Tag Archive | "international environmental law"

Sutton Colloquium 2012: Sustainable Development v. Sustainability

Join the Denver Journal of International Law and Policy, the Ved Nanda Center for International and Comparative Law, and the International Legal Studies Program for the 45th Annual Leonard v.B. Sutton Colloquium on Saturday, November 10, 2012.  This year, the Colloquium will consider sustainable development v. sustainability as the globe approaches the limits of growth in the 21st century.  This event will consider the impact of the UN sustainability conference in Rio de Janeiro twenty years ago.

In today’s world we aspire to foster economic growth and to achieve sustainability.  But are these two goals compatible?  In light of the shortcomings of the Rio + 20 Earth Summit, which one media syndicate labeled “a failure of epic proportions,” this year’s 45th Annual Sutton Colloquium addresses the current relationship between sustainable development and sustainability.  We are joined by local, national and international legal and environmental experts who will share their perspectives on how “best” to preserve our earth for future generations.

Topics will include the role and effectiveness of the rule of law and rule of law initiatives; the contrasting proposed approaches to the global environmental crisis, focusing on the advantages and shortcomings of each paradigm; and the future direction of international environmental law as we approach the limits of growth in the 21st century.  The panelists, who are practitioners and scholars from across the United States, are experts in their fields and have much to share on the topic.

The Sutton Colloquium has been approved for 8 CLE credits, which includes pending ethics credits.  It will be held on Saturday, November 10, 2012, at the Sturm College of Law.  To register, please click here.

The Leonard v.B. Sutton Colloquium in International Law was named for a former Chief Justice of the Colorado Supreme Court who was a close friend and longtime supporter of the International Legal Studies Program.

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Critical Analysis: Rio+20: World Leaders Gather to Address Sustainable Development While Resource Privatization Runs Amok

Cristo Redentor overlooks Rio and its Summit (BBC)

This week world leaders, numerous participating governments, non-government organizations, and members of the public sector will convene in Rio de Janeiro, Brazil for the Rio+20 Conference on Sustainable Development. Rio+20 – short for The United Nations Conference on Sustainable Development – marks the 20th anniversary of the 1992 United Nations Conference on Environment and Development (UNCED), in Rio de Janeiro, and the 10th anniversary of the 2002 World Summit on Sustainable Development (WSSD) in Johannesburg. An estimated 50,000 people from 190 countries, including 130 leaders, are expected to attend.

Rio+20 is a joint endeavor with the entire United Nations system and this conference, if successful, will result in a focused political document. The Rio+20 attendees are convening to discuss global economic growth efforts that will not harm the planet and other issues such as jobs, energy, sustainable cities, food security and sustainable agriculture, water, oceans, and disaster readiness.

Rio+20 is important because it examines how to reduce global poverty while preserving the planet’s life-support systems. Observers say that the gap between the ecological footprints of rich and poor nations continues to widen while global consumption of natural resources, carbon emissions and poverty have all continued to increase. The conference’s host, Brazil, has been struggling with the preservation of the Amazon. There, environmental activists clash with wealthy landowners who advocate for maximum exploitation of the precious Amazon.

Brazil is not the only country working to balance a prosperous economy and a fragile environment. As we already know, money and power often trump sensible policy around the world. Under current rules, polluters in many countries can emit greenhouse gases without penalty. What is good for the general welfare of the people is not always good for business. And critics have raised a skeptical eyebrow at the high level of private sector participation at the Rio+20 conference. One of the priority issues for many developing countries are the economics of and access to energy. Seeing the ever-growing need for energy access and the trend in sustainability efforts, many prominent energy companies around the world plan to attend Rio+20. At the conference, companies will have an opportunity to showcase their technological solutions for green energy growth. They will be allowed to attend high-profile meetings, events, participate in substantive dialogue, and make public comments about green energy growth.

