Transcript Cordonier_Segger-Sustainable_development

Sustainable Development Law and Policy:
Emerging Challenges
CERIUM, July 13, 2006
Marie-Claire Cordonier Segger, Director, CISDL
Michael Kerr, Lead Counsel, CISDL
Sustainable Development Law
Workshop Outline
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Introduction
Session 1- Sustainable Development Law and
Policy: Origins and Concepts
Session 2- The ILA Principles of International Law
Related to Sustainable Development
Session 3- Hypothetical Problem
Group Reports to Plenary
Conclusions
CISDL: Introduction
• Based at the Faculty of Law of McGill University
in Montreal, Canada.
• Mission is to promote sustainable societies and
the protection of ecosystems by advancing the
understanding, development and implementation
of international sustainable development law.
CISDL Legal Programmes
The Centre for
International Sustainable
Development Law
(CISDL):
•Trade investment and competition law
•Biodiversity law
•Climate change and vulnerability law
•Sustainable human rights law and poverty
eradication
•Natural resources law
•Cross cutting issues (gender, CSR)
Sustainable Development Law
Session I: Sustainable Development Law and PolicyOrigins and Concepts
1. Sustainable Development Law and Policy:
Origins and Concepts
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What is sustainable development?
How did the concept originate in Policy?
What is sustainable development law?
1. Sustainable Development Law and Policy:
Origins and Concepts
What is Sustainable Development?
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1987 Brundtland Report “development that meets the needs of the present without
compromising the ability of future generations to meet their own needs”,
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Originally conceived through an environmental perspective as the need to reconcile
economic development with protection of the environment. (1992 Rio Earth
Summit)
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By the time of the World Summit on Sustainable Development held 2002 in
Johannesburg, sustainable development had acquired a more prominent social agenda- so
we began to talk of the three pillars of sustainable development: economic development,
social development and environmental protection.
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Overarching objectives of sustainable development include: Poverty eradication, changing
unsustainable patterns of production and consumption, and protecting and managing the
natural resource base of economic and social development.
1. Sustainable Development Law and Policy:
Origins and Concepts
How Did the Concept Originate in Policy: Highlights
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1972 The first global environment conference: United Nations Conference on the Human
Environment (UNCHE) Stockholm, Sweden – the word “sustainable development” not used. But
ideas and the links between the natural environment and human needs were on the table laying the
foundation for the concept.
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1987 Our Common Future (Brundtland Report)- the term sustainable development defined.
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1992 United Nations Conference on Environment and Development (UNCED), Rio de Janeiro,
Brazil
- the Rio Declaration
- Agenda 21 (calls for state party action)
- 1992 – 2002 UN Commission on Sustainable Development (1 – 10)
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2002 World Summit on Sustainable Development (WSSD), Johannesburg, South Africa
- Johannesburg Declaration, Johannesburg Plan of Implementation. (calls for state party action)
- Partnerships
-2002 – 2012 UN Commission on Sustainable Development (10 – 20)
1. Introduction to Sustainable Development Law
Sustainable
Development Law:
Environmental Law
(atmosphere, water, biodiversity)
Law at the area of
intersection between three
fields.
It also is about how the law
can promote the goals and
objectives of sustainable
development.
Social Law
(Human Rights, Social
Development, Health Law)
Economic Law
(Trade, Investment, Competition,
Natural Resources)
1. Sustainable Development Law and Policy:
Origins and Concepts
Where does sustainable development translate into law?
Public Int’l Law Treaties
Over 300 international/regional treaties were listed in 2002 WSSD plan of implementation.
Three Tracks of Important International Treaties:
Environment:
-1972 – 92 CITES, Basel Hazardous Wastes, Montreal Protocol
-1992 – 2004 UN CBD and Cartagena Protocol, UN FCCC and Kyoto
Protocol, UN CCD (desertification)
Economic:
-1947 - 2004 GATT/WTO and regional/bilateral agreements (EU, NAFTA,
Mercosur, CAN, SADC, FTAA)
Social:
1947 – 2004 UN Human Rights Covenants & Instruments, ILO Conventions.
International and national laws: state parties agree to take domestic action.
