nations General Assembly.  This step is a far cry from upgrading UNEP to the status of a UN specialized agency.[12]

There was hope that the largest gathering of environmental ministers since Rio+20 would generate momentum to usher in a new environmental agenda in the post-2015 era.  However, through the UNEA’s Ministerial Dialogue, delegations were limited to brief formal interventions that could have taken a more dynamic form.  Ironically, it appears, this UNEA meeting could talk about “big” issues, without showing a way out.  The format of the UNEA, compared to the past meetings of the UNGC, did not permit space to work though time-consuming issues.  As such, the future direction in this respect will be dictated more by the political will of states, how far they wish to go in the process, how seriously they want to take environmental challenges, and how much they are willing to allow transparency in the functioning of different international institutional structures in order to effectively revitalize the IEG architecture.  It remains to be seen whether UNEA remains an interim arrangement until UNEP’s elevation to a UN specialized agency for the environment.
 

About the Author:  Bharat H. Desai is the Professor of International Law, Jawaharlal Nehru Chair in International Environmental Law and Chairman, Centre for International Legal Studies, School of International Studies, Jawaharlal Nehru University, New Delhi as well as Chairman, Centre for Advanced Study on Courts and Tribunals, Amritsar.