Memorandum To: CC: Re: Environmental Law Adviser Michael Anthony L.

Leachon Convention on Land Pollution Based on Vienna Convention and NonBinding Legal Instruments.

From: The Minister of Environment Date: 1/12/2012

Questions Presented Whether or not we would draft a convention that would satisfy the requirements of The Vienna Convention on The Law of Treaties or use a Non-Binding Legal Instrument to deal with the problem of land based pollution? Short Answer We should follow the requirements of The Vienna Convention on The Law of Treaties since land pollution is the degradation of earth's land surfaces often caused by human activities and its misuse; a Non-binding Legal instrument would be too weak to uphold the law since states which abide by it do not yet wish to bind themselves legally. Whereas a treaty is a primary source of international law.

Facts In late 2011, a major international conference was convened to deal with the problem of land-based pollution. The intention prior to the conference was to adopt a convention specifically setting goals for the reduction of land based pollution and for states to engage in bilateral, regional and global cooperation to that end. During the conference a major rift ensued between developing states and developed states over the terms of the proposed convention. Developed states proposed drafting a convention that would satisfy the requirements of The Vienna Convention on The Law of Treaties. Developing states indicated they would not agree to such proposed idea. They do however; indicate they would accept a nonbinding legal instrument. The Minister of Environment asks for advice on what type of instrument should be adopted.

Discussion Vienna Convention on Law of Treaties The Vienna Convention defines treaty as 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. The Vienna Convention applies to international agreements that satisfy the Conventions definition specifically that they be in writing and reflective of the intention of the parties to be bound, and governed by international law.1 Whether bilateral or multilateral, treaties are a primary source of international law. Treaties determine the rights and duties of states just as individual rights are determined by contracts. Their binding force comes from the voluntary decision of sovereign states to obligate themselves to a mode of behaviour. While treaties are generally binding on the parties, the number of the contracting parties and the generality of the acceptance of the rules created by the treaty can have the effect of creating a universal law in much the same way that general practice suffices to create customary law. The question sometimes asked whether treaties are law or merely obligations which the law says must be carried out. On the basis of this question, a distinction is made between contract treaties or law making treaties.2

What are Non-Binding Legal Instruments? Non-legally binding agreements emerge when states agree on a specific issue, but they do not, or do not yet, wish to bind themselves legally; nevertheless they wish to adopt certain non-binding rules & principles before they become law. This approach often facilitates consensus, which is more difficult to achieve on binding instruments. There could also be an expectation that a rule or principle adopted by consensus, although not legally binding, will nevertheless be complied with. Often the existence on non-legally binding norms will fuel civil society activism to compel compliance.

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Bernas, Joaquin. "Definition of Treaties.". 2009. Quezon City: Rex Book Store, 2009. 22-23. Print. Bernas, Joaquin. "Definition of Treaties.". 2009. Quezon City: Rex Book Store, 2009 15-17. Print.

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Land Pollution Land pollution is the degradation of earth's land surfaces often caused by human activities and its misuse. Haphazard disposal of urban and industrial wastes, exploitation of minerals, and improper use of soil by inadequate agricultural practices are a few of the contributing factors.3 Also, increasing urbanization, industrialization and other demands on the environment and its resources is of great consequence to many countries.

Advantages, Disadvantages and Decision Now that we know the meaning of Land pollution we can say that it is not only a problem for one country but to all. Land Pollution is already a global problem. So instead of using a Non-legally binding instrument we opt to use a treaty instead because the challenge with non-legally binding instruments lies in their enforceability and in their risk of becoming nothing more than symbolic statements of policy. Even though non-legally binding agreements create expectations of compliance among the various members to the agreement, they are not actually enforceable under international law. These types of agreements also need to ensure they are developed through a consensus building process, contain monitoring mechanisms, and that their terms are technically appropriate and not too narrow, otherwise they risk becoming no more than symbolic statements of policy.4 The major advantage to a legally binding instrument or treaty is that it is governed by international law, accordingly, parties to the treaty are under an obligation not to breach the terms they have agreed to. Typically, a treaty will outline specific provisions to be followed if the terms are breached. For example, it may provide a remedy such as financial compensation for the injured party or for retaliatory measures such as sanctions.5 Alternatively, an independent arbitral or judicial institution may be given the power to make judgements against the party in breach of the treatys terms. Regardless of whether or not the treaty itself stipulates provisions for its breach, the Vienna Convention on the Law of Treaties does provide that in the event of breach, the affected party may unilaterally terminate the treaty or suspend the performance of its own obligations under the treaty.6
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"Land Pollution." 2009. Web. 20 Mar 2012. <http://en.wikipedia.org/wiki/Land_pollution>. "Towards a Regional Strategy to Strengthen the Nurse Workforce of the English-speaking CARICOM:International Legal Instruments, Agreements and Obligations." Human Development Department Caribbean Country Management Unit Latin America and the Caribbean Region Report No. 62282-LAC. (2012): 20. Web. 20 Mar 2012. <http://www.iadb.org/intal/intalcdi/PE/2012/09761.pdf> 5 B Carter, P Trimble, A Weiner, International Law (5th eds.), (Wolters Kluwer Law & Business, New York, 2007). 6 "Towards a Regional Strategy to Strengthen the Nurse Workforce of the English-speaking CARICOM:International Legal Instruments, Agreements and Obligations." Human Development Department Caribbean Country Management Unit Latin America and the Caribbean Region Report No. 62282-LAC. (2012): 21. Web. 20 Mar 2012. <http://www.iadb.org/intal/intalcdi/PE/2012/09761.pdf>

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Bibliography
B Carter, P Trimble, A Weiner, International Law (5th eds.), (Wolters Kluwer Law & Business, New York, 2007). Bernas, Joaquin. "Definition of Treaties.". 2009. Quezon City: Rex Book Store, 2009 15-17. Print. Bernas, Joaquin. "Definition of Treaties.". 2009. Quezon City: Rex Book Store, 2009. 22-23. Prin "Land Pollution." 2009. Web. 20 Mar 2012. <http://en.wikipedia.org/wiki/Land_pollution>. "Towards a Regional Strategy to Strengthen the Nurse Workforce of the English-speaking CARICOM:International Legal Instruments, Agreements and Obligations." Human Development Department Caribbean Country Management Unit Latin America and the Caribbean Region Report No. 62282-LAC. (2012): 20. Web. 20 Mar 2012. http://www.iadb.org/intal/intalcdi/PE/2012/09761.pdf "Towards a Regional Strategy to Strengthen the Nurse Workforce of the English-speaking CARICOM:International Legal Instruments, Agreements and Obligations." Human Development Department Caribbean Country Management Unit Latin America and the Caribbean Region Report No. 62282-LAC. (2012): 21. Web. 20 Mar 2012. <http://www.iadb.org/intal/intalcdi/PE/2012/09761.pdf>

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