Sustainable Development in International Law: An analysis of key enviro-economic instruments

Dire Tladi

Description

The concept of sustainable development has grown in importance in the last two decades. Its significance is reflected in the number of major international conferences on sustainable development such as the Johannesburg World Summit on Sustainable Development and the Rio Conference on Environment and Development that have taken place in this time; the many international environmental agreements purporting to give effect to sustainable development and soft law instruments endorsing the concept enacted over this period; and the large body of literature relating to sustainable development that has emerged.Despite this currency sustainable sustainable development as a legal concept is open to critique on the basis of its indeterminacy. This book attempts to address this indeterminacy: It offers a conceptualisation of sustainable development that, taking into account the intricacies and nuances of current sustainable development discourse, contributes towards making sustainable development a more useful legal tool. The model of sustainable development thus developed is then applied to several key environmental regimes – climate change, biodiversity and the Global Environment Facility – to illustrate its usefulness.Anyone working in the areas of international environmental law, international development law or general international law – whether as practitioners or academics – will benefit from this book.About the editor:Dire Tladi is Professor of international law at the Department of Public Law and the Institute for International and Comparative Law in Africa at the University of Pretoria. He is also Extraordinary Professor at the Public Law Department of the University of Stellenbosch.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2007
• Nombre de lectures: 0
• EAN13: 9780958509794
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

SUSTAINABLE DEVELOPMENT IN INTERNATIONAL LAW: AN ANALYSIS OF KEY ENVIRO- ECONOMIC INSTRUMENTS

Dire Tladi

2007

Sustainable development in international law: An analysis of key enviro-economic instruments

Published by:

Pretoria University Law Press (PULP)

The Pretoria University Law Press (PULP) is a publisher, based in Africa, launched and managed by the Centre for Human Rights and the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa that have been peer-reviewed. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa.

For more information on PULP, see: www.chr.up.ac.za/pulp

Printed and bound by: ABC Press Cape Town

Cover design: Lizette Besaans, Centre for Human Rights Smoke stacks near KwaDukuza, Kwazulu-Natal Photograph with permission from Stephan Heyns

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.chr.up.ac.za/pulp

ISBN: 978-0-9585097-9-4

© 2007 Copyright subsists in this work. It may be reproduced only with permission of the author.

Table of Contents

PREFACE AND ACKNOWLEDGMENTS

LIST OF ABBREVIATIONS

TABLE OF CASES

TABLE OF INTERNATIONAL INSTRUMENTS

One / Introduction 1. Background 2. Study objectives and methodology 3. Parameters 4. Synopsis

PART A: FRAMEWORK Introductory remarks to Part A

Two / Sustainable Development: History and Purpose 1. Introduction 2. Sustainable Development: A Historical Sketch 2.1 General 2.2 Towards Stockholm 2.3 The Stockholm Conference 2.4 The Road to Rio 2.5 UNCED 2.6 WSSD 3. Purpose of Sustainable Development: Paradigm Shift 4. Conclusion

Three / Conceptualising Sustainable Development

1. 2.

3.

4.

Introduction Early Conceptualisation 2.1 Intergenerational Equity 2.2 Intragenerational Equity 2.3 Integration 2.4 Human Rights and Sustainable Development A More Nuanced Conceptualisation 3.1 Unlocking Sustainable Development: Integration is the Key 3.2 Three Variations of Sustainable Development 3.3 Identifying the Variations of Sustainable Development in Specific Instruments Conclusion

iii

vi

viii

x

xii

1 3 4 8

11 12 12 17 19 22 25 30 34 37

39 40 40 48 58 66 74 74 80 82

90

Four / Sustainable Development in the Context of International Law 1. Introduction93 2. The Status of Sustainable Development under International Law94 3. Sustainable Development in International Law104 3.1 The Place of Sustainable Development in International Law 105 3.2 The Role of Sustainable Development in International Law 107 3.3 Variations of Sustainable Development, International Law 110 and the Paradigm Shift 4. Conclusion112

PART B: ANALYSIS Introductory remarks to Part B

Five / Sustainable Development and the Climate Change  Regime

1. 2.

3.

4.

5.

