Principles, Practices and Prospects: Sustainable Development through International Agreements: Principles, Practices and Prospects: Sustainable Development through International Agreements Sustainable Development in National and International Law: What did the Brundtland Report do to Legal Thinking and Legal Development, and where can we go from here? Oslo Norway 2007 Marie-Claire Cordonier Segger, MEM (Yale), BCL & LLB (McGill) Director, Centre for Int’l Sustainable Development Law Deputy Director, Sustainable Development & Int’l Affairs, Canadian Ministry of Natural Resources


CISDL: CISDL An Independent Legal Research Centre, based at McGill (Montreal), Oxford, Capetown & San Jose. Mission: To promote sustainable societies and the protection of ecosystems by advancing the understanding, development and implementation of international sustainable development law. The Centre for International Sustainable Development Law (CISDL)


CISDL: CISDL CISDL Programming: Dialogue: Conferences (Sustainable Justice 2002: Implementing International Sustainable Development Law, Montreal); Legal Experts Panels (WSSD, UN CBD, WTO, UNCCD); Academic Workshops (McGill, Yale, Oxford), etc. Curriculum: Legal Seminars & Courses (McGill, Oxford, UVic, Capetown, UdM, Cambridge, Chile, etc.); Judicial Education (UNEP, IDLO, NJI). Research: Six Research Programmes, led by nine Lead Counsel, with over 80 Legal Research and Associate Fellows and a Student Research Group. Publications: Sustainable Development Law: Principles, Practices & Prospects (Oxford University Press, 2004); Sustainable Justice (Martinus Nijhoff, 2004); Sustainable Developments in World Trade Law (Kluwer Law International, 2005); World Trade Law in Practice (Globe, 2006); etc. Partnerships: International Law for Sustainable Development Experts Panel Event at the 2002 WSSD launched the CISDL-IDLO-ILA ILSD Partnership. The Centre for International Sustainable Development Law (CISDL)


Sustainable Development Law: Sustainable Development Law Outline Building on the Brundtland Report: Sustainable Development in Int’l Law and Policy Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development Progress: ‘Sustainable Developments’ Within and Beyond Int’l Law


Sustainable Development Law: Sustainable Development Law Building on the Brundtland Report: Sustainable Development in Int’l Law and Policy


Building on the Brundtland Report: Sustainable Development in Int’l Law and Policy : Building on the Brundtland Report: Sustainable Development in Int’l Law and Policy Legal dimensions of ‘Our Common Future’ - Chapter 12 on legal and institutional change (p 330) - Tracing the Annex 1 EPSD Principles International policy-making has embraced sustainable development as a global / regional / local objective. - Timeline of global / regional events & declarations - Work of intl institutions (UNCSD, UNEP/UNDP, WB, etc.) International law, though slower, has advanced. Sustainable development has been raised to address economic, environmental and social challenges in: - international tribunals, - international negotiations, and - rule / standard-making process of international organizations…


Building on the Brundtland Report: Sustainable Development in Int’l Law and Policy: International Sustainable Development Policy-Making Process (1972 –) 1972 UNCHE, Stockholm, Sweden (mainly environmental) 1987 Our Common Future (Brundtland Report – global focus on SD) 1992 Earth Summit (UNCED), Rio de Janeiro, Brazil - the Rio Declaration - Agenda 21 (also 3 treaties & forest principles) 1992 – 2002 UN Commission on Sustainable Development (1 – 10) UN Regional Commissions (ie- 1996 Santa Cruz Americas Summit on SD) 1997 UN General Assembly Special Session, New York 2002 World Summit on Sustainable Development, Johannesburg, South Africa - Johannesburg Declaration, - Johannesburg Plan of Implementation - Partnerships 2002 – 2012 UN Commission on Sustainable Development (10 – 20) Building on the Brundtland Report: Sustainable Development in Int’l Law and Policy


