The United Nations and the Republic of Kenya

Considering that the United Nations General Assembly, by resolution 2997 (XXVII) of 15 December 1972, has established institutional and financial arrangements for the United Nations Environment Programme, and, in response to an offer by the Government of Kenya, has, by resolution 3004 (XXVII) of 15 December 1972, decided that the Environment Secretariat shall be located at Nairobi;

Considering that the Convention on the Privileges and Immunities of the United Nations adopted by the General Assembly of the United Nations on 13 February 1946, to which the Republic of Kenya is a party, is ipso facto applicable to the United Nations Environment Programme;

Considering that it is desirable to conclude an agreement, complementary to the convention on the Privileges and Immunities of the United Nations, to regulate questions not envisaged in that Convention arising as a result of the establishment of the headquarters of the United Nations Environment Programme at Nairobi;

Have agreed as follows:

Article I

Definitions

Section – 1

In this Agreement,

1. (a) The expression “the UNEP” means the institutional and financial arrangements for the United Nations Environment Programme established by the General Assembly of the United Nations in resolution 2997 (XXVII) of 15 December 1972, and such other institutional and financial arrangements as may from time to time be made for the United Nations Environment Programme.

CONSCIOUS of the need to maintain flexibility and adaptability in the management of the CITES Secretariat and in the provision of services to the Parties to the Convention;

AWARE that the responsibilities and functions of the Standing Committee and the Executive Director of the United Nations Environment Programme (UNEP) with regard to the implementation of Articles XI and XII of the Convention need to be clarified;

RECOGNIZING that the decisions of the Conference of the Parties shall guide the Implementation of CITES and management of its Secretariat;

DESIRING to further improve the relationship between CITES and UNEP; and

RECOGNIZING that the 37th meeting of the Standing Committee recommended that the Agreement between the Standing Committee and the Executive Director of UNEP, signed in June 1992, be revised;

The CITES Standing Committee and the Executive Director of UNEP agree as follows:

Basic Principles

1. 1. The Executive Director will act in conformity with the provisions of Articles XI and XII of the Convention and the rules and regulations of the United Nations on these and other functions as may be entrusted to the Secretariat by the Parties. The Executive Director shall ensure that the Secretary General implements the policy guidance of the Standing Committee in exercising the functions of the Secretariat in accordance with Articles XI and XII of the Convention, and other functions as may be entrusted to the Secretariat by the Parties.

2. 2. The Executive Director will inform the Standing Committee in advance of any significant action with respect to the Secretariat which may affect the interests of the Parties or the efficient administration of the Convention, and will consider carefully the views the Standing Committee presents to him/her on such actions.

3. […]

WHEREAS the Second Meeting of the Conference of the Parties of the Convention on Biological Diversity accepted in decision 11/19 on 17 November 1995 in Jakarta the offer of Canada, as contained in document UNEP/CBD/COP2/Rev.1. and established under Article 24 of the Convention;

WHEREAS the Convention on the Privileges and Immunities of the United Nations to which Canada has been a party since 22 January 1948, applies to United Nations officials servicing the Secretariat;

NOTHING decision 1/4 contained in document UNEP/CRD/COP/1/17 of the Conference of the Parties of the Convention designating UNEP to carry out the functions of the Secretariat of the Convention;

NOTHING further the undertaking of the Government of Canada to ensure the availability of all the necessary facilities and conditions to enable the Secretariat of the Convention on Biological Diversity to perform its functions, including its scheduled programmes of work and any related activities;

DESIRING, therefore, to conclude an Agreement regulating matters resulting from the establishment in Montreal, Canada of the Headquarters of the Secretariat of the Convention on Biological Diversity;

THE SECRETARIAT OF THE CONVENTION ON BIOLOGICAL DIVERSITY AND THE GOVERNMENT OF CANADA, here in after referred to as the “Parties”

HAVE AGREED as follows:

Article 1

Definitions

In this Agreement:

1. (a) “Convention” means the Convention on Biological Diversity cane at Rio de Janeiro on 5 June, 1992 and entered into force on 29 December 1993;