Introduction The Climate Change Problem 2.1 Background to Climate Change and the Development of the Regime 2.2 Interests and Countervailing Interests: A Note on Negotiating Hurdles in Climate Change Regime-Building Climate Change Regime: An Analysis of Kyoto 3.1 Principles in the UNFCCC: Paving the Way for Kyoto 3.2 Key Provisions of the Kyoto Protocol 3.3 Bonn and Marrakech Agreements Analysis – Determining the Kyoto Protocol Variation of Sustainable Development 4.1 General 4.2 Kyoto’s Emissions Reduction Targets 4.3 Flexible Mechanisms under the Kyoto Protocol 4.4 Intragenerational Equity 4.5 The Precautionary Principle 4.6 The Malignancy of the Climate Change Problem as a Factor Concluding Remarks

Five / Sustainable Development and the Biosafety  Regime

1. 2. 3.

117 118 118

121

126 126 130 137 141

141 141 143 148 153 155 156

Introduction159 Background: Science and Dilemmas161 Biosafety Under the Biodiversity Regime169 3.1 The Biodiversity Convention 169 3.2 Key Provisions of the Protocol 172 3.2.1 The Scope of the Agreement and AIA Procedure 173 3.2.2 Decision-Making: Precaution and Socio-Economic Factors 178 3.2.3 Relationship of Protocol to WTO Agreements 182

iv

4.

5.

3.2.4 Provisions Giving Effect to Intragenerational Equity Analysis – Establishing the Central Value in the Protocol 4.1 General 4.2 Scope of the Protocol 4.3 Decision-Making: Precaution and Socio-Economic Factors 4.4 Relationship of the Protocol to WTO Agreements 4.5 Intragenerational Equity Concluding Remarks

184 186 186 187 192 199 200 203

Seven / The Global Environment Facility 1. Introduction207 2. Background to the GEF: Creation and Institutional Make-Up208 2.1 Background: Establishing the Pilot Phase 208 2.2 Towards Restructured GEF 213 2.3 Restructured GEF: Institutional Structure 214 2.4 Restructured GEF: InstitutionSui Generis216 3. The GEF Operations and Policies218 3.1 Policies and Objectives in the GEF Instrument 218 3.2 Eligibility Criteria for GEF Funding: ‘Incremental Costs’ and 222 ‘Global Environmental Benefit’ 3.2.1 COP and GEF Approach to Incremental Costs 222 3.2.2 COP and GEF Approach to Global Environmental Benefits225 3.2.3 Interplay Between National Priorities and Global 230 Environmental Benefits 4. GEF Variation of Sustainable Development233 5. Conclusion238

FINAL OBSERVATIONS: SUSTAINABLE DEVELOPMENT: NEW LANGUAGE SAME PARADIGM?

1.

2.

3. 4.

Sustainable Development: Implications for International Law 1.1 Three Variations of Sustainable Development 1.2 The Operation of Sustainable Development in International Law Sustainable Development: The Continued Dominance Economic Concerns 2.1 Patterns of Trumping 2.2 Methods of Trumping Is there any Cause for Hope? Conclusion

BIBLIOGRAPHY

INDEX

v

239 240 241

242

242 245 247 248

251

268

Preface and Acknowledgments

This study represents my formal journey into the concept of sustainable development; its meaning and potential contribution to the world. I say ‘formal’ because, although officially this journey began only in 2001, my connection with the concept goes much further back.

In May 1992, as a 17 year-old high school student, before I had even heard the phrase ‘sustainable development’, I was, together with three other youths, part of a delegation representing South Africa at the UNEP Youth Conference on Environment and Development at the United Nations headquarters in New York. The Youth Conference was of course the curtain- raiser to the now famous UN Conference on the Environment and Development (UNCED or Rio Conference). At the UNEP Conference the youth of the world expressed to the world leaders what they expected from UNCED. And so in our own little way, unbeknown to us, we were already contributing to the evolution of sustainable development.

My selection to the team to represent South Africa at the UNEP conference came about because of my involvement in a school project, the Khaditshwene project. This project, originally conceived of as a history project investigating the demise of a Tswana community living in Khaditshwene, North-West of Pretoria, South Africa, quickly turned into a multi-disciplinary project, one aspect of which concerned the fact that the Khaditshwene community lived in harmony with the nature. In a phrase, sustainable development!

