This article is written by Rashmi C, pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).
Environment challenges affect more than one nation and can be addressed only through international cooperation. Environment agreements are one of the most effective and time-tested ways to arrive at a common arrangement by nations to solve such multi-territory problems.
Environmental agreements have huge ramifications, not just from an environmental perspective, but also from political, economic, and geological perspectives due to their vast scope. These are generally principle-based agreements that facilitate the protection, preservation, and management of the natural environment and form the basis of many environmental protection laws of the signatory member states. Due to the enormous importance that environment agreements hold in protecting and preserving sustainable, safe, and healthy surroundings, it is important that they are well-rounded, comprehensive, and include all relevant clauses so as to enable effective implementation by member states, and thus achieve the purpose set out by them.
International environmental agreements, also termed multilateral environmental agreements, are treaties that manage or regulate the human impact on the environment in order to protect it and ensure that the environment that we live in is sustainable for other living and non-living beings, both for the present and future. The agreements are binding only on the countries that have ratified them but are nevertheless important in the context of international environmental law.
Elements of international environmental agreements
For a treaty or agreement to be termed as an “International Environment Agreement”, the following elements should be present:
- International nature
The agreement should be between Governments of more than one country. It can be bilateral (meaning, between two countries), trilateral (meaning, between three countries) or multilateral (meaning between more than three countries).
As Per the Organization for Economic Co-operation and Development (OECD), the term “environment” is the totality of all the external conditions affecting the life, development, and survival of an organism. The international environmental agreements database project divides environment agreements into the following environmental categories:
- Nature – Focusing on the conservation, management and protection of natural resources and systems.
- Pollution and climate – Focusing on prevention and protection of natural resources like air, soil, freshwater and saltwater resources and systems, from pollution. Also includes treaties on noise pollution.
- Species – Focusing on the interaction of human beings with plants, animals, insects, aviators, marine life, reptiles and other living beings.
- Freshwater resources – Focusing on the regulation, protection, conservation, management and enhancement of freshwater resources such as lakes, rivers, ponds, streams, etc.
- Habitat and oceans – Focusing on maintaining different ecosystems and habitats.
- Energy, nuclear issues, and conflict – Focusing on energy production, nuclear weapon-free zones, environmental and biological weaponry (such as bacteriological, toxin and chemical weapons).
It includes a set of promises made, and accepted, by the member states, to be implemented within their territories. However, the terms such as “convention” and “protocol” are also used, causing confusion in understanding.
A convention refers to an actual meeting between member states where they arrive at a conclusive agreement or treaty. It can also refer to wide-scoped agreements among member countries.
A protocol, on the other hand, refers to additional rules, regulations, standards, or restrictions, usually derived from conventions. It acts as a further amendment to an existing convention. Member states that are signatories to a convention are not necessarily bound by a protocol unless they ratify it distinctly.
Boilerplate clauses in international environment agreements
Every agreement needs to answer the “why”, “what”, “how”, “who” and “when” questions for it to be readable, understandable, acceptable, implementable and practicable. For this purpose, environmental agreements contain certain standard stipulations, provisos, or terms, called “clauses” or “articles.”
Boilerplate clauses refer to the standard or general clauses that form part of every agreement, including environmental agreements. These clauses do not deal with the specific subject matter itself, but contain standardized text, acting as ancillary clauses to the main clauses of the agreement.
Environmental agreements are customized according to the subject matter they deal with. The provisions form the body of the agreement, but only when the boilerplate clauses are included will the agreement become whole. Some of the important boilerplate clauses include:
Denouncement clauses specify the procedure by which a member may opt-out of the contract and the compliance requirements for the same. Denouncement clauses provide an option for member states to move out of, or exit, the agreement. In practice, however, multiple rounds of consultation and discussions take place between the signatory member states before a particular member state finally decides to denounce an agreement.
Articles 8(2) and 8(3) of the European Agreement on the Restriction of the Use of Certain Detergents in Washing and Cleaning Products states as below:
“(2). Any contracting party may, in so far as it is concerned, denounce this Agreement by means of a notification addressed to the Secretary-General of the Council of Europe.
(3) Such denunciation shall take effect six months after the due date of receipt by the Secretary General of such notification.”
