SOURCES OF INTERNATIONAL LAW

SOURCES OF INTERNATIONAL LAW

• Article 38 (1) of the Statute of the International Court of Justice is the most authoritative and complete statement of the sources of International Law

  • International Conventions

  • International Customs

  • General Principles of Law recognized by civilized nations

  • subject to the provision of Article 59, judicial decisions and teachings of most highly qualified publicists

• International Conventions, International Customs and General Principles are the three exclusive law creating processes, while the other three are law determining agencies.

  • In reality it's not so easy to make such distinction

• Formal Sources embody the constitutional mechanism for identifying law, while Material Sources incorporate the essence of the regulations properly.

• CUSTOMS

  • Usually defined in terms of a behaviour repeated along time, through means of material facts, with a subjective expectation, through practice, protest against it or even the decision of not to protest agains some practices (acquiescence).

  • The Libya/Malta case said one must look primarily in the actual practice and opinio juris of the states

  • DeVisscher makes a comparition of those aspects settling a custom the same way footprints settle a path, what accounts for the different roles of each variable and of the states pushing each of them to have more or less relevance according to their capacity to do so.

    • Quotes the influence of the U.K on developing the Law of the Sea in the XIX Century.

    • Similarly, there's the U.S. And the URSS preeminence regarding space law in the Cold War.

  • Those elements are manifestations of practices but not obligatory laws in theirselves.

  • International organizations in fact may be instrumental in the creation of customary law.

    • The International Law Comission supported that, stressing the role of the UNSC and of the General Assembly.

• Time

  • sometimes its flexibilized for what is called Instant Customary Law;

    • Exclusive Economic Zone in the law of the seas.

    • Regulation customs on sovereignty of air space developed very quickly after the WW – I, and Bin Cheng argued that opinio juris was way more relevant than time, material facts and repetition.

• Material Facts

  • Refers to the actual behavior of states

  • 1950 Colombia vs Peru/ Haya de La Torre – the Colombian claim of its right to give Asylum to Haya de La Torre were not accepted for there was no constant and uniform usage of this mechanism among the countries.

  • Anglo-Norwegian Fisheries case – the British claim against the Norwegian measure of its waters was dismissed for it referred to an alternative approach without sufficient uniformity to be considered custom.

  • North Sea Continental Shelf cases – German against Holland and Denmark for delimitating its sea since it signed but not ratified the Geneva Convention providing the delimitation as claimed by Holland and Denmark. It ended up emiting a German favorable decision.

    • The court pointed out that the state practice had to be uniform to create a custom, but at the Nicaragua case, they went on said that the practice in question didn't had to be in absolutely rigorous conformity with the purpoted customary law.

• Subjective Expectations

  • Is the opinio juris, the psychological belief that such behaviour is law

    • opinio juris sive necessitatis was first formulated by François Gény

    • Positivists emphasis on state sovereignty stress the importance of opinio juris

    • Some non-positivists states that opinio juris is impossible to prove

    • Kelsen defends that its ultimately the Court which give the final veredict on whether a set of aspects constitute custom or not.

    • North Sea Continental Shelf case mentioned that the Geneva Agreement didn't reflected the German opinio juris.

    • Nicaragua Case – The U.S. Was judged guilt by the ICJ for supporting the contras in Nicaragua since it was understood that they broke the Managua Agreement of Friendship it had with Nicaragua since 1956. However, U.S. said ICJ had no jurisdiction and further used the veto in the UNSC not to be punished.

      • It made a direct reference to the North Sea Continental Shelf case regarding the importance of opinio juris.

  • Opinio Juris can lead to changes once it doesn't simply express the believe in the existing law, but refers to the existence of a law to become, or in the process of becoming.

    • Usually it depends on how other react to see if the new law believed to exist will really come to exist or be rejected as a one state plan only.

  • The behavior within international organizations is revelaing of opinio juris.

• Failure to act (acquiescence)

  • Can arise from legal obligation not to act, from incapacity or from unwillingness.

    • Unwillingness and repetition may lead to the formation of a formal rule.

      • Was positively describled in the case of Gulf of Maine

      • Lotus Case – A French ship collided with a Turkish one in international waters and further Turkey charged the French comander but the issue was raised of rather they had authority to do so. At the end it was recognized that Turkey was on its right since they were not against any International Law.

        • Despite the main decision, a jurisprudence was created regarding the fact that abstention could only give rise to the recognition of a custom if it was based on a conscious duty to abstain.

          • This because France alleged that the nonexistence of previous actions like that carried out by Turkey would means acquiescence.

    • Anglo-Norwegian Fisheries case show that when a state acts contrary to an established customary rule and other acquiesce in this, then that state is to be treated as not bound by the original rule.

      • Acquiescence feature a form of protest in this case since Norway suceeded on refusing to acceept a delimitation of the country waters by quoting its historical acquiescence.

  • Customary rules are binding upon all states exept for those that dissented from the start of that custom.

    • This raises the issue of new states and customs, for which the mainstream approach is that they inherit the colonial customs.

      • Example is the Right of Passage over Indian Territory case, between Portugal and India.

• TREATIES

  • Written agreements whereby the states participating bind themselves legally to act in a particular way or to set up particular relations between themselves.

  • Law Making Treaties (of universal or general relevance) and Treaty Contracts (applying to two or small groups only)

    • Only Law Making Treaties can create law, however Treaty Contracts may provide evidence of customary law.

  • Some writers consider it to be the most important sources of international law since they require the express of consent of its signatories.

  • Instead of creating laws, some treaties only declare existing laws and customary rules

    • Vienna Convention on Diplomatic Relations 1961.

  • Treaties apply only to its members, as shown in the North Sea Continental Shelf Case, but eventually non ratifiers can be implied for the treaty also reflect a custom, and sometimes a treaty can even create a custom.

    • The North Sea Continental Shelf case mentioned all that, and highlighted that it was not the case mostly because the opinio juriswas absent to declare a custom out of the Geneva Treaty.

      • The Nicaragua Case make it clear that there's no absorption of a treaty in cases where the mentioned law also refers to a custom.

        • They had to state it since the US imposed reeservations on the use of the Managua Friendship Agreement.

  • Some treaties may even extend their scope to non signatories, like the Article 2 (6) of the UN Charter and the 1947 GATT.

• GENERAL PRINCIPLES OF LAW

  • Much less used in international law than in the domestic one, and was basically included to reduce gaps in the international law (non liquet).

  • It's not clear if it refers to general principles appearing in many municipal laws or something purely from the international law.

    • Libya/Malta case states that the justice is seek according to the rule of law so that it can have predictability and consistency, even though it looks beyond it to principles of more general application.

    • Also in the Tunisia/Libya Cntinental Shelf case.

  • Some examples of cases which resorted to such general principles:

    • Chorzow Factory – obligation to make reparation

    • German settlers in Polland – private laws persist to sovereign transitions

    • Corfu Channel case – regarding the value of using circumstantial evidences

    • Administrative Tribunal case – the principle of res judicata (what makes a decision to be final, binding and without appeal) was defended

      • Also refered in the Genocide Convention (Bosnia and Herzegovina vs Serbia and Montenegro) and in the Passage case.

