Environmental Policy And

Volume 46 Number 2 April 2016 ISSN 0378-777x ENVIRONMENTAL ENVIRONMENTAL POLICY AND LAW Abstracted/Indexed: Academic Source Complete; Business Source Complete (EBSCO); POLICY AND LAW CAB Abstracts; CSA Illumina; Database WasteInfo; EBSCO Databases; Ecolex; EMBIO; Environment Abstracts; Environment Complete; GEOBASE; Google Scholar; Linkages THE JOURNAL FOR DECISION-MAKERS Update; MasterFILE; Microsoft Academic Search; PAIS International; Scopus; SD-Cite; Vol. 46, No. 2, 2016 Ulrich’s Periodicals Directory; Water Resources Abstracts; Wildlife Review Abstracts CONTENTS Editorial 101 UNITED NATIONS ACTIVITIES REGIONAL AFFAIRS UNEP/UNEA/OECPR-2 UNECE: Aarhus Convention – Setting the Table for UNEA-2 102 – Compliance Committee 160 (Cleo Verkuijl) – Update on 50th and 51st Meetings – UNFCCC (Elsa Tsioumani) – The Paris Agreement: An Insider’s Perspective AEWA/MoP-6 – The Role of Small Island Developing States – 105 – Protecting Migrating Water Birds 162 (Ian Fry) – Climate Change - NATIONAL AFFAIRS Are We Really Confronting this Challenge? 109 (Palitha Kohona) Canada – Canada in the Post-2015 World 165 CITES/SC-66 (Paul Fauteux) – Tackling Challenges in Wildlife Trade 112 (Efstathia Laina) India – Solid Waste Management Legislation 168 ILC – A Review – – Environment in the Report to UN/GA 117 (Prashant Bhave and Karan Sadhwani) (Efstathia Laina) Nigeria ICJ – Sanitation and Waste Management: – Current and Pending Environment-related Cases 120 – Part 1: Overview – 175 WHO/FAO/UNEP (Muhammed Tawfiq Ladan) – Exposure to Lead through AmmunitionAUTHOR 127 QatarCOPY AUTHOR COPY – Need to Revise Strategies – – Animal Welfare: Law and Philosophy 185 (Vernon G. Thomas and Raimon Guitart) (Francis N. Botchway and Dabia Masmalani) OTHER INTERNATIONAL DEVELOPMENTS REFERENCES TO OTHER TOPICS 191 Water Scarcity Comes of Age 132 (Amado S. Tolentino, Jr) Environmental Disputes in Investor-State Arbitration 133 – A Need for Change – (Aditya Vora Viral) Musk Deer Trade and Worldwide Depletion 137 (Mudasir-Ali, Bhat G.A.) Social Rights in International Law 149 – Premises for a (New) Fundamental Approach – (Rodrigo Garcia Schwarz)

Cover photo: Mostafa Tolba (1922 - 2016). Serving as Executive Director of the United Nations Environment Programme (UNEP) from 1975 – 1992, Mostafa Tolba was instrumental in forming the institution to be grounded in the principles of international environmental law. Race for Next UN/SG and UNEP/ED Submission of an article for publication implies the mitted to photocopy isolated articles for not-for-profit transfer of the copyright from the author(s) to the classroom or library reserve use without fee. This publisher and entails the author’s irrevocable and consent does not extend to other kinds of copying, exclusive authorization of the publisher to collect any such as for general distribution, resale, advertising, sums or considerations for copying or reproduction and promotion purposes, or for creating new col- payable by third parties (as mentioned in article 17 lective works. Special written permission must be ENVIRONMENTAL paragraph 2 of the Dutch Copyright Act of 1912 and obtained from the publisher for such copying. the Royal Decree of 20 June 1974 (S. 351) pursuant to article 16b of the Dutch Copyright Act of 1912) and Special regulations for authors in the USA – Upon or to act in or out of Court in connection therewith. acceptance of an article by the journal, the author(s) will receive a copyright transfer form. This transfer of POLICY AND LAW Special regulations for readers in the USA – This copyright to the publisher is needed prior to publica- journal has been registered with the Copyright tion and will ensure the widest possible dissemination Clearance Center, Inc. Consent is given for copying of information under the US Copyright Law. This international journal has been created to en- Prof. Nicholas Robinson (USA), Pace University of articles for personal or internal use of specific courage and develop the exchange of information School of Law; former Chairman, IUCN/CEL; clients. This consent is given on the condition that © 2015, IOS Press and experience on all legal, administrative and policy ICEL Governor the copier pays through the Center the per-Copy fee All rights reserved. No part of this publication may matters relevant to the natural environment and sus- Prof. Dinah Shelton (USA), The George Washington stated in the code on the first page of each article be reproduced, stored in a retrieval system or trans- tainable development. It is concerned in the widest University Law School for copying beyond that permitted by Sections 107 mitted in any form or by any means, electronic, sense with legal and policy aspects of air, water, soil Prof. Rüdiger Wolfrum (Germany), Director, or 108 of the US Copyright Law. 