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ENVIRONMENTAL AFFAIRS AND TOURISM PORTFOLIO COMMITTEE
01 March 2000
INTERNATIONAL CONVENTIONS ON THE ENVIRONMENT: A SOUTH AFRICAN PERSPECTIVE
Documents handed out:
Briefing by Mr Kidd
The committee was briefed by Mr M Kidd from the School of Law at the University of Natal. The briefing document is attached below.
International Conventions on the Environment: A South African Perspective.
International Conventions on the Environment: A South African Perspective.
Associate Professor of Law University of Natal Pietermaritzburg
Associate Professor of Law
University of Natal
Many of the most pressing environmental problems facing humankind today are global problems which need to be addressed on an international front, rather than localized issues which can be addressed by individual countries acting alone. For this reason, international environmental law is becoming increasingly important as an instrument in attempting to counter global environmental problems like ozone depletion, climate change, species extinction and desertification.
South Africa, for many years an international outcast, is a party to the majority of international conventions and has an important role to play in international environmental law by virtue of its position as one of the stronger African countries. This paper will provide an outline of the environmental conventions to which South Africa is a party, and provide further detail on certain conventions which are currently in the international spotlight, namely, the Framework Convention on Climate Change (FCCC); the Convention on Biological Diversity (CBD); the Convention to Combat Desertification (CCD); the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES); and the Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention).
Each of these conventions will be examined in turn, and a list of conventions to which South Africa is a party together with a brief outline of the Conventions' scope will appear at the end of the paper.
1. Framework Convention on Climate Change
1. Framework Convention on Climate Change
The FCCC was adopted in New York in May 1992 and entered into force on 21 March 1994. South Africa ratified the Convention on 29 August 1997. The objectives of the FCCC are:
- to stabilize greenhouse gas concentration in the atmosphere to a level that would prevent dangerous anthropogenic interference with the climate system, within a time-frame sufficient to allow ecosystems to adapt naturally to climate change;
- to ensure that food production is not threatened; and
- to enable economic development to proceed in a sustainable manner.
The Convention divides parties into three categories, which determine the obligations of the parties. The categorization essentially divides parties into developed and developing nations. The Convention itself places information and data collecting requirements on all parties, while the developed nations are required to adopt policies and take corresponding measures with the aim of returning to 1990 levels of emissions.
As with many international conventions, the Conference of the Parties (COP) plays the central role in monitoring progress under the FCCC. Whereas the Convention itself did not set any targets or timetables for reduction in greenhouse gases, the first COP at Berlin produced the 'Berlin Mandate', which set out the intention to develop clear 'quantifiable limitation and reduction objectives', to be negotiated at the third session of the COP, in Kyoto, Japan in 1997.
At the Kyoto COP, the parties adopted the 'Kyoto Protocol', which contained agreed quantifiable emissions limitation and reduction objectives (ie targets and timetables), which differed from country to country, the most stringent obligations being placed on the developed countries. The Protocol also provides for emissions trading and joint implementation of the target requirements. These latter two aspects apply only to Annex I countries, which are the developed countries. The Kyoto Protocol will enter into force once ratified by 55 parties. As of 25 October 1999, 16 had ratified it while 84 had signed it.
At the fourth COP in Buenos Aires, the Buenos Aires Plan of Action (BAPA) was adopted, which set a two-year deadline for strengthening FCCC implementation and preparing for the future entry into force of the Kyoto Protocol. The fifth COP in Bonn in late 1999, work continued toward fulfilling the BAPA and it was reported that 'the process recovered vital momentum and began to gather determination and support for a self-imposed deadline for entry into force of the Kyoto Protocol by 2002'.
South Africa established a national committee on climate change in 1996, which released Climate Change - South African Policy Discussion Document in September 1998. A White Paper is expected in the near future.
2. Convention on Biological Diversity
2. Convention on Biological Diversity
The text for this Convention (CBD) was adopted in Nairobi in 1992 and opened for signature at the Earth Summit in Rio de Janeiro in June 1992. It entered into force on 29 December 1993 and South Africa ratified it on 2 November 1995. Its objectives are:
- to ensure the conservation of biological diversity and the sustainable use of its components; and
- to promote a fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies (taking into account all rights over those resources and to technologies), and by appropriate funding.
