THE POTENTIAL ROLE OF A VOLUNTARY INSTRUMENT ON ALL TYPES OF FORESTS

Background paper for the Country-Led Initiative in Support of the UNFF “Scoping for a future agreement on forests”

Berlin, Germany 16-18 November 2005.

by

Richard G. Tarasofsky

Head, Energy, Environment and Development Programme

Chatham House

Lauren Flejzor

PhD. Candidate, London School of Economics and Political Science

Energy, Environment and Development Programme

Chatham House

10 St James Square, London SW1Y 4LE, UK

© Royal Institute of International Affairs 2005

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Credit: © Royal Institute of International Affairs 2005

1Executive Summary

This background paper aims to inform the discussions at the Country Led Initiative in Support of the UN Forum on Forests (UNFF) “Scoping for a future agreement on forests”, in Berlin, Germany, 16-18 November 2005. The paper surveys and analyses various non-binding “soft law” instruments in the international system, outside the forest sector, and confirms that, given an appropriate context and operational capabilities within a given sector, soft law can be an effective way to express an international consensus. The paper begins by setting forth the context in the UNFF where such instruments have been mooted.[1] It then examines more deeply what is meant by “soft law”, and reveals its sometimes complex relationship to “hard law”. A detailed examination of ten non-binding instruments then follows, to shed light on the general approach to developing such instruments (including the main motivations), their format, the types of responsibilities they set forth, the degree of detail they contain, and their measures to ensure effective implementation. The paper ends with a consideration of some key lessons that have been learnt about these instruments and identifies a set of general factors that contribute to a non-binding instrument’s ultimate success.

2Background and Context: recent discussions at the UNFF

Some UNFF members have recently proposed developing new “soft law” for the forest sector. In particular, it has been proposed that an instrument that is “not legally binding but requires member states to actively subscribe to it in order to demonstrate their political commitment”[2] would be a useful step forward. Such a voluntary code on sustainable forest management (“SFM”) could, inter alia, establish global goals for SFM; provide the basis for the formulation of national targets; be action oriented and focus on the implementation of agreed actions; provide guidance at the regional and national levels; and contain commitments to strengthen funding at the national and international levels.[3]

At UNFF-5, in May 2005, a number of proposals were tabled on the formation of a voluntary code. Views diverged on a range of issues, including the status and content of such an instrument, as well as its link to financing. While UNFF-5 did not lead to concrete policy outcomes in May 2005, the final report included draft text on forming a voluntary code/guidelines/or international understanding on the “management, conservation and sustainable development of all types of forest”.[4] Some elements of such an instrument were outlined in a draft terms of reference, concerning the purpose, process and topics to be included.

Box 1. Terms of Reference for developing a voluntary forest code/guidelines/international understanding[5]

Purpose: The purpose it to articulate international forest related agreements on the management, conservation and sustainable development of all types of sustainable forest management and to help achieve the goals decided upon at the fifth session of the UN Forum on Forests.

Process: The process of developing the voluntary code/guidelines/international understanding will be integrated into the future multi-year programme of work of the Forum.

Possible topics to be included: Title and purpose; reaffirmation of existing agreements; relationships with other international instruments; cooperation; implementation; monitoring and reporting; and provision for review.

The box above leaves open the possibility of including a range of modalities to achieve the four international goals provisionally agreed at UNFF-5.

3What is “soft law” and is it useful?

The application of “soft law” instruments has become increasingly popular in the international policy community, especially in the last twenty years. “Soft law” instruments provide states with room to manoeuvre where there are conflicts over goals and standards.[6] Thus, “soft law” may be a useful compromise in situations where an agreement is desired, but a legally binding one is difficult to achieve.