Although, perhaps coincidentally, I have walked a long road with sustainable development, the formal journey reflected in this study was not easy. Many individuals made its completion possible and I wish to thank them all. There are a few individuals I wish to single out, however. First, let me say thank you to God, the source of all life, for the strength to continue when times got rough.

Thank you to the National Research Foundation in South Africa, de Stichting Studienfonds voor Zuid-Afrikaanse Studenten in the Netherlands and the UNISA Research Committee for the financial support which made it possible to travel between Rotterdam and Pretoria. To my promoter, Professor Ellen Hey for all the critical comments and rigorous guidance; thank you so very much. I imagine it was not easy supervising someone as stubborn as I am but you will never know how much I have learnt from you. Thank you. I also thank members of the reading committee, Prof Nico Schrijver, Prof Laurens Winkel and Prof von Benda–Beckmann–Droogleever for their comments. I am also eternally grateful to Ms Marlies Gromicho-Kok for all the administrative assistance associated with submitting the thesis. I am also thankful to PULP and everyone involved in getting the manuscript ready for publication under very tight deadlines. In particular, I wish to thank Professors Christof Heyns and Frans Viljoen, Danie Brand and Lizette Besaans. A special thank you to Mona Shabaan and André Noort. Mona and André kept me company during the lonely and often frustrating periods spent in Holland: their companionship softened the harshness of being away from my beloved South Africa. I cherish both of you more than I can ever express. Thanks also to Nicole Lewis, a former student and now a dear friend of mine whose obsession with Holland ensured that I was never alone.

I also want to thank all my former colleagues at the law faculties of the University of Pretoria and the University of South Africa (UNISA), especially members of the Department of Legal History (University of Pretoria) and the Department of Constitutional and International Law (UNISA). Although I no longer work for a university, I still feel very much like a part of the family. At the University of Pretoria I especially want to thank Professor Frans Viljoen for inspiring me to become an academic. A special thanks also to Professor

vi

Philip Thomas, my friend and mentor, even though ‘thank you’ cannot express what I feel. Thank you to both of you for the many conversations and the inspiration; I am a better person because of both of you. Also, thank you to the late Professor MP Vorster who endeared me to the subject of international law. At UNISA, I especially want to thank Professor Neville Botha who, as head of my department, provided an environment conducive to completing my research. For assisting me with editing the manuscript, I would like to thank Professor Gretchen Carpenter: thanks a million for sacrificing your retirement to read the manuscript. A word of thanks also to all the colleagues at the Department of Foreign Affairs who made me feel welcome.

I want to thank my high school history teacher, David van Wyk, who not only introduced me to the Khaditswhene project (and in that way sustainable development) but also encouraged me to ‘think out of the box’. Thank you David for suggesting I ignore the prescribed green history textbook and teaching me to think about history and not just to regurgitate history. Although the suggestion may have been costly in the short term, it did wonders for me in the long term. Also, thanks to the Environmental Ethics Specialist Group of the IUCN, especially Professor Klaus Bosselmann, for his willingness to engage with me on the concept of sustainable development. The core thesis proposed in this study is much improved largely as a result of this engagement. Thank you also to the Ecological Integrity group for providing a stimulating environment within which to think about the intersection of environmental and human health concerns.

Thank you to all my friends for their support. From my family, I want to thank all my aunts, uncles and cousins. I must say a special thank you to my brother, Kwezi, for being more than a brother. For long periods you were my brother, my friend and my father.Ke a leboga ntwana. My wife, Sebo; thank you for taking the time to read the various chapters of this manuscript and for all your support and encouragement. You know I would not have done this without your support. Thank you to my adorable children, Sedi and Fentse, for being the happiest children in the world. To my mother-in-law: without you I would not have had my wonderful wife and beautiful children. Thank you Koko.

I want to thank everyone and anyone who was in any way involved in this study and in my life. But I dedicate this book to the loving memory of my mother, Eva Tladi, who I lost much too soon. Even after all these years I still miss you so very much.

