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Sustainable Development Law and Policy: Emerging Challenges

Sustainable Development Law and Policy: Emerging Challenges. CERIUM, July 13, 2006 Marie-Claire Cordonier Segger, Director, CISDL Michael Kerr, Lead Counsel, CISDL. Workshop Outline Introduction Session 1- Sustainable Development Law and Policy: Origins and Concepts

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Sustainable Development Law and Policy: Emerging Challenges

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  1. Sustainable Development Law and Policy:Emerging Challenges CERIUM, July 13, 2006 Marie-Claire Cordonier Segger, Director, CISDL Michael Kerr, Lead Counsel, CISDL

  2. Workshop Outline 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 Sustainable Development Law

  3. 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 • 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):

  4. Session I: Sustainable Development Law and Policy- Origins and Concepts Sustainable Development Law

  5. 1. Sustainable Development Law and Policy: Origins and Concepts • What is sustainable development? • How did the concept originate in Policy? • What is sustainable development law?

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

  7. 1. Sustainable Development Law and Policy: Origins and Concepts How Did the Concept Originate in Policy: Highlights • 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. • 1987 Our Common Future (Brundtland Report)- the term sustainable development defined. • 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) • 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)

  8. 1. Introduction to Sustainable Development 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.

  9. 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

  10. 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 1999 Southern Bluefin Tuna, (Australia and NZ / Japan) 2001 MOX Plant Order (Ireland / England) 2003 Johor Land Reclamation P.M. (Malaysia / Singapore) Relevant WTO Cases 2001 Chile – Swordfish Case (WTO & ITLOS) 1991 US – Tuna Dolphin Case 1996 US – Reformulated Gas Case 1998 US – Shrimp Turtle I Case 2003 US – Shrimp Turtle II Case (Compliance) 1990 Thai-Cigarettes Case 1998 EU – Beef Hormones Case 2000 EU – Asbestos Case 1. Sustainable Development Law and Policy: Origins and Concepts

  11. Sustainable Development Law Session II: The ILA Principles of International Law Related to Sustainable Development

  12. 2. Principles of Sustainable Development 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.

  13. 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 • 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

  14. 2. Principles of Sustainable Development Law 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.”

  15. 2. Principles of Sustainable Development Law 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.

  16. 2. Principles of Sustainable Development Law 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)

  17. 2. Principles of Sustainable Development Law 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

  18. 2. Principles of Sustainable Development Law 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 (soft law)- deals with stamping out corruption. Applicable directly to corporations

  19. 2. 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.”

  20. Sustainable Development Law Session III: Hypothetical Problem

  21. 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

  22. 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? Exercise: International Law on Sustainable Development Hypothetical Problem

  23. INTERNATIONAL LAWFOR SUSTAINABLE DEVELOPMENT: The Partners 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. IDLO

  24. INTERNATIONAL LAWFOR 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 / partnership@cisdl.org

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