    • Arbitration Tribunal in the AMCO vs Republic of Indonesia case – compensation of prejudice in light of the damnum emergens and lucrun cessans, and respect for acquired rights

    • The most important is the good faith principle: UN Charter article 2(2); Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States adopted by the General Assembly in resolution 2625 (XXV), 1970.

    • Barcelona Traction case - ex injuria jus non oritur (facts conducts flowing from wrongful conduct cannot determine the law)

    • Equity principle is also very common , as expressed in the cases of: Diversion of Waters from the Meuse case (1937); Rann of Kutch Arbitration (1968); North Sea Continental Shelf; Law of the Sea Convention (1982) articles 59, 74 and 83; Convention on the Law of the Non-Navigational Uses of International Watercourses (1977) article 5;

      • In the terrestrial contest between Burkina Farso and Republic of Mali, on which the Court also emphacised that equity cannot be raised to modify an established frontier.

• JUDICIAL DECISIONS

  • Article 38 provides it to be used only as subsidiary and article 59 say that previous decisions of the Court have no binding force toward future ones.

  • Some unusual cases where previous judgements served to create law:

    • The early Anglo-Norwegian Fisheries cases which settled the bases for the Geneva Convention on the Territorial Sea and Continuous Zone of 1958.

    • The Reparation case recognised the legal personality of international institutions in certain cases

    • Genocide case dealt with reservation to treaties

    • Nottebohm case considered the role and characteristicc of nationality

    • Lotus case was considered and latter abandoned in the Geneva Conventions on the Law of the Sea

  • Some cases in which the debate of why not to take pervious cases into considertion served to structure the current judgement:

    • Cameroon vs Nigeria

  • Uses in cases of Arbitration: Iran-US Claim Tribunal; Alabama Claims arbitration; Island of Palmas case (very important reference to previous arbitrations which is still a paradigm on the issue of territorial sovereignty)

  • Ad hoc cases like the International Criminal Tribunal for the Former Yuguslavia and the Criminal Tribunal for Rwanda.

  • Even municipal decisions can become important since they can be quoted as evidences of customary law.

  • Federal states municipal management of federative problems can also serve to inspire international mechanisms to handle sovereign claims among different states.

• WRITERS

  • Only subsidiary.

  • Historically it has been of great importance in the heyday of Natural Law

  • Writers like Gentili, Grotius, Pufendorf, Bunkershoek and Vattel (from the XVI to the XVIII).

  • Play a great role on giving coherence to the whole produced by international law since it lacks a centralized judicial body.

• OTHER POSSIBLE SOURCES

  • Classic position of the General Assembly as a paliamentary advisory body with the binding decisions being taken by the UNSC.

  • If not the vote itself, the importance of how to vote may constitute evidence of state practice and state understanding as to the law.

  • Nicaragua case stressed the opinio jurisof the US on how it voted in the General Assembly Declaration on Principles of International Law concerning Friendly Relations and Co-operation among states in accordance with the UN Charter.

  • The way states voted in the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples determined the shift of self-determination from a political and moral principle to a legal right, further recalled in the 1970 Declaration on Principles of International Law.

  • General Assembly many votes on Nuclear issues, however, was not consistently enough to express an opinio juris to be quoted in the ICJ advisory opinion on the Legality of the Threat or Use of Nuclear Weapons.

• Other organs and international institutions also account for possible sources of law, or at least sources of soft laws or law inspiring movements, as is admited regarding the importance of the Helsinki Final Act (1975) to the further human rights agreements which emerged in a more classic way, even though this was not a binding agreement.

  • Similar cases happened in the International Law Comission in the following conventions:

    • On the law of the sea (1958); On Diplomatic Relations (1961); On Consular Relations (1963); On special Missions (1969); On the Law of Treaties (1969)

    • The drafts of the ILC are often referred to in the judgements of the International Court of Justice

  • Some other bodies:

    • United Nations Commission on International Trade Law (UNICTRAL)

    • United Nations Conference on Trade and Development (UNCTAD)

  • Some temporary bodies:

    • Commitee on the Principles of International Law

  • Specialized agencies:

    • ILO; UNESCO

  • Independent bodies:

    • International Law Association

    • Institut de Droit Internacional

• Unilateral acts

  • Article 38(1) of the ICJ says that, despite not being sources of international law, they may constitute sources of obligations

• HIERARCHY OF SOURCES AND JUS COGENS

  • Traditionally judicial decisions and writings are the least important and the customs and treaties struggle for the first position, being a general rule that the newest will have priority.

    • Other deciding principle among them is the lex specialis derogat legi generali (specific laws have priority over general ones), but not if the general rule is one of jus cogens (inalienable right).

    • Jus cogens is the most important criteria for evaluating the hierarchy of a source of law, followed closely by the erga omnes obligations (which extend to all the members or subjects).

      • Actually those two principles – jus cogens and erga omnes are most time overlaping.

        • In the Barcelona Traction case it was pointed that the obligation of a state towards all states is more important than the obligations of the state towards specific states (erga omnes)

        • Erga omnes character of the right to self-determination mentioned in the East Timor case

        • In Bosnia vs Serbia the Genocide Convention was considered an erga omnes obligation

      • Examples of jus cogens in international law

        • The outlawing of aggression and of genocide and the protection from slavery and racial discrimination, as well as the prohibition of torture

          • Article 53 of the Vienna Convention on the Law of Treaties (1969) provides that treaties will be void if they threat jus cogens and article 64 provides that jus cogens should also be observed in the case of customary laws.

        • Jus cogens is claimed to reflect the influence of Natural Law.

        • Individual responsibility for international crimes is seen as a new jus cogens created, what calls the attention for the process envolved in this since those principles, once raised, cannot be derrogated.

          • The steps of proposition and acceptance are describled in the article 53 of the Statute of the ICJ.

          • Only rules based on custom and treaties may form the foundation of jus cogens

          • Article 53 of the Vienna Convention says that a treaty contrary to jus cogens is void ab initio, whereas article 64 impose the termination of a treaty in case jus cogens against it come to emerge.

        • Article 41(2) of the ILC Articles on State Responsability (2001) provides that no state shall recognise as lawful a 'serious breach' of a peremptory norm.

        • The Bosnia case mentioned that article 103 of the UN Charter claiming precedence of UN obligations under other agreements cannot be extended to conflicts between the UNSC and jus cogens.

MUNICIPAL AND INTERNATIONAL LAW

MUNICIPAL AND INTERNATIONAL LAW

• It's no excuse to international misbehaviours to point to domestic impediments.

  • Vienna Convention on the Law of Treaties (1969), articles 27, 46(1) and (2), 7(2).

  • Cameroon vs Nigeria – Nigeria claim was dismissed in light of article 7(2) of Vienna Convention according to which the head of state is among the persons who represent the state and also noticing that states must not follow domestic rules of other countries.

  • British was guilt in the Alabama Claims arbitration (1872) despite pledging the lack of domestic law to impede it from producing the ship which sinked a US vessel.

  • Polish nationals in Danzing case

  • Stressed in the Applicability of the Obligation to Arbitrate case.

  • Lockerbie case

  • La Grand case

  • Avena case – US disrespected a foreigner basic right to get in touch with the Ambassy and pledged many domestic issues concerning federalism to try scaping the condemnation, but didn't manage.