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Young (TRY) Beirut: Samar Malek Assistant Editors: Nadia Edwards (NAE) and Paris: Mireille Jardin Aaron Laur (ATL) Pacific: Ian Fry c/o International Council of Environmental Law Bangkok: Patricia Moore Godesberger Allee 108–112 Santiago: Eduardo Astorga Jorquera 53175 Bonn, Germany Rome: Mohamed Ali Mekouar Tel.: +49 (0) 228 2692 240 Subscriptions Fax: +49 (0) 228 2692 251/252/253 Environmental Policy and Law (ISSN 0378-777X) E-mail: [email protected] is published in one volume of six issues a year. The subscription prices for 2016 (Volume 46) are Advisory Board AUTHOREUR COPY 545 for online-only subscription, EUR 605 for AUTHOR COPY Amb. Bagher Asadi (Iran), former Chairman of G-77 print-only subscription, and EUR 714 (US$972) for a (2001), Senior Expert, International Department, combined print and online subscription). Our p.p.h. 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Kaniaru (Kenya), former Director and Publisher Senior Legal Adviser, UNEP; ICEL Representative IOS Press to the United Nations, Nairobi Nieuwe Hemweg 6B Marlene Jahnke, former Editor of EPL (MJ) 1013 BG Amsterdam, The Netherlands Prof. Stephen McCaffrey (USA), McGeorge School Tel.: +31 20 688 33 55 of Law, University of the Pacific; former Member Fax: +31 20 620 34 19 of the International Law Commission Subscription Department: [email protected] Prof. Mohamed Ali Mekouar (Morocco), Professor of Law Advertising Department: [email protected] Prof. Charles Odidi Okidi (Kenya), Faculty of Law, Desk editorial Department: [email protected] University of Nairobi www.iospress.nl or www.iospress.com While completing this issue, we were informed that three pioneers in the field of national and international environmental policy have passed away: James “Jim” MacNeill left us on 5 March. He developed Canada’s basic environmental positions in the early 1970s, served as Director of Environment for the Organisation for Economic Co-operation and Development, and was Secretary General of the World Commission on Environment and Development (the “Brundtland Commission”). As chief architect and lead author of the world-acclaimed report Our Common Future, Jim was a firm believer that the principles of environmental law and policy should be at the heart of its ground-breaking concepts, ideas and recommendations. We lost Mostafa Tolba, the second Executive Director of the United Nations Environment Programme (UNEP), on 28 March. Mostafa led the Egyptian delegation to the Conference on the Human Environment in Stockholm in 1972. For nearly 20 years at UNEP, he took a practical approach toward emphasising science-based decision making, consensus in multilateral environmental agreements, and strong financial support for proper implementation. He was architect of the Montreal Protocol to the Vienna Convention for the Protection of the Ozone Layer, and the Intergov- ernmental Panel on Climate Change. The Convention on Biological Diversity would not exist today if he had not recognised the importance of entire ecosystems and promoted the formative draft texts prepared by the International Union for Conservation of Nature and Natural Resources. Hans-Dietrich Genscher, former German Federal Minister, departed on 1 April. As Minister for the Interior, he was Germany’s first environment minister and architect of the first “Environment Programme of the Federal Govern- ment” in 1971. Well-recognised for his engagement as Foreign Minister to achieve the reunification of Germany, he was also a strong advocate that environmental conservation is a State responsibility. We will never forget our close contact with each of them, often accompanied by wise advice and successful initiatives. The next issue will include profiles of these remarkable people and document their many valuable contributions to the protection of the environment. *** The United Nations is currently contemplating necessary leadership changes: A new Secretary-General (SG) has to be appointed to succeed Ban Ki-moon as of 1 January 2017. Seven candidates have been nominated thus far, of which six are from Eastern European States. To date, there has not been a SG from that region. In addition, it is widely expected that the next leader of the UN will be female. As explained in EPL 46(1), UNGA President Mogens Lykketoft seeks to increase the transparency of the process by inviting all nominated candidates to informal dialogues withAUTHOR Member States. The final COPY selection of the candidate to be proposed to the UNGA, however, remains in the hands of the five permanent members of the Security Council. After leading UNEP through two regular terms, and an additional two years, Achim Steiner’s mandate as Executive Director (ED) ends in June 2016. UNEA-2 in May in Nairobi will be the last governing body session that he will attend in that capacity. Eight candidates are known to have applied to succeed him. EPL will follow this process and report on developments. We compliment SG Ban and ED Steiner on their achievements and wish them well in their future endeavours. The UNGA’s work to appoint successors to these offices is very important. Member States must carefully consider not only each candidate’s professional qualifications, but also their experience and potential to embrace and work across the system. We trust that UN Member States, aware of the growing ecological crisis and interrelationship with many pressing social and economic issues, understand the gravity of the decision before them. The Sustainable Develop- ment Goals (SDGs) and Paris Climate Agreement are but some of the most recent rallying points for States to further demonstrate that they can overcome political divisions sometimes separating them and make wise decisions for the sake of the future that give proper weight to preserving the UN’s leadership role in the conservation and sustainable use of the environment. 4 April 2016 102 Environmental Policy and Law, 46/2 (2016)