1. Sustainable Development Law and Policy:
Origins and Concepts
Public Int’l Law “Jurisprudence” on
Sustainable Development (1893 –)
Significant International Court of
Justice Decisions
1893
Pacific Fur Seal Arbitration (United
States / Canada)
1907 Trail Smelter Arbitration (United
States / Canada)
1974 Nuclear Tests Cases ICJ (Australia
and NZ / France)
1993 Maritime Delimitation ICJ
(Denmark / Norway)
1996 Legality of Use of Nuclear
Weapons ICJ (Advisory Op)
1997 Gabcikovo – Nagymaros, ICJ
(Hungary / Slovakia)
Relevant ITLOS Cases
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1999 Southern Bluefin Tuna, (Australia
and NZ / Japan)
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2001 MOX Plant Order (Ireland /
England)
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2003 Johor Land Reclamation P.M.
(Malaysia / Singapore)
Relevant WTO Cases
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2001 Chile – Swordfish Case (WTO &
ITLOS)
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1991 US – Tuna Dolphin Case
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1996 US – Reformulated Gas Case
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1998 US – Shrimp Turtle I Case
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2003 US – Shrimp Turtle II Case
(Compliance)
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1990 Thai-Cigarettes Case
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1998 EU – Beef Hormones Case
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2000 EU – Asbestos Case
Sustainable Development Law
Session II:
The ILA Principles of
International Law
Related to Sustainable
Development
2. Principles of Sustainable Development Law
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International Law Association (ILA) has provided a
suitable framework for understanding the principles which
underpin sustainable development law.
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ILA New Delhi 2002 Declaration of Principles of
International Law Relating to Sustainable Development
Contains seven principles which are addressed in the
following slides.
2. Principles of Sustainable Development Law
1. The principle of integration and interrelationship, in particular in
relation to human rights and social, economic and environmental
objectives
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Underpinning this notion, is the idea integration (economic, environmental and social)
when developing legal instruments or approaching judicial decisions.
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Single minded approach is the root cause of many of the environmental, social and
economic problems we face today.
Example:
-Trade agreements- wrong to view them as purely economic instruments to facilitate trade. Trade has
enormous environmental and social consequences -good and bad: WTO agreement has SD as an
objective. Regional/bilateral FTAs now have environmental and labour chapters/ and even side
agreements. e.g. NAFTA
-US Trade Act (2002) now in effect requires inclusion of environmental and labour objectives in trade
agreements.
- U.S. Regulations (Executive Order 13141) now mandate environmental impact assessment of trade
agreements
2. Principles of Sustainable Development Law
2. The principle of the precautionary approach to human health, natural resources
and ecosystems
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Commits States, international organizations and the civil society, particularly the scientific and
business communities, to avoid human activity which may cause significant harm to human
health, natural resources or ecosystems, in the face of scientific uncertainty.
Example:
Climate change- one of the greatest threats posed to the world- economically, environmentally
and socially.
Precaution underpins the entire UN Framework Convention on Climate Change
Art. 3(3), “The Parties should take precautionary measures to anticipate, prevent or minimize the
causes of climate change and mitigate its adverse effects. Where there are threats of serious or
irreversible damage, lack of full scientific certainty should not be used as a reason for postponing
such measures, taking into account that policies and measures to deal with climate change should
be cost-effective so as to ensure global benefits at the lowest possible cost.”
2. Principles of Sustainable Development Law
3. The principle of common but differentiated responsibilities
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Entails:
 Firstly, the common responsibility of States for the protection of the
environment, or parts of it, at the national, regional and global levels
 Secondly, the need to take into account the different circumstances,
particularly in relation to each State’s contribution to the evolution of a
particular problem and its ability to prevent, reduce and control the
threat.
Example -again climate change:
UNFCCC underpinned by notion of common responsibility to deal with
climate change.
But under the Kyoto Protocol to the UNFCC specific commitments only for developed
country parties, and allows for differentiation in reporting requirements.