  • By way of contrast, the ICJ in the Elletronica Sicula SpA (ELSI) case pointed that a municipal ilegality may not imply also an international illegality

• A country expresses its opinion on international matters through means of its domestic law-making, so that a domestic law may come into an international judgement to be evidence of behaviour and legal position of the country.

  • Serbian Loans case (1929) – legal position

  • Certain German Interests in Polish Upper Silesia – Behavior evaluation

HISTORY OF INTERNATIONAL LAW

HISTORY OF INTERNATIONAL LAW

• As to what concerns the state reference as a framing to the international law, it can be quilted to the Western culture.

  • However, the Renaissance itself have roots back to older non Western societies.

• International system can be traced back to around 400 years.

• PREVIOUS EXPERIENCES OF LAW WITHOUT THE STATE SYSTEM ITSELF:

  • 2100 B.C. - Solemn Treaty signed between the Lagash and Unma in the Mesopotamia

  • Around 1000 years latter Rameses II of Egipt stablished eternal peace with the King of the Hititites.

  • Ancient Israel formulated a universal ethical instance relating to warfare rules of procedure.

  • Many of the Hindu rules displayed a growing sense of morality and generosity.

  • Chinese developed mechanisms of harmony among its constituint parts.

  • Greece was the first to resemble the Western comunity of soverign states, but still it was not states but only a restricted group of City-States (from the 6th century B.C onwards).

    • Some germ of Treaties coming regarding the Helenistic world.

  • Rome gave a bigger role to law but in the beggining it was restricted to the Jus civile (laws restricted to their citzens) further including the Jus gentium (rules of how to deal with foreigners).

    • The greek concept of Natural Law, developed by the Stoic philosophers in the 3rd century, was largely inherited by the Romans.

    • Corpus Juris Civilis – a compilation of legal material by a series of Byzantine philosophers (AD 534).

  • Muslim rule followed the Muslim expansion and it was particularly meaning to what refer to their treatment regarding non-muslims, of which a particular care was payed to the other people of the book (jews and christians).

    • The diplomatic imunity owns much to the aman concept

  • Canonic Law ruled during middle ages, but there was also a gradual development of Law Merchant (through a non centralized collection of diffeent regulatory structures)

    • Byzantine first emerged as a pole, than the Atlantic and Mediterranean coasts, and English maritime expansion and control at last.

    • The struggles for secularization of the Papacy and the principalities struggles lead to some major concepts to rule modern times: Diplomacy; statesmanship; the theory of the balance of power; and the idea of community of states.

    • Renaissance launched humanism; secularism and political framework.

    • Renaissance promoted the reborn of Hellenism and Natural Law.

• THE STATE SYSTEM AND BEYOND

  • Sovereignty first emerged in 1576 in the six livres de la République by Jean Bodin, and was subjected to the Laws of God and Nature.

  • The merging of the idea of Natural Law to the Law of God was inspired in Thomas Aquinas philosophy.

  • Founding Fathers of international law:

    • Francisco Vitória (1480 - 1546) – advocated the nationhood of American tribes and defended the idea of Just Cause impeding attacks, but didn't consider equality, therefore, a just cause would include the refuse to be dominated.

    • Suárez (1548 - 1617) – Natural Law of carrying out agreements entered into.

    • Alberrico Gentili (1552 - 1608) – De Jure Belli debates Law of War and Law of Treaties and is considered the father of secular law.

    • Hugo Grotius (1583) – most popular father of international law, wrote De Jure Belli ac Paris about private law notions and organization of material and pointed out the irrelevance of Divine Law. Since reason had the exclusivity of the approach to law.

      • Presented a comprehensive system of international law

      • Still preserved the idea of just and unjust war, a notion which would soon disapear

      • opposed the Iberic concept of 'closed seas', in accordance with the Dutch ideas of free trade and the needs to expand commercial empire.

  • Positivism and Naturalism;

    • Pufendorf (1632 – 94) – Founding father of naturalism, identified international law completely with the law of nature.

    • Zouche (1590 – 1660) Founding father of positivism, completelly dismissed Natural Law and payed attention only to specific situations

    • Bynkershoek (1673 – 1743) '' ''

• Vattel (1714 – 67) brought a mix. His Droit des gens was based on Natural Law but practically oriented.

  • Equality of states in international law

  • Distinguishing between laws of concience and laws of action (more important)... increasing the importance of positivism.

• Positivism derived from empirical approach of Hume and Locke, scientific method of verification.

  • It emerged most clearly after the Westphalian Peace (1648) and included the solidified emerging concept of sovereignty as earlier presented by Bodin and Hobbes.

  • The XIX Century was massively positivist while the XX Century saw a re-emerging of Natural Law which give way to Natural Rights (moving from the national to the individual sphere in a re-reading of Hobbes and the proper evaluation of the individual in the state process)

  • The rights of man constitute the heart of the U.S.A and French Revolutions and the essence of modern democratic state.

  • An always present aspect of Natural Law could be seen in the sancticity of private possessions and the sovereignty rights.

• THE 19th CENTURY

  • Congress of Vienna (1815) after the Napoleonic defeat and the launching of an European Balance of Power.

    • Set up freedom of navigation of international waterways and created the Central Commission of Rhine to regulate it

  • 1856 Commission for Danube

  • 1865 International Telegraph Union

  • 1874 Universal Postal Union

• Eurocentric International Law

• Latin American Independences brought the issues of diplomatic asylum and the treatment of foreign enterprises and nationals.

• 1863 International Commission of Red Cross

• 1864 Geneva Cnventions to humanize conflicts

• 1899 and 1907 Hague Conferences established the Permanent Court of Arbitration and dealt with the treatment of prisioners and warfare practces

• Great predominance of pacta sunt servanda (madatoriness of following agreements) as a base for positivist preeminence

  • More radical adhesion among monists (see no limit paradigmatic distance between domestic and international law) and a dualist (those who see a clarcut between domestic and international law) recognition as long as the element of consent was present

• THE 20th CENTURY

  • The most important outcome of the 1919 Peace Agreement (refering to the 1st World War) was the establishment of the League of Nations.

    • The League consisted of an Assembly and an Executive Counsel but was crippled since the beginning by the absence of U.S. and URSS (which would only join very late)

    • Failed when confronted with determined agressors like: Japan invasion of China (1931); Italy attacked Ethiopia; German early aggressions; and URSS was expeled after invading Finland (1939).

    • Succeeded by the UN in 1946

  • Permanent Court of International Justice (1921) succeeded in 1946 by the International Court of Justice.

  • International Labor Association soon after the WW – I.

  • System of mandates emerged between the wars, refering to colonies of the defeated states to be put under care of the winers and not to become their colonies.

  • Emerging of Human Rights and several approaches to International Law than the traditional Positivist-Natural Law opposition.

  • There was a gradual sophistication of the positivist doctrine to include individual rights, quilted in examples such as:

    • Nuremberg and Tokyo Tribunals

    • Rwanda War Crimes tribunals

    • International Criminal Court 1998

• 1948 Genocide Convention

• 1948 Universal Declaration of Human Rights

• 1950 European onvention for the Protection of Human Rights and Fundamental Critiques

• 1966 International Covenants on Human Rights

• The sophistication also included other 'emerging' and new subjects of international law, such as International Organizations, enterprises, NGO's, regional organizations and individuals. All this however, with big controversy.

  • 1949 ICJ Advisory Opinion in the Count Berandotte murder in Israel pointed out that UN was a subject of international law.