2. (b) “Executive Secretary” means the Official of the Secretariat who is the Head of the Secretariat, in conformity with decision 1/4 of the Conference of the Parties contained in document UNEP/CBD/COP/1/17;

3. […]

Introduction

Multilateral treaty making has emerged as one of the important sources of international law. It does not appear to be sheer coincidence that the International Court of Justice (ICJ), while dealing with a “dispute” submitted to it, is expected to apply “international conventions.” The Statute of ICJ has not laid down any order in which the Court is expected to apply various sources of international law. Still, placing an international convention at the top of the list of sources available to the court is a testament to the value and emergence of treaties as the most important source. It is also no less significant that the United Nations (UN) Charter has sought to give “respect for the obligations arising from treaties,” a pride of place in the preamble itself, and has placed onus on its plenary organ (the General Assembly) to encourage the progressive development of international law and its “codification.” Thus, based on this crucial mandate, the General Assembly established the International Law Commission (as a subsidiary organ of the Assembly).

During the initial decades after the UN came into being, there was a flurry of movement to codify a host of established customary principles of international law. It did unleash an era of codification and laid roots for the giant treaty-making machine for the future. It seems that the UN system itself (for instance, “specialized agencies” like the International Labour Organization [ILO] and the International Maritime Organization [IMO]) regularly churned out conventions that met the needs of their member states to regulate specific areas (like occupational health and safety, maritime safety, and pollution).

The Government of the French Republic and the United Nations Educational, Scientific and Cultural Organization,

Considering that by Resolution 28 adopted at its 6th session, the General Conference of the United Nations Educational, Scientific and Cultural Organization decided to build the permanent headquarters of the Organization at Paris,

Considering further that the Government of the French Republic has for this purpose by contract dated 25 June 1954 granted to the United Nations Educational, Scientific and Cultural Organization the use of such land as is necessary for the establishment of its permanent headquarters and the construction of its buildings, and

Desiring to regulate, by this Agreement, all questions relating to the establishment of the permanent headquarters of the United Nations Educational, Scientific and Cultural Organization in Paris and consequently to define its privileges and immunities in France,

Have appointed as their representatives for this purpose the following, that is to say: For the United Nations Educational, Scientific and Cultural Organization (hereinafter called ‘the Organization’), Mr. Luther H. Evans, Director-General; For the Government of the French Republic, Monsieur Guérin de Beaumont, State Secretary for Foreign Affairs, who have agreed as follows:

Agreement between the Government of the French Republic and the United Nations Educational, Scientific and Cultural Organization regarding the Headquarters of UNESCO and the Privileges and Immunities of the Organization on French Territory

[Signed in Paris on 2 July 1954; Came into force on 23 November 1955 in accordance with Article 32 thereof.

There is an active link between development of law and the institutional mechanisms that emerge from it. In this context, the establishment of a multilateral regulatory approach in the field of environment is no exception.

The process of centralized legalization concerning sectoral environmental problems has almost been institutionalized, especially in the past three decades. Despite the fact that this multilateral lawmaking modus operandi has worked in a piecemeal, ad hoc, and sporadic manner, it has contributed in thickening the web of treaties as the most important source of international environmental law. It has emerged as a “predominant method” of regulating state behavior on a global problematique. Unlike the traditional method of resorting to development of a customary norm, states revert to treaties for the sake of, among other goals, convenience and certainty of the law, as warranted by the contingencies of a specific issue.

It appears that lawmaking on environmental issues is greatly facilitated through treaties because of scientific uncertainties and the sense of urgency involving environmental matters. As a result, multilateral environmental agreements (MEAs) have emerged as a unique technique, with flexibility, pragmatism, a built-in lawmaking mechanism, as well as a consensual approach to norm setting. MEAs are also regarded as part of a broader trend of an “increasingly more complex web of international treaties, conventions, and agreements.”

Treaty making on environmental issues has developed into a practice largely because of the inclination of states to resort to multilateralism in addressing global problems.