Dire Tladi

Pretoria, May 2007

vii

AAU ACP AIA AU BCLR Bt CBD CDM CER CFC CITES

CO 2 COP EC ECE ECHR EEC EHRR EU FAO GATT GEF GMO GP ICJ IMF ILA ILO ILM IPCC IUCN JI LMO LMO-FFP

MDGs MEA MOP NAFTA NEIO NEPAD NGO OAU OD OECD OMS OP OPS PCF QELRC SPS UN UNCED

- - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

- - -

List of Abbreviations

Assigned Amount Units African Caribbean Pacific Advance Informed Agreement African Union Butterworths Constitutional Law Reports Bacillus thuringiensis Convention on Biological Diversity Clean Development Mechanism Certified Emission Reduction Chlorofluorocarbons Convention on International Trade in Endangered Species of Wild Fauna and Flora Carbon dioxide Conference of the Parties European Community Economic Commission for Europe European Court of Human Rights Reports European Economic Community European Human Rights Reporter European Union Food and Agriculture Organisation General Agreement on Trade and Tariffs Global Environment Facility Genetically Modified Organism Good Practice (World Bank) International Court of Justice International Monetary Fund International Law Association International Labour Organisation International Legal Materials Intergovernmental Panel on Climate Change World Conservation Union Joint Implementation Living Modified Organism Living Modified Organism intended for use as food, feed or processing Millennium Development Goals Multilateral Environment Agreement Meeting of the Parties North American Free Trade Association New International Economic Order New Partnership for African Development Non-Governmental Organisation Organisation for African Unity Operational Directives (World Bank) Organisation for Economic Co-operation and Development Operational Manual Statements (World Bank) Operation Policy (World Bank) Overall Performance Study Prototype Carbon Fund Quantified Emissions Limitation and Reduction Commitment Sanitary and Phytosanitary United Nations United Nations Conference on Environment Development

viii

UNCLOS UNDP UNEP UNESCO

UNFCCC UNTS WCED WHO WSSD WTO

- - - - - - - - - -

United Nations Convention on the Law of the Sea United Nations Development Programme United Nations Environment Programme United Nations Educational, Scientific and Cultural Organisation United Framework Convention on Climate Change United Nations Treaty Series World Commission on Environment and Development World Health Organisation World Summit on Sustainable Development World Trade Organisation

ix

Table of Cases

International Court of Justice

Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 ICJ 131

Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons 1996 ICJ 226

Case Concerning Gabcikovo – Nagyramos Dam (Hungary v Slovakia) 1997 ICJ 3

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) 2000 ICJ 182

Case Concerning the Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States) 1986 ICJ 14

Corfu Channel Case (UK v Albania) 1949 ICJ 4

North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands) 1969 ICJ 3

International Arbitration

Behring Sea Fur Seals (Great Britain v United Kingdom), 1893

Trail Smelter (United States v Canada) 1941

World Trade Organisation and GATT Cases

EC-Measures Affecting the Approval and Marketing of Biotech Products, Panel decision

EC-Measures Concerning Meat and Meat Products (Hormones) AB-1997-4

US-Measures Concerning Import Prohibition of Certain Shrimp and Shrimp Products AB-1998-4

United States – Restrictions on Imports of Tuna Panel Decision (1991)

United States – Restrictions on Imports of Tuna Panel Decision (1994)

United States – Standards for Reformulated and Conventional Gasoline AB-1996-1

European Court of Human Rights

Balmer-Schrafroth and others v Switzerland998

Fredin v Sweden1991

Hatton and Others v The United KingdomECHR 2001

Lopez Ostra v Spain1995

Markt Intern and Beerman v Germany1989

Oneryildiz v Turkey2002

x

104

65

67

36, 98

100

65

98, 99, 100

13

13, 26, 65

183, 188

63, 200

63, 200

29

29

29

70

70

70

70

74

70

Domestic Case Law

Biowatch Trust v The Registrar: Genetic Resources, the Executive Council for Genetically Modified Organisms 2001 Pretoria High Court (South Africa)

Director: Mineral Development, Gauteng Region, and Another v Save the Vaal Environment and Others1999 Supreme Court of Appeal (South Africa)

Minister of Public Works and Others v Kyalami Ridge Environmental Association and Others2001 Constitutional Court (South Africa)

Minors Oposa v Secretary of Department of Environment and Natural Resources1994 Supreme Court (Philippines)

Pharmaceutical Manufactures Association and Others v The President of South Africa and Others1999 Pretoria High Court (South Africa)

S v Makwanyane and Others1995 Constitutional Court (South Africa)

Van Huysteen NO and Others v Minister of Environmental Affairs and Tourism and Others1995 Cape High Court, (South Africa)

xi

71

71

73

41

188

103

71