The biggest problem for negotiators over the CBD was how to justify restrictions of State sovereignty with respect to biodiversity conservation. The idea of biodiversity being a common heritage of humankind was seen, inter alia, as being an infringement of state sovereignty, so another approach was needed. What was decided upon was that the conservation of biological diversity is a 'common concern of humankind' and that biological resources are subject to State sovereignty.
The goals of the Convention are sought to be achieved through three broad strategies:
- promoting biodiversity conservation and sustainable use through national law and policy;
- creating an international institutional structure and policy framework to support implementation and achievement of the Convention's objectives; and
- establishing a set of principles for the international exchange of genetic resources and the biotechnologies derived from them.
As far as the first strategy is concerned, the CBD's requirements are relatively flexible, but what is required is the development of a national strategy, plan or programme for the conservation and sustainable use of biological diversity and to integrate this into relevant sectoral and cross-sectoral plans. South Africa is already making progress on this through the publication of the White Paper on the Conservation and Sustainable Use of South Africa's Biological Diversity (GN 1095 of 28 July 1997). Several biodiversity programmes flow from this policy, including the drafting of a Biodiversity Bill (for further details see André Rabie 'Governmental policy reviews and reforms relating to the environment' (1999) 6 SAJELP 121). Articles 8-10 of the Convention specify certain types of conservation measures which are supposed to be given effect to in the national policy (eg conservation in protected areas).
As far as regulation of the biotechnology trade is concerned, there are several principles incorporated in the Convention which, although somewhat vague, do address the issue. Countries are required to 'endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses by other Contracting Parties and not to impose restrictions that run counter to the objectives of this Convention'. Countries obtaining such resources from other countries must do so on 'mutually agreed terms' and after 'obtaining prior informed consent'. Moreover, buyers and source countries must arrange for 'fair sharing' of the benefits derived from the resources (ie compensation). Finally, the Convention requires parties to 'provide and/or facilitate' transfer to other parties of biotechnology derived from genetic resources, on favourable terms if to developing countries.
The third strategy involves the creation of an international infrastructure for implementation of the Convention. To this end, the Convention establishes four bodies: a financial mechanism, Conference of the Parties, a Secretariat and a scientific advisory group.
Just less than a month ago, the Cartagena Protocol on Biosafety was adopted in Montreal, Canada. The protocol addresses the safe transfer, handling and use of living modified organisms (LMOs) that may have an adverse effect on biodiversity with specific focus on transboundary movements. The protocol establishes an advance informed agreement procedure for imports of LMOs, incorporates the precautionary principle and details information and documentation requirements.
3. Convention to Combat Desertification
3. Convention to Combat Desertification
The Convention to Combat Desertification (CCD) was adopted in Paris on 17 June 1994 and comes into effect on 29 December 1996. It was ratified by South Africa on 29 August 1997. The objective of the CCD is to combat desertification and mitigate the effects of drought in countries experiencing serious drought and/or desertification, particularly in Africa, through effective action at all levels, supported by international co-operation and partnership arrangements, in the framework of an integrated approach which is consistent with Agenda 21, with a view to contributing to the achievements of sustainable development in affected areas.
The CCD, rather than emphasizing State actions, focuses on process (rather than substance) and ensuring public participation in the development and implementation of plans to combat desertification - a 'bottom-up' approach. Obligations on parties include prioritizing the combating of desertification and drought, as well as the underlying socio-economic causes of these problems. At the heart of the CCD are the National Action Programmes, which provide the blueprint for implementation of the Convention.
In November 1999, the Recife Initiative was adopted, which calls for drafting a declaration on how to strengthen programmes for combating desertification. The idea is to set a timeframe for progress on a number of priority thematic and sectoral areas; to integrate anti-desertification activities more fully into mainstream national developmental strategies of affected countries, developed country Parties and other development institutions; and to encourage rapid work on developing benchmarks and indicators for evaluating progress against desertification.
South Africa has established a national action programme on desertification and the aim is to produce a White Paper in due course. The national action programme has as its objectives a national audit on the current status of desertification' awareness-raising, consultation, and policy analysis and writing.
4. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)
CITES was adopted in Washington DC in 1973 and entered into force on 1 July 1975. South Africa ratified CITES in 1975. The objectives of the treaty are:
- to ensure, through international co-operation, that the international trade in species of wild fauna and flora does not threaten the conservation of the species concerned; and
- to protect certain endangered species from over-exploitation by means of a system of import export permits issued by a management authority under the control of a scientific authority.
Endangered species are classified according to an Appendix system. Appendix I offers the highest protection and prohibits (with limited exemptions) the commercial international trade in wild-caught specimens of species threatened with extinction (and of products derived from such species). Appendix II imposes a duty on exporting states to control, through a permit system, trade in species which could become threatened with extinction if there were no such restriction; and Appendix III requires Parties to control trade in specimens of species which have been protected in certain states and listed by those states.
One of the most contentious issues in CITES, in which South Africa is a central player, is the status of elephant and rhinoceros. Both animals are under threat in Africa (and elsewhere where they are found) due to trade in ivory and rhinoceros horn. The dynamics involved are somewhat different for elephant and rhino, so each will be discussed briefly in turn.
Following drastic falls in the elephant populations in Africa during the 1980s, due to a host of reasons but significantly affected by poaching and the illegal trade in ivory, the elephant was placed on Appendix I of CITES by the 1989 Conference of the Parties (COP). This effectively banned the commercial trade in ivory. It seems that the move has been successful and elephant herds, at least in southern Africa, have increased in number as the ivory price has tumbled. It is these countries (primarily Zimbabwe, Botswana and Namibia, with South Africa closely aligned) that have pushed for a relaxation in the status of the elephant since 1992. The suggestion is for some kind of managed trade regime for ivory, primarily to export ivory which is gleaned from culling operations. The stockpiled ivory is a direct result of the fact that these countries have managed their elephant populations well. There is strong opposition to this idea, especially from East African countries such as Kenya, due to the opinion that opening the ivory trade again will promote further poaching.
A proposal to downlist the elephant from Appendix I to Appendix II at the 1997 COP, with Zimbabwe at the forefront, was narrowly defeated. The main reason for rejection of the proposal was the perceived inability to monitor adequately a resumed ivory trade. A compromise, however, was reached, whereby elephant populations in Namibia, Zimbabwe and Botswana were put onto Appendix II in a so-called 'annotated listing'. These three countries were permitted to trade, on a 'one-off' basis, a total of 59 tons of ivory with Japan, subject to a number of conditions.
These conditions were met and nearly 50 tons of ivory was sold in a one-off deal with Japan. In April 2000, the eleventh COP will take place in Gigiri, Kenya. There are six proposals on the table dealing with the African elephant. One of these proposals is from South Africa to the effect that our elephant population be transferred from Appendix I to Appendix II to allow the following:
- trade in raw ivory under an experimental quota of a maximum of 30 tonnes of government-owned stock originating from the Kruger National Park (presumably from past culling operations);
- trade in live animals for re-introduction purposes into protected areas;
- trades in hides and leather goods; and
- trade in hunting trophies for non-commercial purposes.
Other southern African countries (Botswana, Zimbabwe and Namibia) have similar proposals relating to conditional trade, while India and Kenya have proposed to transfer all elephant populations onto Appendix II - in other words, they seek a total ban on trade in elephants and elephant products.
Rhinoceros horn is another product the demand for which has seen rhinoceroses in both Africa and Asia under threat from poaching. Consequently, all species of rhinoceroses, including the white and black rhinoceroses found in South Africa, have been listed on Appendix I. Whereas Appendix I listing for elephant has seen the international ivory price fall and poaching incidents decrease (particularly in those countries where controls were weak in the first place), listing of rhinoceroses has not led to a fall in the demand for rhino horn. Why is this the case? According to David Harland (Killing Game: International Law and the African Elephant (1994) at 79-80),
'Rhinoceros horn is consumed mainly in countries that are not members of CITES; are not particularly amenable to international pressure; and have no domestic constituency for wildlife conservation. Ivory, on the other hand, is largely consumed in CITES member states; in countries concerned about their international records in wildlife conservation; and in countries where the public was amenable to advertising campaigns appealing to them to give up ivory as a way of saving the elephant'.
At present, South Africa's responsibilities under CITES are predominantly carried out at provincial level and there is some fragmentation of control. An Endangered Species Protection Bill is currently being negotiated with a view to ironing out these problems and better carrying out South Africa's obligations under the Convention.
