2.1 International environmental agreements and conventions

Introduction

Environmental problems are no respecters of national boundaries, yet it remains the case that the principal actors at international level are nation states. Traditionally, the only means available for regulating the behaviour of nation states has been through a system of international law, codified in treaties and conventions. Since the beginning of the century more than 170 multilateral environmental treaties and instruments have been established, covering subjects ranging from the atmosphere and the marine environment, to nature conservation and transboundary watercourses. The vast majority of these agreements are regional in their scope, and many of them apply only to Europe. A list of relevant international conventions and agreements can be found in Annex 1.

Contributing to the development of many of these the agreements is a confusing array of international organisations and agencies. The major players are listed in Box 1. They include world organisations with a pan-European dimension (for example, the UN Economic Commission for Europe - UN-ECE); predominantly economic organisations with a membership including, but extending beyond western Europe, (e.g. the OECD); organisations that were originally exclusively western European but are now beginning to include countries of central and eastern Europe (CEE) (e.g. the Council of Europe); and a network of separate organisations and agencies that have recently come together under the pan-European umbrella of the 'Environment for Europe' process (see Section 3.4).

Box 1: International institutions with an environmental role

The effectiveness of international environmental organisations and agreements

Many of the organisations listed in Box I have made significant contributions to environmental co-operation in Europe. For example, the United Nations Economic Co-operation for Europe (UN-ECE), which brings together in one forum all 55 countries from both western and eastern Europe, has elaborated nine regional legal instruments aimed at environmental protection. These cover air and water pollution -including the 1979 Convention on Long-Range Transboundary Air Pollution (CLRTAP - see Box 2) industrial accidents and environmental impact assessment. In addition, the UN~ECE has played a key role in furthering the development of pan-European environmental co-operation in the 'Environment for Europe' process (see Section 3.4).

Box 2: The Convention on Long-Range Transboundary Air Pollution

Despite such achievements, the effectiveness of many of these organisations has been limited by one or more of the following factors:

• the environment forms only a small part of their overall activities;
• with the exception of the Environment for Europe process, their work is confined to specific actions on a small number of issues;
• they make use of less binding instruments which may not tackle the real issues effectively.

Examples of the more effective international agreements include the Vienna Convention on the Protection of the Ozone Layer, and the Convention on Long-Range Transboundary Air Pollution (see Boxes 2 and 3). But the success of other agreements has been mixed.

Box 3: The Vienna Convention for the Protection of the Ozone Layer

A key problem with all international environmental agreements is that their success ultimately depends on the willingness of 'sovereign' nation states to agree to them and implement them properly. As a result, treaties incorporating detailed targets and structures have often taken years to draft, and even longer to ratify. The growing sense of urgency in addressing increasingly complex problems has led to a shift in favour of 'softer' conventions which can be drafted and signed within a relatively short time frame. These may include codes of practice, guidelines or frameworks which allow wide discretion in interpreting their precise requirements. They may be easier to agree, but their very flexibility can reduce their effectiveness.

Other factors limiting the success of conventions include:

• the scope of the instrument itself and the extent to which it adequately addresses the issue;
• the limited number of parties to an agreement;
• the effectiveness of monitoring and enforcement.

The scope of agreements

Effective international action relies on the availability of comprehensive and reliable data to identify particular problems, establish their causes, and reveal gaps and failures in existing policies and actions. It was, for example, scientific observation that first revealed the hole in the ozone layer over Antarctica. A start has been made in establishing reliable data collection systems but much more needs to be done.

The lowest common denominator — are targets demanding enough?

Conventions rely on a convergence of interests between sovereign nation states. As a result, agreements often reflect the ambitions and targets of the 'lowest common denominator'. As the number of parties to a convention grows, so the precise scope and effectiveness of the agreement is reduced. The 1992 Climate Change Convention is just one example (see Box 4).

Box 4: The Climate Change Convention

The number of signatories

One advantage of international conventions and agreements is their potentially-wide field of application. In practice, however, this may be limited for several reasons, including

• the costs to individual countries of participation;
• the limited availability of technical know-how.

Especially among the countries of central and eastern Europe, severe resource shortages have had a major impact on their ability to participate in environmental conventions

The concept of 'burden sharing' as a means of evening out the often heavy costs of pollution reduction has gained ground recently, particularly in relation to the Convention on long-range Transboundary Air Pollution (CLRTAP). During negotiations leading to the 1994 Oslo Protocol on further SO2 reductions, the establishment of an Acidification Fund was examined. Under the proposed fund, countries in transition would receive money based on their GDP and abatement costs, with richer nations contributing on a similar basis.

In addition, countries in transition require improved technical assistance if international standards are to be met. This can be made available through clearing-houses, referral services, exchange programmes or technology rights banks.

