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CHAPTER 39: INTERNATIONAL LEGAL INSTRUMENTS AND MECHANISMS

This chapter of Agenda 21 deals with the international law-making process, related problems (particularly in regard to developing country participation in this process), and the necessary reforms. PrepCom IV had deferred several contentious issues to the UNCED for final resolution, including: the possible use of unilaterally set environmental standards as barriers to trade; compliance with international agreements; prevention of deliberate large-scale destruction of the environment (the so-called "environmental crimes" provision); negotiation of a nuclear safety convention; and dispute prevention.

Malaysian Amb. Ismail Razali was re-appointed chair of the instruments contact group, which met four times to negotiate these outstanding issues. The most difficult of issues was the environmental crimes provision. At both PrepCom IV and UNCED, the US and many G-77 members insisted adamantly that the provision be limited to times of war. The European Community led the cause for a broader formulation to include times of peace as well. The US argued that a broader formulation would undermine law of war discussions currently taking place in the UN. G-77 countries argued that the broader formulation would authorize the UN to unduly scrutinize domestic environmental practices. After a hard-fought battle, it was agreed to restrict the provision to times of war. The trade issue was resolved by quoting paragraph 123 from the Oceans chapter that states, in part, "States recognize that environmental policies should deal with the root causes of environmental degradation, thus preventing environmental measures from resulting in unnecessary restrictions to trade...should trade policy measures be found necessary for the enforcement policies...the following principles and rules could apply: non-discrimination; trade measures chosen should be the least trade-restrictive; transparency in the use of trade measures; and the need to give consideration to the special conditions of developing countries". The compliance issue was resolved by replacing the term wherever it appeared in the text with the weaker concept of "effective, full and prompt implementation", a formulation supported by the G-77. The dispute prevention issue was resolved by the replacement of the word "prevention" with the word "avoidance", again representing weaker language. The conflict regarding the nuclear safety convention issue was resolved with language that refers to the "vital necessity to ensure safe and environmentally sound nuclear power,... efforts should be made to conclude the ongoing negotiations for a nuclear safety convention in the framework of the International Atomic Energy Agency".

Thus, the programme areas finally agreed to are: Review, assessment and fields of action in international law for sustainable development; Implementation mechanisms; Effective participation in international law making; Disputes in the field of sustainable development.

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