Some view the strong private sector presence as the international community using any resources available to solve food, water, and energy deficiencies around the world. Meanwhile, critics argue that Rio+20’s green economy agenda is merely a façade and is truly driven by private sector kingpins wishing to muscle their way into public utilities services by privatizing nature and deregulating industry in order to turn a profit.

President Obama will not be attending. British Prime Minister David Cameron, German Chancellor Angela Merkel, and the entire European Parliament have also declined to attend. Such absences have brought some to question the significance of the conference at all. Skepticism aside, the world’s natural resources could potentially be gravely affected by the result of Rio+20 and remaining conscientious is only to our benefit.

Posted in DJILP Staff, Gaby Corica, TVFA PostsComments (0)

News Post: Controversial Dam Construction in SE Asia

Construction of the Xayaburi hydroelectric dam along the Mekong River in Southeast Asia appears to be moving forward despite a Mekong River Commission (“MRC”) decision to halt the construction pending a “more complete” environmental impact assessment. The decision to continue building access roads and other facilities for the dam in the face of the MRC order could violate the River Basin’s primary treaty, the Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin.

Xayaburi Dam

The MRC is an international commission charged with overseeing the use and development of the Mekong River in conjunction with principles established under the Mekong Agreement. The MRC consists of environment and water resources ministers from each of the Mekong Basin states participating in the Mekong Agreement: Cambodia, Laos, Thailand, and Vietnam. The entity responsible for building the Xayaburi dam is Thailand’s largest construction company and the dam will be built within Laos.

The issue behind the dam’s construction is a conflict between economic development and environmental protection. Laos is one of the poorest and least developed countries in Southeast Asia. Efforts to improve its overall financial stability could be greatly improved by: (1) a new source of national revenue; and (2) energy security. Hydropower dams along the Mekong River could provide both.

However, development of hydropower dams could cause significant harm to the Mekong River Basin. First, the lower Mekong is the largest inland fishery in the world. Dams could prevent the migration of a large variety of the Mekong River’s fish species, resulting in a substantial loss of fish production. In addition to obvious intrinsic harm to the fish themselves, this could have “devastating consequences for food security in the region, particularly for subsistence communities.” Second, dams prevent both water and sediment flow to downstream agricultural regions. Without nutrient rich sediments, agricultural productivity could be reduced, again impacting communities (both within Laos and other riparian states) whose existence depends upon its agricultural yield.

MRC members are required to “notify, consult, and then reach agreement with other member countries before projects on the Mekong’s mainstream are undertaken.” Both Thailand and Laos are MRC members, and both are involved in the ongoing construction of the Xayaburi project. As such, their conduct may well be violating their respective obligations under by the Mekong Agreement.

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Sources: Oil Voice, UPI, Bloomberg, Courthouse News Service, Reuters

News Post: Developments in Ecuador-Chevron Dispute

Sources: Oil Voice, UPI, Bloomberg, Courthouse News Service, Reuters

Sources: Oil Voice, UPI, Bloomberg, Courthouse News Service, Reuters

Recently, there has been a significant development in a long-running environmental dispute between Ecuador and Chevron. This conflict began in the 1970s and 1980s when Texaco (now a subsidiary of Chevron) ran drilling operations in the Amazon. These operations allegedly devastated the rainforest, polluted water supplies, and harmed indigenous people. In addition to environmental destruction, accusations of trickery and bribery surround the deal. Indigenous Andeans brought suit against Chevron, and in February of 2011, an Ecuadorean judge ordered Chevron to pay $8 billion in environmental damages. Chevron, which has no assets in Ecuador, plans to appeal the judgment. The plaintiffs plan on going after Chevron’s assets using the Ecuadorean court’s favorable judgment.

However, in a separate case regarding commercial disputes Chevron recently won a $96 million arbitration award against Ecuador at the Permanent Court of Arbitration in The Hague. The tribunal found that Ecuador violated international law by failing to provide impartial courts and not affording adequate due process. Ecuadorean courts are notoriously politicized and often fail to provide justice. Judges are not above accepting bribes for favorable decisions or allowing lawyers to draft judicial orders for the judge’s signature. For Chevron, the proceedings in Ecuador were significantly delayed and there were concerns about judicial impropriety. With such poor respect for the rule of law in Ecuador, Chevron sought an international remedy.