• Historical uniqueness of the UNSC binding power and the General Assembly democratic coverage

APPROACHES TO INTERNATIONAL LAW

APPROACHES TO INTERNATIONAL LAW

• MODERN POSITIVE-NATURAL LAW SYNTHESIS

  • Kelsen's 'Pure Theory of Law' defined it as a normative science according to which legal validity of laws depend on prior laws and this process reaching what he called the basic norm of the whole system.

    • For Kelsen the basic norm is the rule that identifies custom as the source of law, or stipulates that the states ought to behave as they customarily behaved.

    • It fails to answer the question as to why custom is binding.

    • Kelsen is a monist, therefore, domestic and international law are one interlocking structure with the supremacy of the latter.

      • Municipal laws finds its ultimate justification in the rules of international law by a process of delegation within one universal normative system.

  • Hart developed positivism into a more sociological theory (1961 – The Concept of Law)

    • Law are systems of primary rules (to specify standards of behaviour) and secondary rules (providing means to develop laws and, therefore, unfolding the possibility of change)

    • It's an historical evolutionary process to move from the primary to the secondary and he points that international law as a whole didn't entirelly reached the secondary moment, therefore the importance of pacta sunt servanda is still not as strong as it is predicted to be.

  • Roscoe Pound's view of the law as a social engineering balancing social interests.

  • Realism treated law as an institution functioning within a particular community with a series of jobs to do.

    • An understanding of the functioning of Courts and legal sites was demanded.

  • Stammler shifted the Aquina's Natural Law into a logical-oriented one

  • Gény and Duguit – sociological inspired Natural Law approach defining it in terms of universal factors, physical, psychological, social and historiacal, which dominated the framework of society within which the law operated.

  • The German, Radbruch, represents a growth of Natural Law after Nazism according to which unjust laws had to be opposed by virtue of a higher Natural Law.

  • Principles of Non-agression and human rights, as well as the vast array besides the positivist state agency show how Natural Law regained space in the XXth Century.

• NEW APPROACHES

  • Instead of the cronological approach there's also a power and capacity approach, which focus on economics, politics and other aspects at the center of inter-state activity.

  • Realism is seen as a new approach, reflecting the great importance of Behavioralism, specially in the U.S.

    • 2 main internal splits:

      • Inside-out Foreign policy techniques approaches

      • Outside in international system approaches.

        • Consider the many participants in the international sphere and also makes a wide historical usage to identify the different international systems:

          • 1848 – 1914 – Balance of Power System

          • 1914 – 1989 – Bipolar System

            • NATO; EUROPEAN COMUNITY; WARSAW PACT; COMECON

    • Behavioralism was enriched by the sue of game theory, communications, integration, environment and capability

      • The rise of quantitative research has facilitated the collation and ordering of vast quantities of data

      • Translated into International Law by McDougal, with some important modifications

        • Saws law as a process of decision making rather than a defined set of rules and obligations

        • Eight analytical cathegories/ law as an outcome of: 1) Power 2) Wealth 3) Enlightment 4) skill 5) well-being 6) Afection 7) respect 8) rectitude

      • Falk accept McDougal basics but points the methodological risks of endless cathegories, therefore points to the concepts of moral and welfare and highlight the importance of legal structures.

      • Koskenniemi criticizes policy-oriented approaches for they usually support dominant powers.

      • Franck raises the issue of legitimacy as the bridge between lw and other social forces (specially politics), according to which states would choose to obey internationall law.

        • Legitimacy depends on 4 specific properties:

          • Determinancy – normative content

          • Simbolic validation – authority approval

          • Coherence – consistency

          • Adherence – falling with an hierarchy of rules

  • Many authors don't bother looking for a general principle behind law and focus on specific cases.

  • Critical legal studies, or else, New Approaches to International Law – NAIL, points that liberal principles of domestic law are being transported to international law leading to further problems.

    • Liberalism tries do equate individual freedom and social order but inevitably ends up siding one of those.

    • Koskenniemi points to the problem of power in the concepts and the hidden power behind law., claiming for contextual analysis to identify it.

  • Koskenniemi also points to the opposition of formalism (rule-oriented) and dynamism (policy oriented)

    • Formalism can be used to support dominant powers.

    • Critical legal studies points that no international legal system exists and that, in fact, one must concentrat on ad hoc legal concepts to show up the hidden forces.

• Feminist approaches are emerging concerned to both, structural aspects and the factual absence of women and women-directed laws.

THE FRAMEWORK OF THE XVI SAARC SUMMIT's ENVIRONMENTAL APPROACH

THE FRAMEWORK OF THE XVI SAARC SUMMIT's ENVIRONMENTAL APPROACH

By, Pedro Lara de Arruda.

Introduction

The 2010 Summit of South-Asia Regional Cooperation (SAARC) in Thimphu (Buthan) has been considered a unique moment in the history of regional policies toward environmental protection and climate change preventive measures. Despite the fact that the very theme of the meeting was directly and explicitly addressing the environmental cause as it main goal - “Towards a green and happy South-Asia”, it was also markable that the previous SAARC comuniques and pronunciations regarding good practices on environmental issues finally took the first step in the direction of becoming more binding agreements, specially in light of the SAARC Convention in Cooperation on Environment (which was signalled by all the countries but still waits for the ratification).

Despite the cognitive value of launching one such distinguished agenda centred on issues like well-being and environmental protection, what certainly affects the cultural strengths behind the policy-making processes in all the levels (domestic, regional, and even global), there's also the necessity of acknowledging the shift from the previous soft approach given by the SAARC to environmental issue to a more committed one, which even expressed the conscious will of extending the South-Asian agenda to international organizations and global negotiations on that issue (like the United Nations Framework Convention on Climate Change process – UNFCCC). To notice one such shift in the SAARC approach to environmental issues one must first take a look to the historical approach of the organization on the issue.

Early approaches to environmentalism in the history of SAARC

As early as 1987 the Heads of State or Government of SAARC were already addressing in a systematic way the necessity to intensify regional cooperation for preserving, protecting and managing the ecosystems of the region, which are well known for its diversity as well as for its fragility. Besides this natural condition of fragility framing the South-Asian environmental reality – marked in the risk of Himalayan melting and subsequent flood of Bangladesh, by the delicate river sharing between Pakistan, India, Nepal and Bangladesh, or else by the over-exposure of the Maldives to tide and ocean variations –, the debates held through the SAARC organization still in its early days raised an early consciousness regarding the intensification of such process which could be represented by abnormal phenomenas caused by deregulated human activities, like the Global Warm and the Greenhouse Effects, as well as environmental disasters caused by both, human intervention and natural causes (SAARC, 2010a). Also relevant to mention, this early acknowledgements were already aware that the environmental loss should be also accounted regarding their direct effects on harming the sovereignty and development capabilities of the affected countries, therefore unfolding the path for the securitization of environmentalism in the region. Here, it's important to notice the early securitization of environmentalism under the SAARC by avoiding further brute critiques on the SAARC as a merely rhetorical institution without no real and concrete effects since the very non-material process of securitization is much more a matter of cognitive processes and cultural formation which, however, can lead to undeniable material outcomes as, for instance, the inclusion of certain marginalized issues in the top of the state agenda – as is being the case with environmentalism.