However, critics of soft law note that “hard law” is the only sure way to achieve set objectives and that non-binding – rather than legally binding – instruments are more difficult to implement.[7]Tsamenyi et al note that a “key problem associated with voluntary instruments is their non-binding nature, which can and does significantly impede the effectiveness of the instruments due [to] the lack of legal force they carry”.[8]Nonetheless, in some instances, soft law instruments have led to effective outcomes. Some experts go on to suggest the “distinction between hard law and soft law is less a dichotomy than a continuum, while maintaining the core, distinctive features of each”.[9]

There are a variety of titles for non-binding legal instruments: e.g. codes of conduct, guidelines, undertaking, and memoranda of understanding. The title is not in itself the determinant of its legal or political weight. Even if an instrument bears a title that is similar to non-legally binding instruments, it may ultimately be considered legally binding if its content so suggests. According to Article 2(1)(a) of the Vienna Convention on the Law of Treaties, a treaty is:

“an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”;

An example of this is in Qatar v. Bahrain, where the International Court of Justice ruled that signed minutes of a meeting were legally binding, having regard to the terms and the particular circumstances in which it was drawn up.[10] On the other hand, not only is the OECD Arrangement on Export Credits intended to be non-binding, but it is clearly stated in the text that the instrument is only a “Gentleman’s Agreement”.

It may also be the case, however, that a non-legally binding instrument contains some binding elements. For example, the Non-Legally Binding Authoritative Statement Of Principles For A Global Consensus On The Management, Conservation And Sustainable Development Of All Types Of Forests (UNCED Forest Principles) is expressly non-legally binding – according to its title. Nonetheless, some elements in this instrument may reflect customary international law, such as Principle 1(a),[11] and therefore are legally binding. Such instruments may also reflect opinio juris, one of the constituent elements of customary international law.

In other cases, non-legally binding instruments contain provisions that also appear in treaties. Thus, these provisions are legally binding on those states that are party to those treaties. In still other cases, treaties can “harden” provisions in non-binding instruments by obligating parties to implement the standards that they set out.[12] There are also provisions in some treaties that allow for dispute settlement of non-binding norms.[13]

Therefore, soft law is often not completely distinct from hard law and indeed, the relationship between the two in a given sector may be dynamic.

4Survey and Analysis of Non-Legally Binding Instruments

This section contains a detailed survey and analysis of the following international instruments:

  • International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons (“Instrument on Small Arms”)
  • FAO Code of Conduct for Responsible Fisheries (“FAO Fish Code”)
  • Financial Action Task Force’s Anti-Money Laundering Recommendations (“FATF Recommendations”)
  • International Undertaking on Plant Genetic Resources for Food and Agriculture (“International Undertaking”)
  • UNESCO Code of Conduce for Social Sciences Research (“UNESCO Research Code”)
  • International Atomic Energy Agency (IAEA) Code of Practice on the International Transboundary Movement of Radioactive Waste (“IAEA Code on Radioactive Waste”)
  • The Hague Code of Conduct against Ballistic Missile Proliferation (“Ballistic Missiles Code”)
  • Kimberly Process Certification Scheme (“Kimberley Process”)
  • International Code of Conduct on the Distribution and Use of Pesticides (“FAO Pesticides Code”)
  • Conference on Security and Cooperation in Europe Final Act (“Helsinki Process”)

These instruments are analysed with reference to a number of parameters detailed below. Information available from the literature was supplemented by non-attributable interviews with secretariats and governments. These instruments were selected because they represented a useful cross-section, both inside and outside the UN system. But since the selection is not exhaustive, there are occasional references made to other non-binding instruments, which were not thoroughly assessed.

4.1The general approach taken in developing the instrument

There are a number of motivations that states have in establishing a non-binding legal instrument. These include:

1) Because a legally binding instrument is not politically feasible and a non-legally binding instrument was considered better than nothing. For example, in relation to the Instrument on Small Arms, many UN States did not want a another treaty or Protocol to the UN Convention Against Transnational Organized Crime as negotiation and ratification of treaties and protocols were considered too time consuming.[14] Another example is the International Labour Organization, which decided to emphasise non-binding instruments to counter the low and declining rate of ratification of its draft conventions.[15]

2) To act quickly. This was evident in the formation of the FAO Fish Code. The political atmosphere was conducive to rapidly galvanizing consensus in the face of troubling fisheries statistics in the early 1990s. However, the development of the Instrument on Small Arms illustrates that speed is not always achieved in such negotiations – in that case the process spanned many years.