The Government of the Federal Republic of Germany the United Nations and the Secretariat of the Convention on the Conservation of Migratory Species of Wild Animals,

Whereas the United Nations Environment Programme (UNEP) provides secretariat services for the Secretariat of the Convention on the Conservation of Migratory Species of Wild Animals (CMS), in accordance with Article IX of the Convention,

Whereas the Government of the Federal Republic of Germany has a special responsibility towards the Convention and its Secretariat, in view of its role in the Convention's early development and its present function as Depositary,

Whereas paragraph 2 of Article 4 of the Agreement between the Federal Republic of Germany and the United Nations concerning the Headquarters of the United Nations Volunteers Programme concluded on 10 November 1995 provides that it “shall also apply mutatis mutandis to such other Offices of the United Nations as may be located in the Federal Republic of Germany with the consent of the Government”,

Whereas paragraph 3 of Article 4 of the Agreement between the Federal Republic of Germany and the United Nations concerning the Headquarters of the United Nations Volunteers Programme concluded on 10 November 1995 provides that it “may also be made applicable mutatis mutandis to other inter-governmental entities, institutionally linked to the United Nations, by agreement among such entities, the Government and the United Nations,”

Introduction

The word institution indicates “the act or an instance of instituting” “an established law, practice or custom.” Thus, the process of instituting or establishing something results in an institution. In the national context, the process of institution building is much more smooth and orderly than at the international level, where sovereign states are the primary actors. In a national society, institutions emerge out of the needs of citizens at a given time. The practice of setting up an organization is just one such instance of establishing institutions. At the national level, governmental institutions derive their mandate as well as powers and competences from a statute enacted by the legislature. In the case of intergovernmental institutions, this is especially so as they derive their operational basis and raison d'être from an international instrument.

Organic Link

In general, the growth of law and the growth of institutions have been complementary to each other, and, in fact, do brook changes, keeping in view the needs of human society. Thomas Jefferson, one of the philosophers and architects of the American revolution, made a pertinent observation about the adaptability of institutions to societal requirements:

Introduction

As discussed in the previous chapter, the twentieth century witnessed unprecedented growth in the making of treaties, not only as codification exercises for existing customary state practices, but also as regulation of numerous subjects that confront the states. An important outcome of intergovernmental institutionalized cooperation in environmental matters has been the growth of a unique body of treaty-based and other rules. The advent of such environmental agreements seems to carry the “genes” and imprint of the maker/initiator. The methodology of treaty making in this field stands apart from that in other areas of international law as it reflects the changing needs of sovereign states in an increasingly complex world. It has also heralded qualitative and quantitative change in the character of international environmental law. This phenomenon of multilateral environmental agreements (MEAs) needs much closer legal scrutiny regarding its nature and character, the uniqueness and content of MEAs, and the lawmaking approach followed in marathon global environmental conferences.

Proliferation of Agreements

MEAs have emerged as the “predominant legal method for addressing environmental problems that cross national boundaries.” The pace at which the multilateral instruments concerning environmental issues are growing remains unprecedented. From the earliest reported multilateral treaty concerning the environment in 1868, approximately 502 international treaties and other agreements have taken shape. Of these, 302 (a staggering number, almost 60 percent) have been entered into since the 1972 Stockholm Conference.

The Federal Republic of Germany and the United Nations

Whereas the Executive Board of the United Nations Development Programme, by its decision 95/2 of 10 January 1995, endorsed the proposal of the Secretary-General to accept the offer of the Government of the Federal Republic of Germany to relocate the headquarters of the United Nations Volunteers Programme to Bonn;

Whereas paragraph 1 of article 105 of the Charter of the United Nations provides that “the Organisation shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes”

Whereas the Federal Republic of Germany is a party since 5 November 1980 to the Convention on the Privileges and Immunities of the United Nations;

Whereas the Federal Republic of Germany agrees to ensure the availability of all necessary facilities to enable the United Nations Volunteers Programme to perform its functions, including its scheduled programmes of work and any related activities;

Desiring to conclude an Agreement regulating matters arising from the establishment of and necessary for the effective discharge of the functions of the United Nations Volunteers Programme in the Federal Republic of Germany;

Have agreed as follows:

Article 1

Definitions

For the purpose of the present Agreement, the following definitions shall apply:

1. (a) “the Parties” means the United Nations and the Federal Republic of Germany;