UNITED NATIONS ACTIVITIES

UNEP/UNEA/OECPR-2

Setting the Table for UNEA-2 by Cleo Verkuijl*

The open-ended meeting of the Committee of Draft Resolutions Permanent Representatives (OECPR) to the United Nations Throughout the week, Member States at OECPR-2 met Environment Programme (UNEP) convened for the second in five different clusters to discuss draft UNEA resolutions time since its 2013 inception from 15–19 February 2016, related to: i) environmental governance and education; at UNEP Headquarters in Nairobi, Kenya. Attracting ii) chemicals, waste, and sustainable consumption and some 400 participants, the meeting was tasked primarily production; iii) oceans and water; iv) natural resources, with considering an initial set of 24 draft resolutions and environment and conflicts; and v) biodiversity. In proposed as key outputs of this year’s UN Environment addition, as discussed under “Other Matters”, below, Assembly to UNEP (UNEA-2). UNEA-2 is scheduled to they also addressed administrative and organisational take place in May 2016 under the theme “Delivering on issues. Although in-depth consideration of all 24 proposed the Environmental Dimension of the 2030 Agenda for resolutions proved impossible in the limited time available, Sustainable Development” (2030 Agenda). delegates carried out a first reading of the vast majority Functioning as the world’s “de facto Parliament for of resolutions, with much follow-up work for the CPR the Environment” by convening the world’s environment anticipated in the lead-up to UNEA-2. This report discusses ministers on a biennial basis,1 UNEA succeeds UNEP’s a selection of some of the most salient issues raised. Governing Council/Global Ministerial Environment Forum (GC/GMEF), which met annually between 2002 Implementing the Environmental and 2012 with 58 UN Member States to review important Dimension of the 2030 Agenda and emerging environmental policy issues. In line with As one of the first major global environmental efforts to “strengthen and upgrade” UNEP as agreed at conferences since the adoption of the 2030 Agenda, UNEA-2 Rio+20,2 the GC/GMEF was bolstered with universal represents an important opportunity for environment membership and subsequently renamed “UNEA” in ministers to sustain and effectively direct the momentum for 2013. Traditionally, the work of UNEP’s governing body sustainable development galvanised in 2015. The principal has been supported by the Nairobi-based Committee of advocate for the global environment in the UN system, Permanent Representatives (CPR) to UNEP, which holds UNEP will make a crucial contribution to implementation four meetings a year. In 2013, MemberAUTHOR States additionally of the COPY 2030 Agenda’s environmental dimension.4 There mandated the convening of a biennial OECPR to enable are some fears, however, that the Nairobi-based institution capital-based delegates and stakeholders to contribute to risks being sidelined in what is seen as a New-York-centred preparations for governing body meetings. So it was that process.5 Supporters are therefore looking to UNEA-2 to in March 2014, the first meeting of UNEP’s OECPR was send a strong signal to the next meeting of the High-Level convened in anticipation of the historic first UNEA three Political Forum on Sustainable Development (HLPF) in months later. July about its readiness to take on a major role in this regard. While not evading all of the procedural and A resolution proposed by the European Union (EU) on organisational difficulties that had hampered its first this topic attracted a great deal of interest, with delegates session (for example, carving out the hierarchy between burning the midnight oil on the meeting’s penultimate the CPR and OECPR remains a key challenge), OECPR-2 evening to complete a first reading. Delegates agreed, was by all accounts a more substance-rich gathering than its pending a possible decision on the revision of the UNEA precursor, and attracted greater engagement from Member cycle, to request UNEP’s Executive Director to prepare States.3 It can be welcomed as a milestone in the maturing a report on UNEP’s contribution to the implementation of the UNEA process. of the 2030 Agenda and on several paragraphs related This brief note highlights a few key issues that the to multi-stakeholder partnerships and the science-policy meeting’s packed agenda brought to the fore which can be interface. They hoped to forward that report to the expected to resurface in the run-up to and during UNEA-2, HLPF for consideration. Unfortunately, by the end of the and will help determine its success. session, other paragraphs were strewn with brackets and qualifications concerning UNEP’s appropriate role in the * LL.M.; writer, IISD Earth Negotiations Bulletin; and frequent contributor 2030-Agenda landscape. Text regarding the relationship to EPL. of UNEP, the HLPF and the potential contributions of