The ratification clause is based on the Doctrine of Ratification, which is applicable in a situation where a person has committed an act or abstinence on another person’s behalf without his knowledge or consent. In such situations, the person on whose behalf such an act or abstinence is done, may either accept the act or disown it.
In environment agreements, ratification is a means by which a state, which was not a party to the original agreement, can become a party to it and be bound by its terms and articles. It provides a means for acceptance and adherence to international environmental conventions and protocol by nations that originally were not a part of them. It also requires every member state to ratify the same, and submit the Instrument of Ratification to the governing agency.
The ratification clause of the Convention Concerning the Status of the Senegal River provides as below:
“The present convention will be subject to ratification by each Contracting State in accordance with its own constructive forms, the Instrument of Ratification will be deposited with the Government of Islamic Republic of Mauritania which will notify each Contracting Party thereof.”
The enforcement clause, also termed “Entry Into Force” specifies the date, and the manner in which the agreement shall come into force. It answers the question of “when” an environment agreement shall become applicable and enforceable.
The enforcement clause of the International Convention for the Prevention of Pollution from Ships, 1973 states as below: “The Convention shall enter into force within twelve months after the date on which not less than 15 states, the combined merchant fleets of which constitute not less than fifty percent of the gross tonnage of the world’s merchant shipping, have become parties to it in accordance with Article 13.”
Environmental treaties are usually very long-term agreements, with some having been in force for more than a century. They are framed based on the circumstances prevailing at the time of framing them. However, over time, some, or a large part, of the treaties may not be relevant to the current circumstances. In such cases, they undergo additions, removals, rescissions, or such other changes. These changes or modifications, termed as “amendments”, are facilitated by the Amendments Clause. The clause establishes the procedure for making amendments to the original agreement.
The “Adoption of Amendments and Annexes to the Protocol, and Amendments to the Annexes” clause of the Protocol on Environmental Impact Assessment in a Transboundary Context to the Framework Convention for the Protection of the Marine Environment of the Caspian Sea states as below:
“Any contracting party may propose amendments and annexes to this Protocol, as well as amendments to the annexes. These amendments and annexes shall be adopted by the Contracting Parties and enter into force in accordance with Articles 24, 25, and 34 of the Convention.”
The depositary clause plays a deeply important role in international environmental agreements, primarily due to multiple states being involved in its creation, implementation, and safekeeping. The clause specifies the official custodian for the original document of the agreement or treaty. Generally, heads of inter-governmental agencies are the designated depositaries of such agreements.
The depositary clause of the Framework Agreement on the facilitation of cross-border paperless trade in Asia and the Pacific states as below:
“The Secretary-General of the United Nations shall be designated the depositary of the present Framework Agreement”.
- Dispute settlement
While member nations would have had comprehensive discussions and consultations prior to signing or ratifying an environment agreement, there may arise challenges, disputes, conflicts, or incorrect understandings in the application or implementation of the agreement terms. To resolve such disputes, the settlement of disputes clause is included in the agreements.
The Dispute Settlement Clause of the International Convention for the Prevention of Pollution from Ships, 1973 states as below:
“Any disputes between two or more Parties to the Convention concerning the interpretation or application of the present Convention shall, if settlement by negotiation between the parties involved has not been possible, and if these parties do not otherwise agree, be submitted upon request of any of them to arbitration as set out in Protocol II to the present Convention.”
The language clause specifies the official languages in which the agreement document is published and available.
The Language Clause of the International Convention for the Prevention of Pollution from Ships, 1973 states as below:
“The present Convention is established in a single copy in English, French, Russian and Spanish languages, each text being equally authentic. Official translations in the Arabic, German, Italian and Japanese languages shall be prepared and deposited with the original.”
Above are some of the boilerplate clauses to an international environment agreement. Although these clauses may seem insignificant or secondary to the main clauses, they are highly important and complete the agreement, and make it easier to understand, implement and achieve the objectives set out by the agreement.
It cannot be denied that the boilerplate clauses can be drafted to benefit either of the parties involved. Therefore, it is essential to carefully examine the clauses provided at the fag end of the agreements before signing on the dotted lines.
Transplantation of clauses from one agreement to another without independently considering the operational mechanics of each agreement will be at the peril of parties involved and the consequences of the same would be anyone’s guess.
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