3) The creation of a preliminary, flexible regime that can be further developed.[16] This appears to be the case with the International Undertaking, which was fairly rudimentary at the outset, but stimulated the establishment of a fuller system on genetic resources for food and agriculture.

4) Avoids need for ratification, which could ultimately derail its entry into force. These concerns motivated the developers of the Helsinki Process and the Ballistic Missiles Code.

5) To push the boundaries of current law. For example, the outcome of the Copenhagen CSCE Conference on the Human Dimension exceeded human rights norms at that time.

6) The tradition in a sector is for non-binding instruments. The Hague Code of Conduct against Ballistic Missiles grew out of, and complements, the Missile Technology Control Regime by specifically addressing the issue of ballistic missiles. The Missile Technology Control Regime is an informal and voluntary association of countries which share the goals of non-proliferation of unmanned delivery systems capable of delivering weapons of mass destruction, and which seek to coordinate national export licensing efforts aimed at preventing their proliferation.[17] The initiators of the Kimberley Process were of the view that it should build upon the voluntary self-regulating initiatives of the diamond industry.

7) To complement a field of binding legal instruments. The FAO Code of Conduct for Responsible Fisheries was the first voluntary instrument adopted for the fisheries sector. It is meant to complement a host of other, legally binding, instruments, which fit in with a wider regime. The Code was adopted by consensus in FAO and negotiated in a manner similar to treaties. It interprets and amplifies some aspects of UN Convention on the Law of the Sea and the Straddling Stocks Convention. In addition creating a code ensured a prompt outcome, since it seemed more politically feasible and less time consuming than forming a treaty on the issue.

Many non-binding instruments are adopted under the auspices of international organisations. For example, the International Undertaking was adopted as a Resolution of the FAO Conference. In such cases, these instruments tend to be aimed, at least in the first instance, at the membership of such organisations. Sometimes, the way an organization adopts an instrument places its political and legal status in doubt. For example, the IAEA Code on Radioactive Wastes was approved in 1990 by a Group of Experts, who had a mandate from the General Conference to work on a code. However, the General Conference did not subsequently adopt it.

Similarly, an instrument adopted by only a few states will generally be aimed at only those states. In other cases, instruments adopted by universal bodies, such as those emanating from the UN General Assembly, tend to be aimed at all states or others. Examples of this include the UNCED Forest Principles, the Universal Declaration on Human Rights, and the Global Compact.

Non-binding legal instruments are adopted in a number of ways, which can be significant for their ultimate legal effect. Indeed, although some attributes of treaty development may not be present – e.g. full powers or a diplomatic conference – the elaboration of some non-binding instruments can involve similar negotiation approaches.[18] The development of the Ballistic Missile Code is instructive in this regard. It emerged out of a pre-existing Missile Technology Control Regime. In 1999, MTCR partners began consultation on the Code, initially with MTCR and then with non-MTCR states. Once it became apparent that they had a “critical mass” of States that would support a Code, they agreed at Ottawa in 2001 to universalize a draft text through a transparent and inclusive negotiating process open to all states. France hosted the first negotiation session, which was attended by participants from more than 70 countries. Spain hosted the second session, by which time the participants had grown to more than 90 countries. The draft Code was launched in The Hague in November 2002.

Sometimes these instruments are adopted after a wide consultation. The FATF first developed its Recommendations in 1990, then again in 1996 and 2003. The FATF Revised Recommendations (2003) were formed after extensive consultations with regional private sector and non-governmental organisations, a measure that is seen as key to ensuring their implementation on a regional basis.