0378-777X/15/$27.50 © 2016 IOS Press Environmental Policy and Law, 46/2 (2016) 103 multilateral environmental agreements to the 2030 Agenda, remain on many issues of this proposal, including the proved particularly controversial, suggesting tensions appropriateness of referencing the polluter-pays principle between those countries who would like to see UNEP in the context of marine litter; and of recognising the need take on a proactive role in the post-2015 world and others for revision of international product content labelling who prefer a more modest mandate. Delegates will need standards for microbeads and different types of polymers. to make full use of the available time before UNEA-2 to Delegations will thus need to engage constructively to resolve their differences on these fundamental questions.6 resolve their differences in time for UNEA-2. There are already positive signs, however, that the “Oceans UNEA”, Environmental Protection in as some have dubbed it,10 will boost momentum for Conflict-affected Areas international action on oceans ahead of the UN Conference Set against an international backdrop of severe to Support the Implementation of SDG 14 in June 2017. conflict and the world’s largest humanitarian crisis since World War II, OECPR-2 may well be remembered for Implementing the Paris Agreement on its emphasis on “environment and conflict”, with three Climate Change resolutions on this topic put forward by Member States. Another EU-proposed resolution, this one on promoting Not all were considered, however. A proposed resolution the effective implementation of the Paris Agreement on offered by Morocco and the Arab States, calling for an climate change, attracted much interest. But, in light of the updated assessment of the environmental conditions in timing (OECPR-2 followed close on the heels of the major the Gaza Strip following the 2012 and 2014 conflicts, was Paris climate summit), several delegates initially opposed found to be politically sensitive. As a result, the reading a UNEA resolution on this topic, arguing inter alia that it of this proposal was deferred. Delegates did carry out would be premature, given that the Paris Agreement has two readings of a joint proposal from the Ukraine and the not yet been ratified. It was also suggested that “cherry- Democratic Republic of the Congo (DRC), addressing picking” from the Agreement would disturb the delicate the protection of the environment in conflict-affected balance of interests achieved in Paris. Other delegations, areas. This proposal was considered together with the including the French delegation representing its Presidency relevant elements of a third text, sponsored by Jordan, on of the UN climate change process, underscored the role of “Impact of the Syria Crises on the Natural Environment UNEP as a key implementing partner of the Agreement, in Neighbouring Hosting Countries”. With regard to the and highlighted elements of the Paris outcome that are latter, it was combined with the Ukraine/DRC proposal already implementable. Though delegates did eventually after specific references to the Syrian civil war were begin a reading of the resolution’s operative section, they omitted. By the end of the session, delegates had agreed were unable to agree on any of the paragraphs discussed, to a considerable number of paragraphs in the merged text, and one country bracketed the entire resolution. with several affected delegations supporting references to Nairobi-based delegations are expected to address the environmental impact of human displacement resulting the remainder of the climate change resolution in time from armed conflict. for UNEA-2. Given sensitivities on this topic, however, At a time when the international community’s attention, it remains to be seen how substantive a resolution on as well as the resources of UNEP donors, are increasingly this topic can be adopted by the Assembly, especially being redirected towards the global refugee crisis,7 it as the UN will hold a meeting on the climate process in seems apt for environment ministers to drawAUTHOR attention to May 2016COPY – vying for the attention of national climate the environment-conflict nexus. Observers of the process policy experts that might otherwise be contributing to the have nevertheless cautioned against the tendency of some Assembly’s work. Member States to prioritise post-conflict environmental rehabilitation at the expense of a more holistic approach that Medium-term Strategy, Programme of would also seek to promote the prevention and mitigation Work and Budget of environmental harm before and during conflicts.8 Ministers at UNEA-2 will be required to sign off on a resolution on UNEP’s 2018–2021 medium-term Oceans strategy and 2018–2019 programme of work and budget. A third prominent issue addressed in the meeting While OECPR-2 agreed to the majority