5. The Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971 (Ramsar Convention)
The Ramsar Convention, named after the city in Iran where it was adopted in February 1971 entered into force on 21 December 1975. South Africa ratified Ramsar in March 1975. The objectives of the Convention are:
- to stem the progressive encroachment on and loss of wetlands now and in the future, recognising the fundamental ecological functions of wetlands and their economic, cultural, scientific and recreational value;
- to encourage the 'wise use' of the world's wetland resources; and
- to co-ordinate international efforts for this purpose.
The Convention creates an international framework for funding and monitoring wetlands as well as exacting commitments from its Parties for national wetlands management. Central to the operation of Ramsar is the listing of wetlands. Each party is required to list at least one wetland in the List of Wetlands of International Importance. Within this list, the Montreux Record lists those wetlands currently under threat. The Ramsar Bureau provides assistance in respect of threatened wetlands. Essentially, the Convention requires parties who list wetlands to promote the conservation and 'wise use' of the wetlands. In addition, the Convention requires Parties to establish nature reserves on wetlands.
The 6th COP in Brisbane, Australia adopted a strategic plan in 1996, which has as its objectives:
- To progress towards universal membership of the Convention.
- To achieve the wise use of wetlands by implementing and further developing the Ramsar Wise Use Guidelines.
- To raise awareness of wetland values and functions throughout the world and at all levels.
- To reinforce the capacity of institutions in each Contracting Party to achieve conservation and wise use of wetlands.
- To ensure the conservation of all sites included in the List of Wetlands of International Importance (Ramsar List).
- To designate for the Ramsar List those wetlands which meet the Convention's criteria, especially wetland types still under-represented in the List and transfrontier wetlands.
- To mobilize international cooperation and financial assistance for wetland conservation and wise use in collaboration with other conventions and agencies, both governmental and non-governmental.
- To provide the Convention with the required institutional mechanisms and resources.
South Africa is active in its efforts under Ramsar, with sixteen listed sites: Nylsvley Nature Reserve, Blesbokspruit, Barberspan, Seekoeivlei, Natal Drakensberg Park, Ndumo Game Reserve, Kosi Bay System , Lake Sibaya, Turtle Beaches and Coral Reefs, St Lucia System , Wilderness Lakes, De Hoop Vlei , De Mond State Forest, Langebaan , Verlorenvlei, Orange River Mouth Wetland. Four of these have been designated since the end of 1996, and two (Blesbokspruit and the Orange River Mouth) are on the Montreux Record. The Department of Environmental Affairs and Tourism has a Wetlands Conservation Programme which includes efforts at compiling a national wetlands inventory and the development of a management decision support system for wetlands in South Africa.
6. List and brief summary of other International Environmental Conventions to which South Africa is a party
6.1 International Convention for the Regulation of Whaling 1946 (ICRW)
This Convention regulates conservation and controlled utilisation of whales, and it establishes the International Whaling Commission.
6.2 The Antarctic Treaty 1959
The objectives of this Treaty are to ensure that Antarctica is used only for peaceful purposes, to ensure the continuance of scientific investigation and international co-operation in such investigation and to set aside disputes over territorial sovereignty. The Treaty provides the umbrella for a number of important international environmental instruments, including the Convention for the Protection of Antarctic Seals 1972, the CCAMLR (see below), and the Convention on the Regulation of Antarctic Mineral Resource Activities (not yet in force). The Treaty includes an extensive set of binding conservation measures.
6.3 International Convention for the Conservation of Atlantic Tunas 1966
6.4 International Convention on Civil Liability for Oil Pollution Damage 1969
This Convention makes provision for compensation to people who suffer damage from oil pollution, providing inter alia for strict liability and obligatory insurance.
6.5 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 1969
The Convention allows states to take measures outside their territorial waters to prevent or otherwise address danger from oil pollution.
6.6 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 (London Convention)
The Convention distinguishes between different categories of substances, prohibiting disposal at sea of some and requiring a permit for disposal of others.
6.7 International Convention for the Prevention of Pollution from Ships 1973 (MARPOL)
As the name suggests, the MARPOL Convention addresses marine pollution by a number of substances, including oil. It incorporates a 1978 Protocol.