Building on the Brundtland Report: Sustainable Development in Int’l Law and Policy: Significant ICJ 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) 200X XXXX, ICJ (Argentina / Uruguay) Relevant ITLOS Cases 1999 Southern Bluefin Tuna Prov. Measures (Australia and NZ / Japan) 2001 MOX Plant Order (Ireland / England) 2003 Johor Land Reclamation Prov. Measures (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 Building on the Brundtland Report: Sustainable Development in Int’l Law and Policy


Building on the Brundtland Report: Sustainable Development in Int’l Law and Policy: Building on the Brundtland Report: Sustainable Development in Int’l Law and Policy Three Tracks of Important International Treaties: I: 1972 – 92 CITES, Basel Hazardous Wastes, Vienna Ozone & Montreal Protocol II: 1992 – 2004 UN CBD and Cartagena Protocol, UN FCCC and Kyoto Protocol, UN CCD (desertification), Stockholm POPs & Rotterdam PICs. 1947 - 2004 GATT/WTO and regional agreements (EU, NAFTA, Mercosur, CAN, SADC, Cotonou) 1947 – 2004 UN Human Rights Covenants & Instruments (1966 ICCPR & ICESCR), ILO Conventions, Regional Human Rights Treaties & Courts… More than 300 Other Relevant International Accords: 1972 – 2002 ITLOS, Regional Fisheries and Seas Conventions 1968 /02 African Nature Conservation Treaty 1985 ASEAN Convention 1998 Aarhus Convention 1998 Espoo Convention, And many others…


Building on the Brundtland Report: Sustainable Development in Int’l Law and Policy: One Example: Sustainable Development in World Trade Law WTO Agreement Preamble: “Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to … allowing for the optimal use of the world's resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with [members] respective needs and concerns at different levels of economic development, ...” Recent RTAs: Preambular commitments ‘to promote sustainable development’ WTO US – Shrimp/Turtle case, AB Decision, Para 120: “The preamble of the WTO Agreement -- which informs not only the GATT 1994, but also the other covered agreements -- explicitly acknowledges ‘the objective of sustainable development’”[FT 107] Footnote 107: “This concept has been generally accepted as integrating economic and social development and environmental protection. [Refs Brundtland Report, etc]” WTO Shrimp/Turtle case, Recourse to Art. 21.5 by Malaysia, Para 5.53: “In that framework, assessing first the object and purpose of the WTO Agreement, we note that the WTO Preamble refers to the notion of "sustainable development".[FT 202] This means that in interpreting the terms of the chapeau, we must keep in mind that sustainable development is one of the objectives of the WTO Agreement.” Footnote 202: “…the concept [in A21 action plans means] to put in place development that is sustainable - i.e. that "meets the needs of the present generation without compromising the ability of future generations to meet their own needs".” [Refs 1992 Rio Declaration & Agenda 21, also Brundtland Report]. WTO 2001 Doha Declaration: “We strongly reaffirm our commitment to the objective of sustainable development, as stated in the Preamble to the Marrakesh Agreement. We are convinced that the aims of upholding and safeguarding an open and non-discriminatory multilateral trading system, and acting for the protection of the environment and the promotion of sustainable development can and must be mutually supportive.”(Para 6, also see Para 51)… Building on the Brundtland Report: Sustainable Development in Int’l Law and Policy


Building on the Brundtland Report: Sustainable Development in Int’l Law and Policy: So… Sustainable Development in International Law? 1987 Brundtland Report, 1992 UNCED, 2002 WSSD: “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”, balanced integration of social, economic and environmental aspects in development decision-making, socially and environmentally sound development, etc. “… need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development.” (Case Concerning the Gabčíkovo-Nagymaros Project, ICJ, 1997, para 140) Over 300 treaties were highlighted by States as contributing to SD, in the 2002 WSSD Johannesburg Plan of Implementation. SD is recognized as an explicit objective in more than 40 recent multilateral & regional treaties, including trade treaties (which reflect SD principles). 2002 ILA New Delhi Declaration on Principles of International Law related to Sustainable Development: 7 principles of international law found in treaties / laws on SD. Building on the Brundtland Report: Sustainable Development in Int’l Law and Policy


