sustainable development law and policy: emerging challenges

Sustainable Development Law Sustainable Development Law

and Policy:and Policy: Emerging ChallengesEmerging Challenges

CERIUM, July 13, 2006CERIUM, July 13, 2006

Marie-Claire Cordonier Segger, Director, CISDLMarie-Claire Cordonier Segger, Director, CISDLMichael Kerr, Lead Counsel, CISDLMichael Kerr, Lead Counsel, CISDL

Sustainable Development LawSustainable Development Law

Workshop OutlineWorkshop Outline

Introduction Introduction Session 1- Sustainable Development Law and Session 1- Sustainable Development Law and

Policy: Origins and ConceptsPolicy: Origins and Concepts Session 2- The ILA Principles of International Law Session 2- The ILA Principles of International Law

Related to Sustainable Development Related to Sustainable Development Session 3- Hypothetical ProblemSession 3- Hypothetical Problem Group Reports to PlenaryGroup Reports to Plenary ConclusionsConclusions

CISDL: IntroductionCISDL: 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

•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)

The Centre for International Sustainable Development Law (CISDL):


Session I: Session I: Sustainable Development Law Sustainable Development Law and Policy- Origins and Conceptsand Policy- Origins and Concepts

1. 1. Sustainable Development Law and Sustainable Development Law and

Policy: Origins and ConceptsPolicy: Origins and Concepts

What is sustainable development?What is sustainable development? How did the concept originate in How did the concept originate in

Policy?Policy? What is sustainable development What is sustainable development

law?law?

What is Sustainable Development?What is Sustainable Development?

1987 Brundtland Report “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”,

Originally conceived through an environmental perspective as the need to reconcile economic development with protection of the environment. (1992 Rio Earth Summit)

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.

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. 1. Sustainable Development Law Sustainable Development Law and Policy: Origins and Conceptsand Policy: Origins and Concepts

How Did the Concept Originate in Policy: HighlightsHow Did the Concept Originate in Policy: Highlights

1972 The first global environment conference: United Nations Conference on 1972 The first global environment conference: United Nations Conference on the Human Environment (UNCHE) Stockholm, Sweden – the word “sustainable the Human Environment (UNCHE) Stockholm, Sweden – the word “sustainable development” not used. But ideas and the links between the natural development” not used. But ideas and the links between the natural environment and human needs were on the table laying the foundation for the environment and human needs were on the table laying the foundation for the concept.concept.

1987 Our Common Future (Brundtland Report)- the term sustainable 1987 Our Common Future (Brundtland Report)- the term sustainable development defined.development defined.

1992 United Nations Conference on Environment and Development (UNCED), 1992 United Nations Conference on Environment and Development (UNCED), Rio de Janeiro, BrazilRio de Janeiro, Brazil- the Rio Declaration- the Rio Declaration- Agenda 21 (calls for state party action)- Agenda 21 (calls for state party action)- 1992 – 2002 UN Commission on Sustainable Development (1 – 10)- 1992 – 2002 UN Commission on Sustainable Development (1 – 10)

2002 World Summit on Sustainable Development (WSSD), Johannesburg, South 2002 World Summit on Sustainable Development (WSSD), Johannesburg, South AfricaAfrica- Johannesburg Declaration, Johannesburg Plan of Implementation. (calls for - Johannesburg Declaration, Johannesburg Plan of Implementation. (calls for state party action)state party action)- Partnerships- Partnerships-2002 – 2012 UN Commission on Sustainable Development (10 – 20)-2002 – 2012 UN Commission on Sustainable Development (10 – 20)


Environmental Law(atmosphere, water, biodiversity)

Economic Law(Trade, Investment, Competition,

Natural Resources)

Social Law (Human Rights, Social

Development, Health Law)

Sustainable Development Law:

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.

1. Introduction to Sustainable 1. Introduction to Sustainable Development LawDevelopment Law


Where does sustainable development translate into law?Where does sustainable development translate into law?Public Int’l Law TreatiesPublic Int’l Law Treaties

Over 300 international/regional treaties were listed in 2002 WSSD plan of Over 300 international/regional treaties were listed in 2002 WSSD plan of implementation. implementation.

Three Tracks of Important International Treaties:Three Tracks of Important International Treaties:Environment:Environment:

-1972 – 92 CITES, Basel Hazardous Wastes, Montreal Protocol-1972 – 92 CITES, Basel Hazardous Wastes, Montreal Protocol-1992 – 2004 UN CBD and Cartagena Protocol, UN FCCC and Kyoto -1992 – 2004 UN CBD and Cartagena Protocol, UN FCCC and Kyoto

Protocol, UN CCD (desertification)Protocol, UN CCD (desertification)Economic:Economic:

-1947 - 2004 GATT/WTO and regional/bilateral agreements (EU, NAFTA, -1947 - 2004 GATT/WTO and regional/bilateral agreements (EU, NAFTA, Mercosur, CAN, SADC, FTAA)Mercosur, CAN, SADC, FTAA)

Social:Social: 1947 – 2004 UN Human Rights Covenants & Instruments, ILO Conventions. 1947 – 2004 UN Human Rights Covenants & Instruments, ILO Conventions.

International and national laws: state parties agree to take domestic International and national laws: state parties agree to take domestic action. action.