The institutionalization process

A landmark on the institutionalization of the SAARC approach to environmentalism according to our previous description come in this very year of 1987, during the Third SAARC Summit, held in Kathmandu (Nepal), from November the 2nd to the 4th. As an outcome of the debates and expression of this shared perceptions mentioned above the Summit demanded a study on Natural Disasters and Environment Preservation, entitled: “Regional Study on the Causes and Consequences of Natural Disasters and the Protection and Preservation of the Environment”. This study would be carried by many specialists and its final report would come out only in 1991. The exert bellow brings out its Terms of Reference:

1. Country-wise identification and study of natural disasters, their nature, extent, causes and consequences;

2. Country-wise identification of different aspects of environmental degradation, the causes thereof and their implications for natural disasters which undermine the development process;

3. Country-wise survey of existing programmes for (a) the management of disasters including prevention/mitigation/ relief and rehabilitation; and, (b) the protection, conservation and restoration of the environment;

4. Identification of specific areas of national priority requiring further action;

5. Identification of common areas of regional concern; and,

6. Identification of measures and programmes at the regional level, for strenghtening disaster management capabilities and for the protection and preservation of the environment of the Member Countries to supplement national, bilateral, regional and global efforts.

(SAARC, 1991, p. 1-2)

Intensifying the importance of the environmental issues and in line with the global worries regarding the Global Warming effect, the 1988 SAARC Summit, held in Islamabad, in December, requested a joint study entitled, “Greenhouse Effect and its Impact on the Region” (SAARC, 1992), which was extremely technical and brought up valuable official knowledge to orient the policy-making towards some most serious challenges, such as:

1. Sea level rise: A 1m sea level rise due to global warming is likely to cause major problems in the intensely utilized and densely populated coastal plains producing coastline recession of up to several kilometers, submergins coastal villages and depriving many people of their land and resources. Some of the island countries in the world may be affected seriously.

2. Tropical cyclones: As sea surface temperature raises, the ocean area which can spawn tropical cyclones (typhoons, hurricanes etc) is expected to increase. However, although the area of sea having temperature itself may increase in a warmer world. Some scientists argue that the intensity of these storms may increase.

3. Flood: Floods are already a major ongoing concern of many developing countries, and this problem may be exacerbated by global climatic change. Some climate model projections suggest that the greenhouse effect will enhance both ends of the hydrologic cycle, producing more instances of extreme rainfall as well as increased drought. In some instances, the expected rise of sea level may aggravate the vulnerability of coastal countries to submerge.

4. Drought or water shortages: As global warming occurs, frought may become a much greater problem. Global warming may be expected in some regions to lower the groundwater level, increase salinity due to the evaporation, decrease in surface of many lakes or inland waters ways, and drop in the water level of such bodies.

5. Loss of Biomass: A major threat to developing countries posed by global warming may be acceleration of depletion of biomass cover as a result of increased drought.

6. Rapid Thawing of the Permafrost: Climate models have generally projected that arctic and subarctic areas are likely to warm more rapidly than the average global temperature increase. Such a rapid warming would result in a significant thwing of the permafros in the subarctic, producing more disruption to buildings, roads and bridges, adversely affecting the stability of some existing structures and forcing changes in construction practice.

Migration and resettlement may be the most threatening short-term effects of climate change on human settlements... (SAARC, 1992, p. 17-18).

This study would be finished in 1992 and, along with the previous study on Natural Disaster they would last for many years as the main guidelines of environmental policies to be undertaken in the regional level.

Those early efforts to jointly produce information on environmental issues would very soon raise the importance of creating institutions to handle the suggested means of a joint environmental preventive care of the natural resources, as well as to act collectively on remedying the environmental disaster affecting the region. In light of the conclusion of the study required in 1988 and only one year after the study required in 1987 was also finished, the SAARC established a general Technical Committee on Environmental issues and a specific Technical Committe on Environment and Forestry (SAARC, 2010a).

The general Committee on Environment originally had a mandate to monitor the progress made in the implementation of the recommendations of the two Regional Studies, particularly aiming at: Examining the recommendations of the Regional Studies; identifying measures for immediate action; and deciding on modalities for the implementation. Latter on, however, this original mandate would be expanded to update new environmental issues and new mechanisms and suggestions on handling them, of what the Dhaka Declaration and the Thimphu Statement on Climate Change would be representatives (SAARC, 2010a).

The specific Technical Committe, however, was first launched aiming only the implementation of measures suggested in the 1991 study - “Regional Study on the Causes and Consequences of Natural Disasters and the Protection and Preservation of the Environment” -, which basically concerned identifying measures for immediate action and deciding modalities for implementation of those particular issues addressed in the study of 1991. However, this specific Committe further extended its mandate to the implementation of measures mentioned in the 1992 study - “Greenhouse Effect and its Impact on the Region”, and, in many aspects started overlapping responsibilities with the general Technical Committee, even though the Technical Commission remained much more concerned with practical technical issues than with political decisions, which were a main duty of the the general Committee (SAARC, 2010a).

As part of the same expansion process which somehow merged the general Committe with the Technical Committe, the Technical Committee was further given the responsibility of carrying out measures to implement good practices on the fields of meteorology and forestry, what would lead to the formal merging of this Comittee with a third one, not originally under the umbrella of the SAARC environmental mechanisms and still not mentioned here – the Technical Committee on Science and Technology. This last merge would come into practice in 2004 despite have being approved in 2003 under the restructured Regional Integrated Programe of Action (RIPA) launched by the Twenty-ninth Session of the Standing Committee in Islamabad (December, 2004). A clear understand of the precise mandate of those merged institutions is given by the SAARC official website just as follows:

Since 2004, the Technical Committee on Environment and Forestry has met three times in June 2004, May 2006 and January 2009. The sectoral mandate of the Technical Committee comprises of environment, forestry and natural disasters. In addition to the Terms of Reference outlined under Article VI of the SAARC Charter, the Technical Committee follows-up on the implementation of decisions taken by SAARC Charter Bodies (Summit, Council of Ministers, Standing Committee) and the SAARC Environment Ministers. The coordination and monitoring of the implementation of the 1997 SAARC Environment Action Plan; and SAARC Action Plan on Climate Change (July 2008) are also entrusted to the Technical Committee. The Fourth Meeting of the Technical Committee on Environment and Forestry [took] place in Thimphu, Bhutan on 17-18 May 2011. (SAARC, 2010a)

Parallel to those Committees the Environment Ministers of the SAARC members also started to meet periodically since 1992 with the precise objective of following the progress and further enhance regional cooperation in the areas of environment, climate change and natural disasters, specially regarding the Study Recommendations and the Committee implementation measures. Since 1992 the SAARC Environment Ministers have met nine times besides their presence in the Special Session of the Environment Ministers in the aftermath of the Indian Ocean Tsunami (Malé, 2005) and in the SAARC Ministerial Meeting on Climate Change (Dhaka, 2008).

One of the most important of the nine Environment Ministerial Meetings already held by SAARC was the Third one, held in Male (1997). At that occasion they approved and Environmental Action Plan which strengthened the comprehensive approach of the previous two studies and also updated issues of concern to the SAARC members, besides unfolding some line of patterns to foster further implementation of measures (SAARC, 2010a).