In some cases, initiatives to develop, modify or strengthen an instrument come from outside bodies. For example, Agenda 21 contains a reference to “possible mandatory applications” through “legally binding instruments” in the context of the Prior Informed Consent (“PIC”) procedure for chemicals and pesticides.[19] This helped generate political will inside the FAO, which then decided to develop an international treaty on that issue. Another example is that the development of the Kimberley Process certification scheme was given encouragement and legitimacy through a UN General Assembly Resolution.[20] The states involved were encouraged to report detailed proposals on the certification scheme. In addition, the commitment was made for the General Assembly to include in its provision agenda for the following session an item entitled “the role of diamonds in fuelling conflict.”

4.2Format of the instrument

There is no set format of non-binding instruments, although certain elements tend to appear often. The Instrument on Small Arms is typical. It contains: a preamble; general provisions (which represent a statement of purpose); definitions of key terms; detailed commitments, inter alia, on marking provisions (by manufacturer and export/import points), record keeping, cooperation in tracing; and implementation and follow up actions.

The language adopted in such instruments is also important for understanding the weight of commitment. For example, the use of the terms such as “should” or “endeavour to”, which are common in many instruments, appears less of a commitment than providing that states “should ensure “the “code is to be”.[21] When an instrument is adopted by an international organisation, some non-legally binding instruments use mandatory language in relation to the tasks that organisation is to carry out.[22]

Some instruments are supplemented by other instruments, which add to or clarify their interpretation. For example, as a follow up of the Code of Conduct for Responsible Fisheries, several Plans of Action were adopted.[23] In addition, a series of technical guidelines were prepared by the FAO secretariat to assist in implementation. In the case of the International Undertaking, three resolutions containing “agreed interpretation” of contentious issues were adopted.

4.3Rules for subscription/membership

Most non-legally binding instruments, either implicitly or explicitly, are open-ended as regards subscription or membership. In some cases, it would appear that the instrument is aimed at members of the organisation under whose auspices the instrument was adopted. A few instruments contain provision for subscription or membership.

  • In the case of the Kimberley Process, only states that are full members are entitled “Participants”. “Applicants” are states that aspire to become Participants, but have not met minimum requirements yet. The Process is open to all Applicants, without discrimination. “Observers” are from industry and civil society – three main ones are the World Diamond Council, Global Witness, and Partnership Africa Canada. Participants, industry and civil society participate in working groups (e.g. monitoring, diamond experts, and statistics) and committees (participation committee and selection committee). The Chair is from a Participant and is elected by the Participants. He is tasked with overseeing the implementation of the Process – i.e. it is a government representative
  • Researchers with UNESCO MOST programmes were required to sign the UNESCO Research Code as an attachment to their UNESCO research contracts.
  • The Ballistic Missiles Code is open to voluntary subscription by all countries.[24]States make “politically binding commitments to curb the proliferation of WMD-capable ballistic missiles and to exercise maximum restraint in developing, testing, and deploying such missiles”.[25] Those states which seek to adhere to this need to send a letter to the Immediate Central Contact (“ICC”) (currently Austria), stating their desire to subscribe to the Code. However, there are no verification or inspection measures associated with the Code and no sanctions.
  • The International Undertaking refers to “adherents”, which can be states or institutions, as defined by the instrument, although at the time of adhesion, these are to advise on the extent to which they are able to comply with the Principles of the Undertaking.[26] Not all countries adopted it, even though it was based on accepted principles of international law at the time. As a result, some countries entered “reservations”,[27] out of concern that the International Undertaking was not fully compatible with their domestic systems for plant genetic resources. However, the subsequent resolutions containing the “agreed interpretations” were all adopted unanimously.
  • The FATF Recommendations are to be implemented by all FATF members, which includes any OECD member state or other ‘strategically important’ country or territory that communicates its desire to become an FATF member. International organisations can join the FATF, but are considered observers rather than members. All prospective members supply a letter of political commitment, for instance, through a Prime Minister or Minister of Finance. Applications for membership are endorsed and adopted during FATF meetings.

Sometimes the membership in restricted instruments is the subject of political negotiation. For example, the original proposal for the Helsinki Process by the USSR in 1960s was for a conference on security in Europe, which would include all European states. Western Europe agreed, but insisted that Canada and the US also join. Thus the conference became open to those states as well, although such states could elect to be observers instead of participants.