In the wake of the arbitration award, Ecuador plans to appeal. Ecuador claims that the tribunal does not have jurisdiction to hear the claim; therefore, the judgment is void. To support this, Ecuador points out that it was not party to a bilateral trade agreement with the US that directs disputes to the Permanent Court of Arbitration. Ecuador will challenge this in a Dutch district court and is prepared to appeal to the Dutch High Court.

This case is important because it tests the viability of international commercial arbitration agreements in large contracts. Traditionally, foreign companies are weary to resolve disputes with state actors–the government, state-controlled companies, or important state industries–in the courts of that state. There is a justified fear of favoritism. This is why arbitration is popular: it provides a neutral forum for resolving conflicts that neither party can easily manipulate. The award is enforceable in any state party to the New York Convention. Finding the arbitration agreement valid and enforcing the judgment would provide a strong precedent for similar situations in the future. States cannot take advantage of their sovereignty to abuse and arbitrarily change contracts. This could encourage more, larger investments in developing states.

Posted in Dan St. John, DJILP Staff, TVFA PostsComments (1)

Beijing Cityscape

Chinese Perspectives Part 4: Sustainable Development

Beijing Cityscape

Beijing Cityscape

One of the most frequently levied criticisms made against China is that its development, while economically impressive, is environmentally disastrous.  Judge Xue addressed this criticism directly by providing the demographic and economic context underlying China’s development, briefly outlining China’s history as it relates to sustainable development, and arguing that the Chinese government is indeed actively promoting sustainable development.  According to Judge Xue, the international community should recognize China’s progress with regards to sustainability and appreciate the fact that due to its size and current pace of economic development, such progress is necessarily slow in the making.

Judge Xue stressed that one must think about Chinese sustainable development in relation to its extraordinary demographic and economic circumstances.  China has a population of 1.34 billion people and an economy that has been growing at a rate of ten to twenty percent for the last decade.  It has twenty percent of the world’s population and only seven percent of the world’s arable land.  As such, it makes little sense for the international community to hold a country like China to the same standards to which it holds countries that have been developed for decades and have already acquired the capacity to provide for the needs of its citizens.  Furthermore, it is unrealistic to expect China to turn on a dime and improve its environmental record overnight.  China’s history shows that it takes sustainable development seriously, but that under no circumstances will it sacrifice the economic wellbeing of its citizenry to satisfy the west’s environmental goals.

China’s history of environmental regulation, according to Judge Xue, suggests that it is serious about sustainable development and the protection of the environment.  In 1984, China set up the Environmental Protection Administration – the first organ of the PRC meant to deal with issues of sustainability.  However, during the 1980’s, sustainable development was equated with economic development and the focus of the Administration was to keep land healthy for farming.  The broader effects of environmental degradation were seen as a mere growing pain.  Thus, China pursued labor-intensive industries to attract foreign investment.  Those who wanted cheap labor and lax environmental regulations came to China.

This led to a set of policies that caused terrible pollution, acid rain, water contamination, accidents that damaged fisheries, and various other consequences that were destructive to the lives and livelihoods of millions of Chinese people.  Starting in the mid-1990’s, China revised its environmental laws to provide for more concrete rules and supervisory mechanisms.

Today, The People’s Republic of China now has a fairly comprehensive legislative regime that touches on water pollution, air pollution, solid waste, and radiation.  Judge Xue made it a point to state that China made the change from irreverence toward to respect for the environment not for the international community, but for the Chinese people who had suffered as a result of pollution.