Here it's important to note how relevant were the technical issues raised by this Environmental Action Plan and their respective mechanisms of implementation, which are largely recognized as successful for they soon originated concrete institutions such as: The SAARC Coastal Zone Management Center (SCZMC), which was established 2004 to promote cooperation in planning, management and sustainable development of coastal zones, including research, training and awareness in the region; the SAARC Forestry Center (SFC), which was established in Thimphu in 2007 for the protection, conservation and prudent use of forest resources by adopting sustainable forest management practices through research, education and coordination among Member States; the South-Asia Environment Outlook (SAEO) which was finalized in 2009, during the Eight Meeting of the SAARC Environment Ministers, in collaboration with the United Nations Environment Programme (UNEP); and, through more indirect ways, even the SAARC Convention on Cooperation on Environment as stipulated under Item 17 (Legal Framework) of the Action Plan, which was signed during the Sixteenth SAARC Summit (2010) and will enter into force after being ratified by all Member States.

Of special relevance to the XVI SAARC Summit was the 8th Environment Ministerial Meeting held in Delhi (2009), for it adopted the Delhi Statement on Cooperation in Environment which identifies many critical areas that need to be addressed and reaffirms the commitment of Member States towards enhancing regional cooperation in the area of environment and climate change. Some of the main points of this document were summed in the Delhi Statement of which some exerts follow bellow:

Environmental Planning & Management

1. The Ministers recognized the critical importance of effective planning and management of environmental protection systems, including environmental pollution, and conservation of aquatic and marine ecosystems. They emphasized the need for cooperation in devising measures to develop capability for enhanced environmental management.

2. The Ministers appreciated and acknowledged the support of India in SAARC Meteorological Research Centre (SMRC) and reaffirmed the decision of SMRC to set up a network of SAARC weather stations to monitor weather patterns, especially storms, across the member states, starting with the establishment of fifty automatic weather stations, three GPS Sonde Stations and a Doppler Radar in Nepal, Bhutan and Bangladesh in the first phase. Afghanistan and Pakistan would be covered in second phase with Maldives and Sri Lanka in the third phase. They directed that the deployment of this network across other member states be accelerated.

3. The Ministers agreed to accelerate consultations between the apex environmental management and pollution control agencies of the Member States (“apex group”), and directed that they develop a Regional Cooperation Plan on environmental management and pollution control within a period of six months from the date of adoption of this statement.

Biodiversity and Afforestation

4. The Ministers noted the critical need to conserve, preserve, rehabilitate and protect the rich, varied and unique biodiversity of the South Asia region. They noted the need for biodiversity protection and regulation, including through scientific methods.

5. The Ministers re-affirmed the importance of the region’s forests as a unique treasure, both for their rich biodiversity and for the livelihood they provide to the forest-dependent people of South Asia. They emphasized the need to give a new impetus to afforestation and the sustainable management of forests and its resources, including through community- based methods.

6. The Ministers emphasized the need to identify transboundary biodiversity zones and develop a framework for transboundary biodiversity conservation, including exploration of potential biodiversity conservation corridors. The Ministers directed the Technical Committee on Environment to examine the Concept and develop a framework for consideration of member states within a period of six months thereof.

7. The Ministers underlined the need for afforestation and sustainable management of forests to be an integral part of any agreement on forestry that is concluded under the UN Framework Convention on Climate Change (UNFCCC). They emphasized that the “REDD Plus” proposal before the UNFCCC is an appropriate basis for such an agreement.

Climate Change

8. The Ministers recognized that the South Asia was amongst the regions most vulnerable to climate change. They stressed that sustainable development and adaptation to Climate Change remained the

appropriate way to address the threat of climate change. They agreed that it was central, including through acceleration of the development process, to build up capacity in the region to cope with the extreme weather events and other adverse effects of climate change.

9. The Ministers recalled the SAARC Declaration on Climate Change adopted by the Twenty-ninth Session of the Council of Ministers held in New Delhi on 7-8 December 2007, and emphasized the SAARC Action Plan on Climate Change adopted by the SAARC Ministerial Meeting on Climate Change held in Dhaka held on 3 July 2008, wherein specific areas of possible actions by the Member States were identified.

10. The Ministers welcomed the proposal by Bhutan to adopt ‘Climate Change’ as the key theme of the Sixteenth SAARC Summit to be held in Thimphu in April 2010 and also noted the concept paper prepared for the Summit.

11. The Ministers underlined the crucial importance of close cooperation in the run-up to the UN Climate Change Conference of Parties (COP-15) in Copenhagen, with a view to enabling the full, effective and sustained implementation of the UN Framework Convention on Climate Change (UNFCCC). They also underscored the need to fully implement the commitments under the Convention in accordance with its principles, especially that of equity and common but differentiated responsibilities and respective capabilities.

12. The Ministers also noted the importance of the High Level Conference on Technology Development and Transfer organized by the Government of India in cooperation with UNDESA and expressed hope that this will be an important contribution to the agreed outcomes at Copenhagen.

13. The Ministers recommended that the Member States may undertake cooperation with respect to adaptation, supported with resources as mutually agreed, to address the adverse effects of climate change.

14. In particular, the Ministers underscored the need to undertake and enhance cooperation in areas related to environment amongst the Member States in order to have a coordinated response to climate change. To this end, the Ministers agreed to institutionalize an annual workshop – a South Asia Workshop on Climate Change Actions (SAWCCA). The Ministers welcomed the offer of the Government of India to host the first workshop in early 2010.

(SAARC, 2009).

SAARC, the region and the globe

Concerning the already mentioned growing importance of the environmental issues on the South-Asian agenda and its subsequent extension to international forums one can point to the systemic joint positions taken in the United Nations Framework Convention on Climate Change process. In December 2009, Sri Lanka was the representative of a SAARC common position in the COP 15 and it echoed early positions held in the SAARC Summits, in the Environment Ministerial Meetings and also the Statement that the Permanent Representatives of Members States of SAARC, based in New York, launched at the eve of the COP 15 (SAARC, 2010a). In an even more institutionalized and strong position, the SAARC got the right of taking part in the COP 16 as formal observer member, and the Bhuthanese Chair representing the SAARC in the occasion presented the common SAARC position previously written by an Intergovernmental meeting specially aimed at COP 16, which was demanded in the XVI SAARC Summit in Thimphu (2010) (SAARC, 2010a).

Despite the UNFCCC, SAARC has also expanded the role of its environmental approach through other forums and mechanism such as: Its signature of the Memoranda of Understanding with the South Asia Cooperative Environment Programme (SACEP) in July 2004; its link with the United Nations Environment Programme (UNEP), in June 2007, as well as with the collaboration with the United Nations International Strategy on Disaster Reduction (UNISDR) in September 2008 (SAARC, 2010a).

The prominent role played under the umbrella of SAARC at those international forums and organizations were also an outcome of a regional process of increasing attention paid to the specific issue of the Climate Change. Both, recurrent and catastrophic natural disasters affecting South Asian countries as a direct effect of the climate change, and the global wake up for the reality of the alert after the UN Panel for Climate Change was made public, contributed largely to the landmark that was the Dhaka Declaration and the SAARC Action Plan on Climate Change.