of the procedural was that of the world’s oceans. OECPR considered three paragraphs of this resolution, the delegates bracketed separate texts on this topic, as compared to just one that paragraphs approving appropriations for the Environment was considered at UNEA-1. Firstly, delegates came close Fund to the amount of US$ 271 million; urging member to agreement on a resolution on sustainable coral reef States to increase voluntary funding to UNEP; and management, proposed by Indonesia. requesting the continued adapting of the voluntary As to a second proposal, however – a joint EU-US indicative scale of contributions. The titles of UNEP’s proposal which would reinforce UNEP’s work on oceans sub-programmes also remain bracketed. and seas – many paragraphs (including UNEP’s role in achieving Goal 14 of the 2030 Agenda) remain unagreed. Other Matters Thirdly, the meeting addressed a proposed resolution In addition to considering a large number of resolutions, on marine litter and microplastics, which follows up on OECPR-2 gave participants the opportunity to discuss a UNEA-1 resolution on the same topic.9 Divergences – formally, informally and in the corridors – a range of

0378-777X/15/$27.50 © 2016 IOS Press 104 Environmental Policy and Law, 46/2 (2016) other issues related to the agenda of UNEA-2 and to the ways to realise such a transition, and their political and future functioning of UNEP. Some of the highlights are budgetary implications. enumerated below. One potentially contentious issue in this connection will be the terms of office of the UNEA Bureau – whose UNEA-2 High-level Segment members are ordinarily elected at the start of each UNEA As at UNEA-1, a series of high-level debates will take session for two years and whose Presidency is subject to place at UNEA-2, in the form of a ministerial plenary regional rotation. If UNEA-3 is brought forward by a year, on “Delivering on the Environmental Dimension of the the next Bureau’s term will be cut in half. Regional groups Agenda 2030 for Sustainable Development”, as well as a have expressed a variety of preferences in this regard. policy review session on “Healthy Environment, Healthy People”. There will also be a lunch-time multi-stakeholder Stakeholder Engagement Policy dialogue. Deliberations at OECPR-2 considered the form As a key feature of UNEP’s strengthening and upgrading, that the outcome document of these ministerial discussions the Rio+20 outcome document invites UNEP to “ensure should take, with some countries supporting a negotiated the active participation of all relevant stakeholders … and ministerial statement and others preferring a Chair’s explor[e] new mechanisms to promote transparency and summary, which would consume less of the ministers’ the effective engagement of civil society”.11 Accordingly, meeting time. Proponents of a Chair’s summary cite a both OECPR-1 and UNEA-1 considered the development desire to avoid repetition of the late-night and last-minute of a new UNEP Stakeholder Engagement Policy (SEP), but disagreements that marked negotiations on the UNEA-1 no resolution had been adopted at that time. Ministerial Outcome Document, while supporters of a At OECPR-2, the initial meeting agenda foresaw an ministerial outcome stress the need for a strong, political open debate on this topic. Ultimately, however, delegates signal from UNEA-2 that would appeal to a wider audience. did not engage in formal deliberations. Instead, UNEA-1 Delegates have agreed that the UNEA Bureau will draft a President Oyun Sanjaasuren (Mongolia) consulted with concise document before UNEA-2, with the intent that it Member States informally, developing a series of textual can be used as a basis for further refinement into whatever proposals that will be forwarded to UNEA-2. Her proposals type of outcome document is agreed on. address the following outstanding elements of the draft SEP as it stood after UNEA-1: definition of a stakeholder; Review of the UNEA Cycle accreditation process and criteria; access to pre-session There is growing acceptance amongst Member States of and in-session documents; and meetings of Major Groups the need to alter UNEA’s biennial cycle – so that it meets and Stakeholders with the UNEA Bureau. Highlighting in odd-numbered years – in order to better align the UNEA finalisation of the SEP as a priority, a number of delegates sessions and UNEP’s programme of work and budgetary expressed optimism in their closing statements that the cycles with the UN General Assembly’s approval and matter is now close to being resolved. A key bone of review processes. It was suggested that this conversion contention remains, however, as several countries have should be undertaken at UNEA-2, and that UNEA-3 should indicated a desire that the SEP include a “no objection” take place in 2017. OECPR-2 delegates agreed to continue proviso, which would allow Member States to review the deliberations on this topic, in anticipation of an information list of civil society participants ahead of UNEP meetings, note from the UNEP Secretariat to UNEA-2AUTHOR on concrete and refuseCOPY attendance to any they choose.