Today, China is a state party to about 50 environmental treaties and abides by them in good faith.  To help it live up to its environmental treaty obligations, the Chinese government came up with the concept of “Green GDP,” which takes economic and environmental factors into consideration and helps the government make decisions with an eye towards their environmental impact.  The use of Green GDP has already led to a significant improvement to China’s desertification problem.  Additionally, China recently published its “Agenda for the 21st Century,” which contains twenty chapters and 78 concrete program areas and places sustainability at the heart of its development strategy.  In 2005, a chemical factory exploded leading to trans-boundary water pollution on China’s border with Russia.  Both states took cooperative measures to save downstream areas from water pollution.  In 2006, China sought to reduce its emissions by twenty percent by the year 2010, and it met that target.  These concrete steps show that China takes sustainable development seriously and is committed to improving its record in the future.

All this has led to an increase in public participation in environmental assessment.  If a building plan is going to cause harm to individuals as a result of its environmental impact, the Planning Department has a duty to hold public hearings, which will lead to a change of plans if the environmental costs are unnecessary or outweigh the economic benefits.

China sees sustainability both as an end in itself and as a means of achieving broader societal goals.  It will continue to seek a balance between economic and ecological development, keeping in mind current environmental standards.  Judge Xue made it clear that China will do so not because sustainable development is a goal that the international community has for China, but because sustainable development is the only way for the Chinese government to provide for its citizens in the long term.  Judge Xue would have international community recognize the progress China has made in the past and have patience with the development it is to make in the future.

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InforMEA Logo

InforMEA

InforMEA Logo

InforMEA Logo

This summer, the United Nations launched a website with important implications for the future of international environmental law.  InforMEA, the United Nations Portal on Multilateral Environmental Agreements brings together information relating to 17 multilateral environmental agreements (MEAs) from 12 Secretariats hosted by three UN organizations and the International Union for Conservation of Nature (IUCN).  It is also open to nongovernmental observers involved in MEA information and data management.  The portal will contain decisions, resolutions, and recommendations from conferences and meetings of the parties (COPs and MOPs), calendars, news and events, and certain national contacts.  It will also harmonize information from across the MEAs, so that information is more easily accessible and usable.  Elsewhere, I have written about the significance of COP and MOP activity.  This portal will bring this activity together in one place, in easily accessible format.

Why is this move so significant?  It has the potential to affect three areas of current concern to international environmental lawyers: sectoral fragmentation, the relationship between international law and domestic law, and accountability.

First, the portal might help us manage the sectoral fragmentation we see in international law, particularly in international environmental law.  Many commentators have worried that connections among treaties that have substantial overlap are weak or completely lacking.  This can lead to, at best, unnecessary duplication and, at worst, one subject matter treaty undermining the goals of another treaty that deals with a different subject matter.  Worries about the effects of climate change mitigation efforts on biodiversity are a good example of this.  This portal offers the potential for those interested to find avenues for coordination and linkages as they see what all the MEAs are working on.

Second, information that is more accessible is also more useful to national authorities.  As international environmental law is increasingly connected to domestic law and implementation, this accessibility will be key.  Sustainability requires recognition of local context and localized activities, as well as some international coordination of information and sharing of experience.  The role of international environmental law as a clearinghouse of information is greatly enhanced by this portal.

Third, the amount of activity undertaken by the COPs and MOPs of MEAS, as well as various technical bodies, has created concern about accountability.  NYU’s Global Administrative Law Project is an example of one response to this concern.  This portal can enhance informal accountability because it will now be much easier to find out what COPs, MOPs, and various technical bodies are doing.  The participation of nongovernmental observers is important for this, but the portal’s openness to the world at large is also key here.

Interestingly, a search on the portal under the subject category “Issues common to MEA’s” yielded no results under treaties or decisions!  But maybe this portal will start to change that.  How much this portal can do will depend ultimately both on how much information it has and how committed various stakeholders are to using it.  But it offers real promise.  International environmental lawyers, watch this space: http://informea.org/

 

Posted in Annecoos Wiersema, TVFA PostsComments (0)


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