The issue of Climate Change and South-Asian vulnerability

Under one such framework the Fourteenth SAARC Summit (Delhi, 2007) expresses “deep concern” over the climate change and called for “pursuing a climate resilient development in South Asia”. This claim received great consideration at the Twenty-ninth session of the SAARC Council of Ministers, held in Delhi in December of the same year. Evaluating the extension of the impacts caused by recent natural disasters in South Asian countries and recognizing that the causes of such phenomena were not restricted to only national or regional actions they made the claim for reducing the South-Asian countries vulnerability and at the same time to work globally to ensure the reasons behind the Climate Changes themselves. Such demands were soon materialized in a material Plan of Action written in 2008 by the Ministerial Meeting on Climate Change, which was held in Dhaka, following a previous technical meeting – the Expert Group Meeting on Climate Change – which have met at the same place only two days before (July the 1st and the 2nd) (SAARC, 2010a).

Among the main lines of action predicted in the 2008 Plan of Action one must highlight the stress on the necessity of States to promote massive awareness on the already known facts regarding the climate change, which aimed both, the domestic society and the inter-State exchange of knowledge and good practices as well. States were also urged to cooperate in capacity building projects to the extent of CDM and DNA projects, as well as to impose measures against GHG by sinks, among other aspects in line with the Dhaka declaration, which main lines are bellow:

1. Commit ourselves to promote programmes for advocacy and mass awareness raising on climate change and to inculcate habits towards a low carbon society, including incorporation of climate change and related science-based educational material in educational curricula, as per SAARC procedure and practices.

2. Resolve to cooperate on climate change issues for capacity building, including the development of CDM projects and DNA and on incentives for removal of GHG by sinks, and exchange of information of best practices, sharing of the results of research and development for mitigating the effects of climate change and undertaking adaptation measures, and for enhancing south-south cooperation on technology development and transfer, as per established SAARC norms.

3. Agree to initiate and implement programmes and measures as per SAARC practice for adaptation for dealing with the onslaught of climate change to protect the lives and livelihood of our people for food, water and energy securities and call upon Annex-I countries to fulfill their commitments as per UNFCCC for providing additional resources.

4. Further commit ourselves to implement the SAARC Action Plan on Climate Change.

5. Adopt this Declaration and the SAARC Action Plan on Climate Change.

(SAARCS, 2008, p. 2)

A big role was also kept for the necessity of developing means of handling individuals affected by climate change outcomes in ways to assure their livelihood, even recalling the individual and collective responsibility of the States assumed before the UNFCCC. This mention to the UNFCCC would be extremely meaningful for its immediate effect of lending the SAARC institutional legitimacy and authority to endorse some aspects of the UNFCCC signed by the South-Asian countries, and also for its further effects of setting the basis for the formal recognition of the SAARC as an observer member in the UNFCCC COP 16 in 2010 (as we have already mentioned before).

In what is seen as an update of the Dhaka document of 2008, the SAARC Action Plan on Climate Change 2009-2010 identified seven thematic areas of cooperation, which are: “Finance and investment; education and awareness; management of impacts and risks; and capacity building for international negotiations”. Departing from those acknowledgements the Action Plan lists technical measures and line policies on the following issues: “Capacity building for CDM projects; exchange of information on disaster preparedness and extreme events; exchange of meteorological data; capacity building and exchange of information on climate change impacts (e.g. sea level rise, glacial melting, biodiversity and forestry); and mutual consultation in international negotiation process as the Priority Action Plan” (SAARC, 2010a).

As we have already mentioned, much of the measures taken into a Summit and Ministerial level were not only the reflex of the 'Global Awakening for the risks of Global Warming and other Environmental issues', but also and to a large extent an outcome of the local and regional experiences involving environmental catastrophes. Among those events one should remark the large damages caused by the December 2004 tsunami and the December 2005 earthquake. Just following the tsunami there was a Special Session of the SAARC Environment Ministers in Malé (June, 2005) which adopted the Malé Declaration on Collective Response to Large Scale Natural Disasters (2005) further supplemented by the Comprehensive Framework on Disaster Management – which has a mandate lasting until 2015 (SAARC, 2010a).

It's important to note that the effect of the over-exposure of the South-Asian countries to natural disasters not only stimulated the alignment of SAARC and its member countries within the Global efforts to establish best practices on environmental issues, but also lead those countries to use the SAARC as instrument for creating some of the most practical regional institutions to handle such kind of incidences. The just referred Comprehensive Framework on Disaster Management is a clear example of this dual role of the reaction-measures of SAARC regarding regional disasters in a sense that it is undeniably global – aligned of the Hyogo Framework and at the roots of the UNFCCC – but also regionally independent since it's giving birth to concrete autonomous and original institutions such as those being confectioned by the SAARC members on their National Plans of Action and the SAARC Disaster Management Center (SDMC).

The SDMC was established in New Delhi in October 2006 and originally provided policy advices and measures to facilitate capacity building including strategic learning, research, training, system development, expertise promotion and exchange of information for effective disaster risk reduction and management. At the XV SAARC Summit (Colombo - 2008) it was suggested that the SDMC should be expanded to include a Natural Disaster Rapid Response Mechanism and, as the Inter-governmental meeting held in May 2011 at the Maldives managed to present a final proposal, it's opening for signature may happen in the XVII Summit scheduled to be held at November this year, also in the Maldives (SAARC, 2010a).

The Thimphu Meeting

With one such background the centring of the official focus of the last SAARC Summit on climate change (XVI Summit) is far less surprising than it could be if simply taken out of context. After all, the regional experience of South-Asia has proven time and again that Environmental policies are a present and meaning reality which has devastated the national capability of many countries – e.g. 60% of the Maldives GDP were lost due to the last tsunami that affected it – and, in light of the still vulnerable social condition of its countries allied with the scenario-prone environment that characterizes the area, it can come to lead to even worst crisis.

This historical reading over the environmental approach of SAARC makes clear how the kind of disasters affecting the region are more linked with the specific theme of Climate Change, for which SAARC and its member countries have historically being key features even in global prominent structures such as the UNFCCC. Accordingly, the 2010 formal commitment on focusing the challenges for best policies regarding climate changes was nothing but a recognition of; the task which was increasingly growing on the previous meetings; the critical moment through which institutions like the Comprehensive Framework on Disaster Management were passing on their way to becoming fully operational; and also, of the great corridor that the issue represented for a SAARC global insertion. After all, it's no mistake that SAARC, as the representative of the acknowledged most affected region by Climate Changes, played a role in the COP 15 and, specially, in the COP 16, which is disproportional to its size in other fields (e.g. economics, military, technology, etc...).