Public Int’l Law Public Int’l Law “Jurisprudence” on “Jurisprudence” on Sustainable Development Sustainable Development (1893 –)(1893 –)

Significant International Significant International Court of Justice DecisionsCourt of Justice Decisions

1893 Pacific Fur Seal Arbitration 1893 Pacific Fur Seal Arbitration (United States / Canada)(United States / Canada)1907 Trail Smelter Arbitration 1907 Trail Smelter Arbitration (United States / Canada)(United States / Canada)1974 Nuclear Tests Cases ICJ 1974 Nuclear Tests Cases ICJ (Australia and NZ / France)(Australia and NZ / France)1993 Maritime Delimitation ICJ 1993 Maritime Delimitation ICJ (Denmark / Norway)(Denmark / Norway)1996 Legality of Use of Nuclear 1996 Legality of Use of Nuclear Weapons ICJ (Advisory Op)Weapons ICJ (Advisory Op)1997 Gabcikovo – Nagymaros, 1997 Gabcikovo – Nagymaros, ICJ (Hungary / Slovakia)ICJ (Hungary / Slovakia)

Relevant ITLOS CasesRelevant ITLOS Cases 1999 Southern Bluefin Tuna, 1999 Southern Bluefin Tuna,

(Australia and NZ / Japan)(Australia and NZ / Japan) 2001 MOX Plant Order (Ireland 2001 MOX Plant Order (Ireland

/ England)/ England) 2003 Johor Land Reclamation 2003 Johor Land Reclamation

P.M. (Malaysia / Singapore)P.M. (Malaysia / Singapore)Relevant WTO CasesRelevant WTO Cases 2001 2001 Chile – Swordfish CaseChile – Swordfish Case

(WTO & ITLOS)(WTO & ITLOS) 1991 1991 US – Tuna Dolphin CaseUS – Tuna Dolphin Case 1996 1996 US – Reformulated Gas US – Reformulated Gas

CaseCase 1998 1998 US – Shrimp Turtle I CaseUS – Shrimp Turtle I Case 2003 2003 US – Shrimp Turtle II US – Shrimp Turtle II

CaseCase (Compliance) (Compliance) 1990 1990 Thai-Cigarettes CaseThai-Cigarettes Case 1998 1998 EU – Beef Hormones CaseEU – Beef Hormones Case 2000 2000 EU – Asbestos Case EU – Asbestos Case

1. 1. Sustainable Development Law and Sustainable Development Law and Policy: Origins and ConceptsPolicy: Origins and Concepts


Session II:

The ILA Principles of

International Law Related to

Sustainable Development

2. Principles of Sustainable 2. Principles of Sustainable Development LawDevelopment Law

International Law Association (ILA) has provided a suitable framework for understanding the principles which underpin sustainable development law.

ILA New Delhi 2002 Declaration of Principles of International Law Relating to Sustainable Development

Contains seven principles which are addressed in the following slides.


1. The principle of integration and interrelationship, in particular in relation to human rights and social, economic and environmental objectives

Underpinning this notion, is the idea integration (economic, environmental and social) when developing legal instruments or approaching judicial decisions.

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. The principle of the precautionary approach to human health, natural resources and ecosystems

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.”


3. The principle of common but differentiated responsibilities

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.


4. The principle of public participation and access to information and justice

Examples: 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.’’

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)


5. The duty of States to ensure sustainable use of natural resources

Fisheries prime example: plundering of world fishing stocks

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.

More recently UN Biodiversity Convention 1992


6. The principle of good governance

Entails: democratic and transparent decision-making procedures and

financial accountability; taking effective measures to combat official or other corruption; and 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-Global Compact principle 10 (soft law)- deals with stamping out (soft law)- deals with stamping out

corruption. Applicable directly to corporationscorruption. Applicable directly to corporations

2. Principles of Sustainable Development Law2. Principles of Sustainable Development Law

7. The principle of equity and the eradication of poverty

Equity Entails: 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.

Secondly, Intra-generational equity -The right of all peoples within the current generation to have fair access to natural resources and opportunities.

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: Poverty barrier to sustainable development- poverty can lead to exploitation of

natural resources and violation of human rights.

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.”


Session III: Hypothetical Problem

Exercise: International Law on Exercise: International Law on Sustainable Development Sustainable Development

Hypothetical ProblemHypothetical Problem 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 Exercise: International Law on Sustainable Development Sustainable Development

Hypothetical ProblemHypothetical 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?

IINTERNATIONALNTERNATIONAL L LAWAW FORFOR S SUSTAINABLEUSTAINABLE DDEVELOPMENT: EVELOPMENT:

The PartnersThe Partners

Centre for International Sustainable Centre for International Sustainable Development LawDevelopment Law

International Development Law International Development Law Organization &Organization &

International Law AssociationInternational Law Associationwith support from UNEP Legal, World Bank Legal, United Nations Treaty Secretariat, and links to many University Law Faculties and Academies

around the world.

IDLO

IINTERNATIONALNTERNATIONAL L LAWAW FORFOR S SUSTAINABLEUSTAINABLE DDEVELOPMENT: EVELOPMENT:

Because Effective Laws Matter.Because Effective Laws Matter.

Contact:Marie-Claire Cordonier Segger / Ashfaq Khalfan

Centre for International Sustainable Development LawMcGill University Faculty of Law 3661 Peel Street, Montreal, Quebec, Canada

Tel: +1 514 398 8918 / Fax: +1 514 398 8197 / [email protected]

sustainable development law and policy: emerging challenges

Documents

term sustainable development

sustainable development

word sustainable development

economic development

social development

development unced

sustainable societies

brundtland report development