2. (b) “the United Nations” means an international organization established under the Charter of the United Nations;

3. (c) “the Secretary-General” means the Secretary-General of the United Nations;

4. (d) “the UNV” or “the Programme” means the United Nations Volunteers Programme, a subsidiary organ within the terms of Article 22 of the Charter of the United Nations, established in 1970 by General Assembly resolution 2659 (XXV) of 7 December 1970;

5. […]

Whereas the first session of the Conference of the Parties of the UNFCCC, by its decision 16/CP. 1 of 7 April 1995, decided to accept the offer of the Federal Republic of Germany to host the Convention secretariat;

Whereas the Conference of the Parties to the United Nations Framework Convention on Climate Change, in its decision 14/CP. 1 of 7 April 1995, further decided that “the Convention secretariat shall be institutionally linked to the United Nations, while not being fully integrated in the work programme and management structure of any particular department or programme [of the United Nations]”

Whereas the General Assembly, by its resolution 50/115 of 16 February 1996, endorsed the institutional linkage between the Convention secretariat and the United Nations; as adopted by the Conference of the Parties;

Whereas Article 4 paragraph 3, of the Agreement between the United Nations and the Federal Republic of Germany concerning the Headquarters of the United Nations Volunteers Programme concluded on 10 November 1995 provides that it “may also be made applicable, mutatis mutandis, to other intergovernmental entities, institutionally linked to the United Nations, by agreement among such entities, the Government and the United Nations”

Whereas Article 4 paragraph 2 of the Agreement between the United Nations and the Government of the Federal Republic of Germany concerning the Occupancy and Use of the United Nations Premises in Bonn concluded on 13 February 1996, inter alia, provides that “[t]he United Nations shall make available appropriate space in the Premises to the secretariat of the United Nations Framework Convention on Climate Change taking into account the offer of the Government to establish the headquarters of its secretariat in Germany … ”,

Introduction

The practice of multilateral environmental regulation is quite diffused, highly fragmented, and “poorly coordinated.” It has effectively ushered the states into an era of institutionalized international cooperation. Because the marathon practice has assumed the form of a process – rather than a one-time affair – it poses a challenge for the sovereign states to remain constantly engaged. A series of factors seems to be responsible for nurturing this vibrant process. It comprises not only an institutionalized regulatory approach to address sectoral environmental issues but also a set of institutions that are thought to be necessary to ensure that contracting state parties realize the objectives of the specific sectoral regulatory process at work.

In fact, the institutional actors have been regarded as “critical forces in shaping ‘real world’ environmental governance systems.” Such intergovernmental institutional structures are pressed into service for a variety of purposes. Moreover, when a multilateral regulatory framework is put into place, it is built with its own set of institutional structures. This regulatory framework includes political bodies such as conference and meeting of the parties, scientific and technical bodies, funding mechanisms, and the secretariat. As compared to other institutional structures within a specific legal regime, the secretariat has become almost indispensable. It symbolizes a structural approach at work and is the most visible arm of the regulatory framework. The practice and procedures revolving around secretariat are largely governed by the international law of international institutions.

The practice of multilateral environmental regulation is an inescapable by-product of the age of multilateralism. It seeks to ensure that the sovereign states adopt the spirit of multilateralism and come together on a common platform to address some of the global problematique. It is also largely based on the premise that global problems need global solutions. In this context, there has been a transition in the attitude of the states from the era of “common heritage” to the “common concerns of humankind.” It is possible that the sheer identification of some of these common concerns could be colored by the promotion of the national interest of a state or a group of states, economic factors, technology control regimes, financial jugglery, or just a quest for engaging the key countries in the midst of their developmental journey. It is also noteworthy that, in this age of multilateral regulation, the processes are also influenced by scientific reports. As a result, this admixture produces unique products that are now popularly described as multilateral environmental agreements (MEAs).

One of the salient facets of MEAs is that they provide an institutionalized platform for sovereign states to engage in addressing a commonly identified problem. This platform in practice revolves around a regulatory framework of a sectoral environmental agreement. The mushrooming growth in the number of MEAs in the past four decades is a testimony to this process at work.