Building on the Brundtland Report: Sustainable Development in Int’l Law and Policy: Sustainable Development Law: Law at the area of intersection between three fields. Broad purpose is: “socially, economically & environ-mentally sound development that can last.” Building on the Brundtland Report: Sustainable Development in Int’l Law and Policy


Sustainable Development Law: Sustainable Development Law Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development


Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development: Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development 1987 Proposed Legal Principles for Environmental Protection and Sustainable Development Adopted by the WCED Experts Group on Environmental Law (22 Principles from ‘Learned Jurists’) I. General Principles, Rights & Responsibilities Principle 1: Fundamental human right to environment for health and well-being... Principle 2: Inter-generational equity... Principle 3: Commitment to conservation and sustainable use... Principle 4: Environmental standards and monitoring... Principles 5 - 6: Prior environmental asessments... Also prior notification, access and due process... Principle 7: Sustainable development and assistance... Principle 8: General obligation to cooperate... II. Principles, Rights & Obligations on Transboundary Natural Resources & Environmental Interferences Principle 9: Reasonable and equitable use Principle 10: Prevention and abatement Principles 11 -12: Strict liability... Also prior agreements when prevention costs greatly exceed harm Principle 13: Non-discrimination (national treatment) Principles 14 - 19: General obligation to cooperate on transboundary environmental problems... Also exchange of information; prior assessment and notification; prior consultations; coorperative arrangements for environmental assessment and protection; and contingency plans for emergency situations. Principle 20: Equal access and treatment III. State Responsibility IV. Peaceful Settlement of Disputes


Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development: Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development 1992 Rio Declaration (27 Principles as ‘Soft Law’) General Principle 1: Human beings are centre of sustainable development... Principle 2: Sovereign rights re: natural resources, and responsibility re: damage... Substantive: Principle 3: Right to development, equitable for present and future generations. Principle 4: Environmental protection integral part of development process... Principle 5: Cooperate to eradicate poverty, decrease disparities in standards of living, and meet needs of majority. Principle 6: Special priority to needs of least developed, most environmentally vulnerable... Principle 7: Global partnership to conserve, protect & restore health and integrity of the Earth's ecosystem, with common but differentiated responsibilities. Principle 8: Reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies. Principle 12: No arbitrary or unjustifiable discrimination or a disguised restriction on international trade, avoid unilateral actions, decide by international consensus. Principle 13: National and international liability and compensation. Principle 14: Discourage or prevent relocation and transfer of activities/substances of severe environmental degradation or harmful to human health.


Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development: Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development 1992 Rio Declaration, cont. Principle 15: Precautionary approach, lack of full scientific certainty not used as a reason for postponing measures to prevent degradation. Principle 16: Internalization of environmental costs, use of economic instruments, so that polluter should, in principle, bear the cost of pollution. Principles 23 – 26: Protection of oppressed peoples natural resources, protection for the environment in times of armed conflict, peace needed for SD. Procedural Principle 9: Build capacity, scientific and technological knowledge, and transfer techology... Principle 10: Participation, awareness & access to information, access to judicial and administrative proceedings, including redress and remedy. Principle 11: Effective environmental legislation. Environmental standards, management objectives and priorities reflect context. Principle 17: Environmental impact assessment. Principle 18: Obligation to immediately notify others of disasters or emergencies, and int‘l committment to help afflicted States. Principle 19: Prior and timely notification and relevant information, consultation with others at early stage and in good faith. Principle 20 – 22: Involvement of women, youth, indigenous peoples Principle 27: Commitment to cooperate in good faith, to partnership and to further development of international law in the field of sustainable development.