Closing plenary at OECPR-2 Photo by IISD/Kiara Worth (http://www.iisd.ca/unep/oecpr2016/images/19feb/3K1A8759-tn.jpg)

New Executive Director the environment-conflict nexus. It needs to create a place After ten years at the helm, UNEP Executive Director for and provide meaningful engagement while avoiding Achim Steiner’s final term is set to come to an end in June needless politicisation. For many, UNEP’s continued 2016. Lauded for his vision and charismatic leadership, legitimacy and credibility also rest on the finalisation of a the German/Brazilian will be taking up a position as the strong SEP. Internally, too, UNEP inevitably continues to new director of the Oxford Martin School – a leading “learn by doing” as it gears up for its second UNEA. Time research centre that addresses pressing global challenges.12 will tell what changes the appointment of a new Executive Steiner’s imminent departure fuelled much speculation Director will bring. about his potential successor in the corridors of OECPR-2. While progress would be impossible without change, the Prominent environmental figures from Algeria, Costa Rica, fact that so many new internal and external developments Germany, Greece, Mauritania, Morocco and Norway have are facing UNEP at the same time are also a sign that all been tipped as being under consideration. Perceiving challenging times lie ahead. By many measures, OECPR-2 ecological awareness to have reached a high-point as was a successful conference; although, as a preparatory compared with recent decades, expectations are high meeting, the stakes were relatively low. It is time now to for the chosen candidate to maintain momentum for a focus on UNEA-2 as a possible litmus test for UNEP’s strengthened UNEP and the environmental dimension of ability to effectively navigate the post-2015 world. sustainable development. Some have also suggested that the major political achievements of 2012 (Rio+20) and Notes 2015 (the 2030 Agenda) may indicate that the time is ripe 1 United Nations Environment Programme. 2016. “Governments Set Stage for Action on Environmental Aspects of Humanitarian Crises and Risks to Human for the next Executive Director to shift the organisation’s Health”. Available online at http://www.unep.org/newscentre/Default.aspx?Docu focus away from political positioning and enable it to mentID=27058&ArticleID=36067&l=en. produce noticeable results in terms of on-the-ground 2 United Nations General Assembly. 2012. “The Future We Want”. A/RES/66/288, para. 88. implementation. 3 De Ferranti, R., Kantai, T., Mwangi, W., Paul, D. and Verkuijl, C. 2016. “Summary of the Second UNEP Open-ended Committee of Permanent Going Forward: “Nothing is Constant but Representatives”, at 15. Earth Negotiations Bulletin 16(128). Online at http://www. iisd.ca/vol16/enb16128e.html. Change” 4 See also UNEP. 2016. “Delivering on the Environmental Dimension of the In the more than three years since Rio+20, the decision 2030 Agenda for Sustainable Development – a concept note”. Information note to to strengthen and upgrade UNEP has produced internally UNEA-1. UNEP/EA.1/INF/18. tumultuous results for the organisation. Those years have 5 Supra, note 3, at 4. 6 See supra, note 4, for an overview of all resolutions discussed. seen, however, the first meeting of its new universal 7 Halle, M. 2016. “Africa: Crossroads for UN Environmental Body That Helped governing body, followed closely by OECPR-1 and Put Climate Change on Global Agenda”. All Africa. Online at http://allafrica.com/ UNEA-1. stories/201602220002.html. 8 Weir, D. 2016. “Blog: Conflicting views surface on UNEP’s work on armed The near future heralds more change still. The conflicts ahead of UNEA-2”. Online athttp://www.toxicremnantsofwar.info/blog- world’s new sustainable development agenda provides conflicting-views-surface-on-uneps-work-on-armed-conflicts-ahead-of-unea-2/. an opportunity for UNEP to position itself strongly and 9 UNEA Resolution 1/6. “Marine plastic debris and microplastics”. 10 UNEP Press Release. 2016. “Oceans Take the Spotlight as Delegates Prepare thus to ensure a central role in the implementation of the for UN Environment Assembly”. Online at http://web.unep.org/unea/oceans-take- Agenda’s environmental dimension – in other words, to spotlight-delegates-prepare-un-environment-assembly. “find its voice in an orchestra of institutions” vying for 11 Supra, note 2, at para. 88(h). 13 AUTHOR12 Oxford COPY Martin School Press Release. 2016. “New director for the Oxford influence in its delivery. The outcomes of UNEA-2 and Martin School”. Online at http://www.oxfordmartin.ox.ac.uk/news/20160224-new- of the fourth meeting of the HLPF will play determinative director. roles in this regard. At the same time, UNEP is expected 13 Remarks by UNEP Executive Director Achim Steiner. Wednesday 17 February to continue to respond to complex global issues such as 2016. OECPR-2 plenary discussion on “Delivering on 2030 Agenda”.