2. Principles of Sustainable Development Law
4. The principle of public participation and
access to information and justice
Examples:
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Public Participation: International Labour Organizations’s (ILO) 1989 Convention on
Indigenous and Tribal Peoples recognizes ‘‘[t]he rights of the peoples concerned to the
natural resources pertaining to their lands . . . [T]hese rights include the right of these
peoples to participate in the use, management and conservation of these resources.’’
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Access to information and justice: The 1998 Aarhus Convention on Access to
Information, Public Participation in Decision-making and Access to Justice in
Environmental Matters (Aarhus Convention)
2. Principles of Sustainable Development Law
5. The duty of States to ensure sustainable use of
natural resources
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Fisheries prime example: plundering of world fishing stocks
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The 1952 Tokyo Convention for the High Seas Fisheries of the North Pacific Ocean
expresses the conviction of the parties that it will best serve the common
interest of mankind, as well as the interests of the contracting parties, to
ensure the maximum sustained productivity of the fishery resources of the
North Pacific Ocean.
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More recently UN Biodiversity Convention 1992
2. Principles of Sustainable Development Law
6. The principle of good governance
Entails:
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democratic and transparent decision-making procedures and financial accountability;
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taking effective measures to combat official or other corruption; and
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respecting the principle of due process in their procedures and to observe the rule of
law and human rights.
Example:
Corruption cited as one of the leading obstacles to sustainable development
-OECD Convention on Combating Bribery of Foreign Public Officials in International Business
Transactions (1997)
-Global Compact principle 10 (soft law)- deals with stamping out corruption. Applicable
directly to corporations
2. Principles of Sustainable Development Law
7. The principle of equity and the eradication of poverty
Equity Entails:
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Firstly, Inter-generational equity- The present generation has a right to use and enjoy the
resources of the Earth but is under an obligation to take into account the long-term impact of its
activities and to sustain the resource base and global environment for the benefit of future
generations.
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Secondly, Intra-generational equity -The right of all peoples within the current generation to
have fair access to natural resources and opportunities.
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Example: Principle 3 of the Rio Declaration (1992): “The right to development must be fulfilled so
as to equitably meet developmental and environmental needs of present and future generations.”
Poverty Eradication:
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Poverty barrier to sustainable development- poverty can lead to exploitation of natural resources
and violation of human rights.
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Example: Principle 5 of the Rio Declaration (1992): “All States and all people shall cooperate in
the essential task of eradicating poverty as an indispensable requirement for sustainable
development, in order to decrease the disparities in standards of living and better meet the needs
of the majority of the people of the world.”
Sustainable Development Law
Session III: Hypothetical Problem
Exercise: International Law on Sustainable
Development Hypothetical Problem
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This exercise will be conducted in teams of 4.
Please elect a chair, who will take notes and report back to the plenary of
the course.
You are to play the roles of a group of expert legal advisors for the parties
to two conflicting disputes in international law, involving sustainable
development of a fishery.
The task of your group is to design the scope, principles and operational
provisions of an accord among the disputing parties, identifying rights and
obligations of the parties (and any others), and to predict any future
challenges (and how to address them).
Design a short, 1 or 2 page description of your accord, detailing rights &
obligations, and future challenges & solutions, to present to the group and
hand in to the instructors.
Exercise: International Law on Sustainable
Development Hypothetical Problem
Each Groups’ Final Report will include:
 (1) What is the scope, principles and operational
provisions, broadly, of your accord?
 (2) What are the rights and obligations of the
parties to the accord (and any others)?
 (3) What future challenges can you predict and
what potential solutions would address them?
INTERNATIONAL LAW FOR SUSTAINABLE DEVELOPMENT:
The Partners
IDLO
Centre for International Sustainable
Development Law
International Development Law Organization &
International Law Association
with support from UNEP Legal, World Bank Legal, United Nations Treaty Secretariat,
and links to many University Law Faculties and Academies around the world.
INTERNATIONAL LAW FOR SUSTAINABLE DEVELOPMENT:
Because Effective Laws Matter.
Contact:
Marie-Claire Cordonier Segger / Ashfaq Khalfan
Centre for International Sustainable Development Law
McGill University Faculty of Law 3661 Peel Street, Montreal, Quebec, Canada
Tel: +1 514 398 8918 / Fax: +1 514 398 8197 / [email protected]