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


Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development: Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development The duty of States to ensure sustainable use of natural resources In accordance with int’l law, States have sovereign right to manage natural resources pursuant to environmental and developmental policies, & responsibility to ensure that activities within jurisdiction / control do not cause significant damage to environments of other States / beyond. States under duty to manage natural resources in rational, sustainable & safe way for development of their peoples; conservation & sustainable use of natural resources… Common concerns of humankind & common heritage of humankind. Reflected in UN Framework Convention on Climate Change Preamble (sovereignty & responsibility); UN Convention on Biological Diversity Preamble (sovereignty & responsibility), Art 3 Principle and Art 10 (sustainable use); in UN Convention to Combat Desertification at Art 3(c) Principles (work toward sustainable use of scarce water & land) and in Art 10.4 (national action plans), Art 11 (regional and sub-regional actions), Art 17.1(a) (research and development), Art 19.1(c) & (e) (capacity-building); in the WTO Agreement at Preamble; in FAO Seed Treaty at Art 1.1 Objective (conservation and sustainable use of PGRFA) then operational in Art 6 (measures for sustainable use of plant genetic resources).


Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development: Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development The principle of equity and the eradication of poverty Inter-generational equity (right of future generations to fair level of common patrimony) & intra-generational equity (right of all peoples currently to fair access to natural resources). Present generation holds right to use resources but also obligation to take into account long-term impact of activities, to sustain the resource base & global environment for the benefit of future generations. Recognizes right to development, and duty to cooperate to eradicate poverty, if in a position to do so. Reflected in UN Convention on Biological Diversity at Art 15.7 (access and equitable benefit sharing); in UN Framework Convention on Climate Change at Preamble (present and future generations) and at Art 3 Principles (equity); in UN Convention to Combat Desertification at Art 16(g) (traditional knowledge sharing), Art 17.1(c) (TK research & development), Art 18.2(b) (tech transfer); and in FAO Seed Treaty Preamble (responsibility & benefit-sharing), and at Art 1.1 Objective (ABS) and Arts 10, 11, 12, 13 (multilateral system of ABS for plant genetic resources).


Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development: Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development The principle of the precautionary approach to human health, natural resources and ecosystems Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent risks to human health, natural resources and ecosystems. Transfers burden of proving that cost-effective preventive measures are not necessary onto proponent of a potentially damaging activity, in absence of scientific certainty. Reflected in UN Convention on Biological Diversity in Preamble and operational at Art 14.1(b) (likely adverse impacts) and Art 8(g) (LMOs); in Cartagena Protocol on Biosafety at Preamble (precaution), at Art 1 (precaution), at Art 7 (AIA), at Art 10.6 (decision-making), at Art 11.8 (FFP), at Art 15 (risk assessment) and at Annex III.4; in UN Framework Convention on Climate Change at Art 3 Principles (precaution); WTO SPS Agreement at Art 5.7 (provisional measures); and NAFTA at Art 905 (use of international standards) and 907.3 (assessment of risk / provisional regs).


Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development: Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development The principle of common but differentiated responsibilities Recognises common responsibility of States for sustainable development and need to take into account the different circumstances, particularly in relation to each State’s contribution to the evolution of particular problem and its ability to prevent, reduce and control the threat. Reflected in UN Framework Convention on Climate Change Preamble (cbd), at Art 3 Principles and Art 4 Commitments (Annex 1 and non-Annex 1); in Kyoto Protocol at Art 10 (cbd in inventories & programmes) and Art 12 (CDM); in UN Convention to Combat Desertification at Art 3 Principles (cbd), Art 4, Art 5, Art 6 (affected and developed country party obligations) and Art 7 (for Africa); in the WTO Agreement at Preamble; and in FAO Seed Treaty at Art 7.2(a) (developing country capabilities), at Art 8 (technical assistance), Art 15.1(b)iii (benefits to least developed and centres of diversity), and Art 18.4(d) (financing).


Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development: Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development The principle of public participation and access to information and justice Focuses on human rights to hold and express opinions and to seek, receive and impart ideas; to access to appropriate, comprehensible and timely information; and to access effective judicial or administrative procedures to challenge decisions and to claim compensation. Reflected in UN Convention on Biological Diversity at Art 13 (public education and awareness) and Art 14.1(a) (participation in impact assessment); Cartagena Protocol on Biosafety at Art 23 (public awareness and participation); UN Convention to Combat Desertification at Art 3 (a) Principles and Art 10.2(f) (national action plans); WTO Agreement at V.2 (consult NGOs); FAO Seed Treaty at Art 9.2(c) (farmers rights to participate), and in Aarhus Convention on Public Participation, Access to Information and Access to Justice (infra).


Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development: Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development The principle of good governance Relates to democratic and transparent decision-making procedures and financial accountability; combating official or other corruption; respecting the principle of due process in their procedures, observing the rule of law and respecting human rights. Reflected in UN Convention to Combat Desertification at Art 3(c) Principles, and Art 10.2(e) (institutional frameworks for national action plans), Art 11 (subregional and regional) and Art 12 (int’l cooperation); in FAO Seed Treaty partially at Art 9 (farmers rights); and in UN Convention Against Corruption at Preamble, at Art 5.1 (rule of law) and at Art 62.1 (measures for sustainable development). See also Commission on Human Rights Resolution 2001/72 “The Role of Good Governance in the Promotion of Human Rights.”


Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development: Principles and Practices: Emerging Int’l Treaty Law in the Field of Sustainable Development The principle of integration and interrelationship, in particular in relation to human rights and social, economic and environmental objectives Environmental protection shall constitute an integral part of the development process and shall not be considered in isolation from it. Social, economic and environmental pillars of sustainable development should be mutually supportive. Reflected in the UN Convention on Biological Diversity at Art 6 (integrate conservation and use into policies, plans, etc); in the Cartagena Protocol on Biosafety at Preamble (mutually supportive) and at Arts 2.4 and 2.5 (other int’l instruments); in FAO Seed Treaty at Preamble (synergies) and at Art 5.1 (promote an integrated approach); in GATT at Art XX (exceptions) and in NAFTA at Art 103, 104 and 104.1 (relationships with other accords), Art 1114 (enviro standards & investment) and 2101(exceptions).


Sustainable Development Law: Sustainable Development Law Progress: ‘Sustainable Developments’ Within and Beyond Int’l Law


Progress: ‘Sustainable Developments’ Within and Beyond Int’l Law: Progress: ‘Sustainable Developments’ Within and Beyond Int’l Law SD Law: Law at the intersection of economic, environmental and social regimes, aimed toward development that can last - in the interest of present and future generations. The Principles: Emerging, still in process of identification and elaboration, and worthy of further investigation. The Practices? Diverse legal instruments clearly reflect the principles originally identified in the Brundtland Report, but much further study and implementation action is needed. The Prospects? - for students & international legal scholars, - for practitioners & legal professionals, - for government law and policy makers.


Progress: ‘Sustainable Developments’ Within and Beyond Int’l Law: Progress: ‘Sustainable Developments’ Within and Beyond Int’l Law Providing the Legal Means Recognize rights and responsibilities (National laws) A Universal Declaration (Earth Charter) and Convention on EPSD (IUCN Draft) Strengthen and extend existing international conventions and agreements (CBD, FCCC, CCD)… Avoid and settle environmental disputes (ITLOS, ICJ, WTO)… Other Proposals for Institutional and Legal Change (12) Getting at the Sources National policies and institutions Regional and inter-regional action Global institutions and programmes Dealing with the Effects National environmental protection and natural resource management agencies Strengthening the UNEP (global enviro governance) Assessing Global Risks Making Informed Choices Increasing the Role of the Scientific Community and Civil Society… Increasing Cooperation with Industry (CSR)… Investing in Our Future National Action… International Action… Re-orienting Economic Institutions… Re-orienting Development Assistance… New Sources of Financing…


INTERNATIONAL LAW FOR SUSTAINABLE DEVELOPMENT: The Partners: INTERNATIONAL LAW FOR 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


INTERNATIONAL LAW FOR SUSTAINABLE DEVELOPMENT: : 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 / partnership@cisdl.org