UNFCCC The Paris Agreement: An Insider’s Perspective – The Role of Small Island Developing States – by Ian Fry*

The Paris Agreement was generally welcomed by Island Development Forum in Fiji, the Prime Minister of small island developing States (SIDS) as a good outcome Tuvalu said he was compelled to admit that it was a good albeit not a great one. At a recent meeting of the Pacific outcome, although he also suggested that SIDS had not got everything they wanted. He specifically mentioned * Ambassador for Climate Change and Environment, Tuvalu; Pacific Repre- the aspirational target of below 1.5˚C relative to pre- sentative to the UN for the International Council on Environmental Law. industrial levels as a disappointment. Highly vulnerable

Outside the Paris Conference Photo by IISD/Kiara Worth (www.iisd.ca/climate/cop21/enb/7dec.html) coral-atoll nations like Tuvalu would clearly have preferred CoP-21, the US was invited to attend a meeting of the a firmer emissions-reductions target – below 1.5˚C. Their group and joined forces with them. This tended to add concern was based on the Fifth Assessment Report of theatrical flair and political muscle to the group. At one the Intergovernmental Panel on Climate Change, which of the plenary sessions of the CoP, the group walked in suggested that low-lying countries would be severely together under rousing applause and cheers from various affected by the impacts of climate change in temperature well-primed observers. It appeared more like a Presidential scenarios above 1.5˚C. rally than a CoP. Despite this high profile, some questioned Throughout the preparatory negotiations under the Ad whether the inclusion of the US was consistent with the Hoc Working Group on the Durban Platform for Enhanced theme of high ambition. The group was considerably in Action (ADP) in Germany and informal consultations in the spotlight, leading others to consider joining. At one Peru and France, it became evident that the Paris Agreement stage, the Australian Foreign Affairs Minister expressed would be constrained by the political limitations of the an interest in becoming a member. By this point, it became executive powers of the US President and his ability to evident to some that the group had begun to lose its focus. sign a legally binding treaty. Needless to say, many other This concern precipitated Tuvalu’s withdrawal from the countries were more than happy to negotiate under these group in the second week of the CoP. The High Ambition limitations. It was evident that a number of countries from Group primarily focused on the objective of the Agreement the so-called “Umbrella Group”1 were happy to let the US (Article 2) and the review mechanisms (Articles 12 and 13). set the negotiating constraints. A group of developing countries known as the Like- Setting the Temperature Increase Target Minded Developing Countries (LMDC) also took a The debate over the objective and the reference to a significant role in setting the constraints – driving an temperature stabilisation level proved to be intense. Pacific agenda that was not conducive to a substantial outcome. Island countries had united as the Pacific Small Island The interesting mix of countries in theAUTHOR LMDC included Developing COPY States group (PSIDS) at the CoP, as a means of China, India, Malaysia, Saudi Arabia, Nicaragua, Tanzania ensuring that the reference to below 1.5˚C relative to pre- and Bolivia. Their position appeared to rest on the “no harm industrial levels was a key outcome in the Paris Agreement. principle” – ensuring that outcomes under the climate change The debate over setting a target below 1.5˚C had played regime did not affect their “right” to development. Much out earlier in the year in meetings of the Pacific Island could be said about this concept, especially considering that Development Forum in Fiji and the Pacific Island Forum there are populations in many of these countries that are very in Papua New Guinea. There was strong resistance from vulnerable to the impacts of climate change. Europe and others to accepting a below-1.5˚C target; in fact, In these processes, the SIDS tried to use a variety of they appeared to be locking in to a 2˚C ambition scenario. groupings, processes and tactics to elevate their interests. Just prior to the CoP, President Hollande of France hosted During 2015, the Republic of the Marshall Islands began a meeting of Pacific Island Forum countries at the Élysée convening meetings of ministers in the margins of the Palace, at which he emphasised the need to conclude an preparatory negotiations. The ministers were handpicked agreement with a 2˚C target. “like-minded” countries who were keen on setting a level of The call to set the target below 1.5˚C was not a uniform “high ambition” within the agreement. It included countries position of all SIDS, as one prominent member of the from Latin America, the Pacific, Europe (including the Alliance of Small Island Developing States (AOSIS), European Commission) and Africa. The Asian region was Singapore, did not support it. Singapore’s reticence to notably not represented. This group began as an informal concede this point to the overwhelming majority of exchange of views on how to drive a high-ambition the group created difficulties for AOSIS in reaching a agenda. Indeed, during the Paris Conference of Parties, it consensus on this and a number of other issues. These became known as the “High Ambition Group”. It began variances in positions clearly reflected differences in to hold press conferences under this banner. Just prior to economic circumstances and possible perceptions of the