6.8 Convention on the Conservation of Migratory Species of Wild Animals 1979
Aimed at conservation of wild animal species which migrate across national boundaries by the development of co-operative agreements, the Convention has not been signed by any of South Africa's immediate neighbours.
6.9 Convention on the Conservation of Antarctic Marine Living Resources 1980 (CCAMLR)
6.10 United Nations Convention on the Law of the Sea 1982 (UNCLOS)
The essential objective of this comprehensive Convention is to establish a legal order for the high seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilisation of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment. The Convention only recently entered into force (November 1994), without a number of important countries (like the United States and the United Kingdom). Moreover, about 80 signatories, including South Africa and the European Community, have not yet ratified or formally confirmed the Convention.
6.11 Vienna Convention for the Protection of the Ozone Layer 1985
This convention includes the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer and the London and Copenhagen amendments to the latter. The objectives include the protection of human health and the environment against harmful effects of human activities adverse to the ozone layer and to adopt measures to control such activities. The Montreal Protocol and London amendment requires the reduction of consumption and production of certain substances, including chlorofluorocarbons (CFCs), by specified amounts within set time frames. The Copenhagen amendment, which South Africa has not signed, accelerates these deadlines.
6.12 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency 1986 (Assistance Convention)
The objectives of this Convention are to provide a framework for provision of assistance in nuclear emergencies, and to minimise consequences and to protect humans and the environment from the effects of radioactive releases. The International Atomic Energy Agency (IAEA) administers the Convention.
6.13 Convention on Early Notification of a Nuclear Accident 1986 (Notification Convention)
The early provision of information about nuclear accidents in order to minimise adverse consequences is the objective of this Convention. It is also administered by the IAEA.
6.14 Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989 (Basel Convention)
The main aims of the Convention are to control and reduce transboundary movement of hazardous wastes, and the Convention regulates such activity with a view to waste minimisation and assistance of developing countries in their waste management efforts.
6.15 Convention Concerning the Protection of the World Cultural and Natural Heritage 1972 (World Heritage Convention)
This convention deals with the effective collective protection of the cultural and natural heritage of outstanding universal value.
6.16 The Southern African Regional Commission for the Conservation and Utilisation of the Soil (SARCCUS)
This regional Convention adhered to by several southern African states,(South Africa, Malawi, Mozambique, Botswana, Lesotho, Swaziland and Namibia) involves regional co-operation in matters relating to soil conservation and related issues.
South Africa is also the member of conventions relating to nuclear and chemical weapons (The 1963 Treaty banning Nuclear Weapons Tests in the Atmosphere in Outer Space and under Water; the 1971 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and other Weapons of Mass Destruction on the Sea Bed and Ocean Floor and in the sub-soil thereof; the 1925 Geneva Protocol on the Prohibition of Chemical Weapons; the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and their Destruction; the 1993 Convention on the Use of Chemical Weapons and the 1968 Treaty for the Non-Proliferation of Nuclear Weapons) which, while having environmental relevance, are not aimed specifically at environmental concerns and are not discussed here.
Finally, mention should be made of certain conventions which have either not yet come into force or which South Africa has not yet ratified but is planning to do so in the near future. These are:
6.17 Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade 1998
As the name suggests, this convention deals with regulation of trade in chemicals and pesticides. At the signing ceremony in 1998, 61 states and 1 regional economic integration unit signed it, and it will enter into force once 50 States have ratified it.
6.19 South East Atlantic Fisheries Regional Organisation (SEAFRO)
Negotiations between the countries concerned (South Africa, Namibia, Angola and the United Kingdom) are underway and a draft convention is being compiled.
David Hunter, James Salzman and Durwood Zaelke International Law and Policy (1998) Foundation Press, New York. This book is highly recommended. It also makes reference to a website which contains information not included in the book as well as about new developments.
Michael Kidd Environmental Law: A South Africa Guide (1997) Juta, Kenwyn. Chapter 5.
www.unep.ch Website which contains links to many of the United Nations Environmental Conventions
www.environment.gov.za The Department of Environmental Affairs and Tourism Website - contains an informative section on international conventions.
www.saep.org Southern African Environment Project website. Contains information about a host of environmental issues, including international material.
www.ecolex.org Another link site to international conventions.
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