Monitoring and enforcement

Perhaps the weakest aspect of international environmental conventions lies in their implementation and enforcement. Parties to international agreements generally find external monitoring and enforcement systems unacceptable, and wish to control monitoring themselves. Information gathered in this manner may be incomplete or inaccurate due to differing monitoring methods and standards.

Some progress has been achieved with the establishment of the OECD's Environmental Performance Review Programme, the principal aim of which is to help countries improve their performance through peer review. For European countries outside the OECD, similar environmental review programmes are to be carried out within the framework of the UN-ECE. But environmental performance reviews are time-consuming and depend on the willingness of countries to participate.

The UN-ECE is currently monitoring compliance with each of its instruments and will present its findings to their Signatories or Parties. The 1994 CLRTAP Protocol on Further Reduction on Sulphur Emissions includes the establishment of a formal Implementation Committee to keep the issue of compliance continually under review.

If monitoring reveals the failure of a party to implement the obligations of an international convention, there is however little that can be done in the absence of effective enforcement mechanisms. In the final analysis, it may be public opinion alone that can exert pressure on states to respond more vigorously to environmental challenges, to participate in conventions and to live up to their environmental obligations. But the public requires far wider access to information about international conventions and agreements and their effectiveness, an area where, traditionally, public and parliamentary involvement has been minimal.

2.2 EU environmental policy — achievements and limitations

Introduction

One of the main strengths of the European Union is that - unlike other international organisations - it is a legislative body. When it acts in a legislative capacity, its Directives, Regulations and Decisions are binding on the Member States, and can be enforced by the EU's Court of Justice.

This legislative — or 'command and control'- approach has formed the basis of the EU's environmental policy over the past 20 years. There are now more than 300 Directives and Regulations designed to respond to a wide range of problems, including many (but not all) of the twelve priority problems listed in Europe's Environment.(1)
EU legislation covers

• water, air and noise pollution
• waste management
• harmful substances
• radioactivity
• the protection of wildlife and the countryside
• global issues
• environmental assessment and access to information

The rapid development of the EU's environmental policy is indicated by Figure 1.

Figure 1: EU environmental legislation adopted each year

The influence of the Community's environmental legislation extends well beyond the borders of its current twelve Member States. Even before some of them assume full EU membership, all seven countries of the European Free Trade Association (EFTA) apply the main features of the EU's environmental policy, following the formation of the European Economic Area (EEA) in 1993. The EEA extends the EU's single market and associated policies to a total of 19 countries stretching from the Arctic to the Mediterranean.

Meanwhile, in central and eastern Europe (CEE), Association Agreements with Poland, Hungary, the Czech Republic, Slovakia, Bulgaria and Rumania require some movement towards EU environmental standards. Eventual EU membership for CEE applicant countries will require the full application of Community environmental legislation (although in some cases with lengthy transitional periods). Substantial financial support for a number of environmental projects and programmes in the region is already available through the EU's PHARE programme.

Since 1973, EU environmental legislation has developed within a framework set by series of Environmental Action Programmes. These periodically set out how the EU proposes to develop its environmental policy and legislation over the coming four or more years. The fifth such programme, entitled Towards Sustainability: A European Community Programme of Policy and Action in relation to the Environment and Sustainable Development - was published in 1992.(2) It sets out a new approach towards tackling the environmental challenges facing Europe in the period to the year 2000, and is described more fully in Section 3.3 below.

A point of departure for the fifth programme is that the EU's traditional approach to protecting the environment has its limitations. It is beyond the scope of this paper to attempt a complete evaluation of the EU's environmental policy, but some preliminary conclusions can be made. A few of the EU's more notable successes are listed in Box 5.

Box 5: Achievements of EU environmental legislation

Limitations of current EU environmental policy

Despite these achievements, the Commission itself has recognised the weaknesses of EU environmental policy and is taking steps to improve matters.

Over the past twenty years, EU legislation has developed in an ad hoc manner according to a shifting policy agenda. Individual Directives sometimes reflect a lack of adequate scientific data and/or unsatisfactory political compromises. As a result

• there are significant gaps in coverage;
• legislation sometimes sets insufficient objectives;
• legislation focuses on individual environmental media rather than on the environment as a whole.

In addition, the impact of many items of legislation is gravely weakened by inadequate implementation an enforcement.