Despite the disputing agendas which always impose theirselves over the official agenda of the SAARC Meeting, and in 2010 had that process intensified by the 'observer' participation of the U.S.A and China, the Thimphu meeting managed to produce a landmark document which updated most previous policies and plans of action, extended some institutional mandates and outlined a number of local and regional important initiatives with the potential of strengthening of the cooperation on climate change related issues. The exert bellow brings the totalitty of the prescriptions adopted in the document (excluding the preamble) – the Thimphu Statement on Climate Change:

(i) Review the implementation of the Dhaka Declaration and SAARC Action Plan on Climate Change and ensure its timely implementation;

(ii) Agree to establish an Inter-governmental Expert Group on Climate Change to develop clear policy direction and guidance for regional cooperation as envisaged in the SAARC Plan of Action on Climate Change;

(iii) Direct the Secretary General to commission a study for presentation to the Seventeenth SAARC Summit on ‘Climate Risks in the Region: ways to comprehensively address the related social, economic and environmental challenges’;

(iv) Undertake advocacy and awareness programs on climate change, among others, to promote the use of green technology and best practices to promote low-carbon sustainable and inclusive development of the region;

(v) Commission a study to explore the feasibility of establishing a SAARC mechanism which would provide capital for projects that promote low-carbon technology and renewable energy; and a Low-carbon Research and Development Institute in South Asian University;

(vi) Incorporate science-based materials in educational curricula to promote better understanding of the science and adverse effects of climate change;

(vii) Plant ten million trees over the next five years (2010-2015) as part of a regional aforestation and reforestation campaign, in accordance with national priorities and programmes of Member States;

(viii) Evolve national plans, and where appropriate regional projects, on protecting and safeguarding the archeological and historical infrastructure of South Asia from the adverse effects of Climate Change;

(ix) Establish institutional linkages among national institutions in the region to, among others, facilitate sharing of knowledge, information and capacity building programmes in climate change related areas;

(x) Commission a SAARC Inter- governmental Marine Initiative to strengthen the understanding of shared oceans and water bodies in the region and the critical roles they play in sustainable living to be supported by the SAARC Coastal Zone Management Center;

(xi) Stress the imperative of conservation of bio-diversity and natural resources and monitoring of mountain ecology covering the mountains in the region;

(xii) Commission a SAARC Inter- governmental Mountain Initiative on mountain ecosystems, particularly glaciers and their contribution to sustainable development and livelihoods to be supported by SAARC Forestry Center;

(xiii) Commission a SAARC Inter-governmental Monsoon Initiative on the evolving pattern of monsoons to assess vulnerability due to climate change to be supported by SAARC Meteorological Research Center;

(SAARC, 2010b).

Besides innovative, those measures come in a context somehow binding, or have the potential to become, for the same Summit Meeting established an Inter-governmental Expert Group on Climate Change (IGEC.CC) in charge of monitoring, reviewing the progress and making recommendations to enable the implementation of the measures contemplated in the Thimphu Statement. Having had its first meeting in June 2011, in Sri Lanka, the IGEC.CC highlighted 13 main points of debate which were widely in accordance with the IPCC (Inter-governamental Panel for Climate Change) as they recognized the biggest environmental risks threatening South-Asia as being those brought by the IPCC in 2007, and stressed the relevance of a Global Action in close assistant to the UNFCCC lines (SAARC, 2011). Worth of saying, their formal declaration included a brief historical framework which agreed on the view of this article regarding the contextual fitting of the 2010 Summit and it's Thimphu Setlement.

Still during the XVI SAARC Summit, a Convention on Cooperation on Environment was signed by the Ministers of Foreign Affairs of the Member States and provided for cooperation in the field of “environment and sustainable development through exchange of best practices and knowledge, capacity building and transfer of eco-friendly technology in a wide range of areas related to the environment” (SAARC, 2010a). The fully implementation of one such Convention, however, still waits the ratification by the signatory states, a process which is been carried out with the support of a Governing Council comprised of Environment Ministers of Member States.

Another achievement of the Thimphu Meeting was the rather symbolic selection of Mr. Appa Sherpa, the twenty time Everest Summiteer as SAARC Goodwill Ambassador for Climate Change until 2012 (SAARC, 2010a). However punctual this fact may seems the fact is that in one such field as Climate Change the issue of perception and spread of knowledge is of utmost importance, therefore, one expects his regional recognition to help launching the awareness of Global Change among grasroots comunities in South-Asia, which, despite being largelly affected by the phenomenos, are still very alienated of the whole process and the current information avaiable on it. Besides, Mr. Appa Sherpa already plays a similar role in the World Food Programme, which makes large propaganda usage of the fact that he was benefitted by the Nepali distribution of food it carrie in the Everest Area.

Conclusion

In a short conclusion one can clearly notice how the SAARC approach walks towards the direction of more binding statements and agreements, what is regionally evident by the several institutions and agreements in the process of ratification, and globally noticed if one looks to the wide usage and reference of international agreements and mechanisms that South-Asian countries belong to, therefore creating some sort of unofficial binding for those countries. Even more important, the framework which settled up the importance of the Climate Change issue to the extent of being the official theme of a SAARC Summit can be understood as a well succeeded attempt of SAARC to hold itself the lines of the environmental policy to be carried out in the region instead of simply neglecting this agenda and enabling external elements to sett up the patters for South-Asia. Even though the SAARC involvement with the issue is clearly being carried out in a collaborative way with international agents and institutions, one must notice that still there's a clear guidance of the SAARC in this whole process and that, as already mentioned, the very external collaboration is being instrumentally taken as a tool for increasing capability and strengthening the binding power of the regional statements on the issue.

As for the predominance of discursive and cognitive achievements in this field one must not credit this to the so called inefficiency of the SAARC, if it in fact exists, but rather, it must be understood that the whole process of securitizing environmental issues is largely dependent on cognitive shifts. Therefore the non-material predominance of the achievements under the umbrella of SAARC should be acknowledged not only in comparison to similar realities being shared by basically all the other countries and regions but, most of all, it must be welcomed for the cognitive step is possibly the most definitive one in the process of definitely setting environmental preservation as a priority in International Relations and in traditional politics as a whole.

BIBLIOGRAPHICAL REPHERENCES

SAARC. Regional Study on the Causes and Consequences of Natural Disasters and the Protection and Preservation of the Environment. 1991. Avaiable at : <http://www.saarc-sec.org/userfiles/Large%20Publications/CCNDPPE/index.php>. 1991.

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______. SAARC Environment Ministers Dhaka Declaration on Climate Change. 2008. Avaiable at: <http://www.google.com/url?sa=t&rct=j&q=saarc%20action%20plan%20on%20climate%20change%202008&source=web&cd=4&ved=0CDkQFjAD&url=http%3A%2F%2Fwww.nset.org.np%2Fnset%2Fclimatechange%2Fpdf%2FSAARC%2520Declaration_Dhaka.pdf&ei=ESWgTuPQPIXtrAecgYWNAw&usg=AFQjCNGRIZ6XE5ZSaDbqxEfQaY12CO7nHg&sig2=JHa1p0QXpeEwnLo9DDn9pA>. 2008.

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______. Thimphu Statement on Climate Change. 2010. Avaiable at: <http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCIQFjAA&url=http%3A%2F%2Fwww.saarc-sec.org%2Fuserfiles%2FThimphuStatementonClimateChange-29April2010.pdf&ei=jOOwTvSTO4_JrQeE9flp&usg=AFQjCNH2Z-V1OnDVntjy8nyIfA8_lA66CA&sig2=L2WwUg-vdqCMWS5qNZf6zw>. 2010b.

______. Statement by Mr. Pema L. Dorji, Director, SAARC Secretariat, on behalf of H.E. Uz. Fathimath Dhiyana Saeed, Secretary General of SAARC, Colombo, 29-30 June 2011. Avaiable at: <http://www.saarc-sec.org/statements/Statement-by-Mr.-Pema-L.-Dorji-Director-SAARC-Secretariat-on-behalf-of-H.E.-Uz.-Fathimath-Dhiyana-Saeed-Secretary-General-of-SAARC-Colombo-29-30-June-2011/8/>. 2011.