Gaps in Coverage

• The Community has so far been unable to develop a satisfactory EU response to the problem of global climate change. While the EU as a whole is committed to reducing carbon dioxide emissions to 1990 levels by the year 2000, no clear strategy for achieving this has yet been agreed at Community level. Information available to the Commission on Member States' current CO2 emission and reduction programmes is limited, despite the requirements of Directive 93/389 establishing a C02 monitoring mechanism. Nevertheless, it suggests that the stabilisation commitment cannot be met without further reductions beyond those planned. Meanwhile, Commission proposals for a carbon/energy tax are stalled in the Council, and an EU approach to limiting emissions of another important greenhouse gas - methane - has yet to be developed.
• Only a start has been made to tackling the problem of poor urban air quality. Directives setting air quality standards for lead, smoke and sulphur dioxide and nitrogen dioxide are an important first step (although their effectiveness has been limited by inadequate monitoring and inconsistent methods of measurement). Measures are needed to tackle a wide range of other pollutants with serious health effects such as particulates, benzene, and polyaromatic hydrocarbons. A draft air quality framework Directive proposes new measures on these and other substances, but has yet to be agreed.
• Emission limit values and quality standards for dangerous substances in water have been set for only a handful of substances in 'daughter' Directives developed in the framework of Directive 76/464. The Commission has identified a priority list of 129 of these chemicals, and yet EU legislation in place covers only 17 of them.
• Other notable gaps include the lack of comprehensive approach to tackling the serious problem soil degradation - both in respect of erosion and contamination. There is so far also no EU requirement for Member States and industry to establish a Polluting Emissions Register, containing a list of all the pollutants emitted to the environment by industrial installations in the course of their activities.

Limited objectives of some EU legislation

In addition to these gaps in coverage, many items of EU legislation do not go far enough to be properly effective.

• The EU's principal response to the problem of acidification is the 1989 Directive 88/609 limiting SO2 and NOx emissions from large combustion plants. In addition to setting emission standards for new plants, the Directive also requires individual Member States progressively to reduce emissions from existing plants by varying amounts, so that overall EU emissions of SO2 should be reduced by 58 per cent by 2003. Recent research on 'critical loads' - the level of pollution that particular ecosystems can tolerate without suffering further damage - indicates that the Directive's targets are set too low to prevent continuing damage to Europe's forests, lakes and rivers. Moreover, the reductions in emissions required of particular Member States do not reflect their relative contributions to acidification damage.
• Some 70 per cent of the Community's drinking water comes from groundwater sources, yet as Europe's Environment indicates, groundwater continues to suffer from contamination which in most cases is irreversible. The EU's Directive 80/68 on the protection of groundwater caused by certain dangerous substances has not succeeded in reversing this trend. Its requirements for controlling discharges particularly from diffuse sources - and for monitoring and reporting are not sufficiently robust to prevent further damage.

Single-medium approach

EU environmental legislation has generally sought to control emissions to, or protect the quality of, individual media - air, water and (to a far lesser extent), soil. This 'single medium' approach fails to acknowledge that the environment needs to be considered as a whole: controls on emissions to one medium can often result in a shift of pollution to another. For example, reducing acid emissions from the stacks of large combustion plants through the installation of flue-gas desulphurisation (FGD) equipment can lead to increases in water or soil pollution. Integrated pollution control (IPC) by contrast seeks to reduce pollution to the environment as a whole. Proposed EU legislation requiring Member States to introduce a system of integrated pollution prevention and control (IPPC) has yet to be agreed by Member States.

Failures of implementation and enforcement

One essential precondition for effectiveness is that legislation is properly implemented and enforced on the ground. Failure to put into effect the requirements of EU environmental directives is a now a serious problem. In 1993 the number of suspected infringements of environmental Directives - almost 400 - came second only to those relating to the internal market.(3)

Key items of legislation that have not been properly implemented include Directive 79/409 on the Conservation of Wild Birds, Directive 85/337 on environmental impact assessment, and several Directives on water and waste.

An essential first step towards tightening up on implementation is to improve the availability of information about developments in each Member State. The only Member State for which an independent, regular and complete review is undertaken of the manner in which all items of EU environmental legislation are implemented, and of their impact on practice, is the UK.(4)

Many environmental directives include varying requirements that governments report regularly to the Commission on how they are implementing the legislation. However, these reports may be compiled only infrequently, incompletely, or not at all. As a result, information essential for gauging the effectiveness of EU legislation is denied both to the Commission and the general public. The Standardised Reporting Directive 91/692 seeks to place Member States' reporting obligations on a sounder footing, but it remains to be seen how effective this will be.

In the absence of such basic information, the Commission has been obliged to rely on complaints from other Member States, MEPs, businesses, NGOs or individuals as the basis for enforcement action.

Under the terms of its instituting. Regulation 1210/90, the question whether the European Environment Agency should have a part to play in monitoring the implementation of Community measures in the Member States was postponed for decision until the completion of a review of the Agency's first two years of operation. Whether or not the Agency is eventually to be given a formal role in the monitoring and enforcement of EU legislation, it would seem essential that the Agency should undertake comparative reviews of policy implementation to provide information and guidance to the Commission and the Member States on the effectiveness of different policy measures and approaches.