0378-777X/15/$27.50 © 2016 IOS Press Environmental Policy and Law, 46/2 (2016) 107 significance of climate change and its implications. This disappeared from the text and was replaced by somewhat lack of consensus led to the formation of various other ambiguous text suggesting that Parties “shall pursue SIDS sub-groups, including the PSIDS, the CARICOM domestic mitigation measures, with the aim of achieving Community,2 the Coalition of Coral Atoll Nations, and the objectives of such contributions” (Article 4.2). Without alliance building with other groups including the Least an obligation to actually undertake nationally determined Developed Countries and the High Ambition Group. contributions, it could be argued that the High Ambition In the end, a compromise was reached over the Group had lost the cornerstone of their ambition. Perhaps temperature limit, with the Agreement referring to “holding the fanfare at the final plenary was misplaced. the increase in the global average temperature to well below 2°C above pre-industrial levels and to pursue efforts to Financial Support limit the temperature increase to 1.5°C above pre-industrial Another key issue for SIDS was a regular review levels….” (Article 2.1(a)). process for mitigation effort and financial support. It became evident as Parties began submitting their Intended Legal Form of the Agreement and Nationally Determined Contributions (INDCs) during 2015 Commitments/Contributions that the aggregate effect of these contributions would not The legal form of the Agreement was another key lead to a below 1.5˚C or even a 2˚C temperature stabilisation issue for SIDS. Most SIDS were keen to have a legally level. Under this scenario, many SIDS pushed hard for a binding treaty, preferring it to be called a protocol. Again, review mechanism of no more than five-year intervals to this was an issue that created difficulties for the US. It ensure that ambition could be enhanced on a regular basis. was often stated by the US delegation that any suggestion The review process discussion drew clear tensions over that the agreement would be a protocol would not sit well what would be reviewed. Would it be a mitigation review with Congress as it had overtones of being another Kyoto only or would it also review financial support? Protocol, which the US had previously rejected. Throughout the negotiations, there appeared to be an unspoken rule that Adaptation the legal form of the agreement would not be concluded SIDS, naturally enough, were very active in the until the contents of the agreement were finalised. India, negotiations on the adaptation text within the Paris with the support of the LMDC, was a strong advocate Agreement. Finding appropriate language on adaptation of ensuring that the legal form of the agreement was not proved to be a considerable challenge. While SIDS resolved until the content had been agreed. Attempts were considered that greater effort to support adaptation made to form a “lawyers group” to discuss the legal form of action was necessary, it was also important to ensure the agreement; however, such discussions were discouraged that adaptation represented country-driven actions and by a number of Parties. SIDS interests in having a legally not something prescribed from above. Recognising the binding treaty were driven by the need to have an outcome particular vulnerabilities of SIDS within the adaptation that had a stronger legal character than the pledges made provisions proved a major stumbling block in the by the ill-fated Copenhagen Accord. negotiations. SIDS teamed up with the LDCs to have them Towards the end of the first week of the CoP, Parties collectively recognised as the most vulnerable. Many other began to coalesce around the legal form being a ratifiable developing countries also laid claim to being particularly agreement, hence a treaty. This was matched by parallel vulnerable. A strategic campaign led by a group of Latin consideration of the binding nature ofAUTHOR the provisions American COPY countries thwarted any approach by SIDS and within the agreement. As the legal form became fixed, the LDCs to be recognised as particularly vulnerable. Some provisions within the agreement moved towards softer African and mountainous countries also made claims to obligations. This became apparent in the context of the this description. In the end, there is a generic reference binding nature of nationally determined contributions. to particularly vulnerable countries without specifying While most SIDS were keen to see these as legally who they are (Article 7.2). The special circumstances of binding commitments listed in an annex to the treaty (a SIDS and LDCs were specifically recognised later in the position originally supported by the EU), other Parties, Agreement in the context of financial support for countries particularly the US and the LMDC, were disinclined to that are particularly vulnerable to the adverse effects of support the term “commitments” nor were they interested climate change and have significant capacity constraints in a binding annex to the agreement. Even the nature of and need readiness support (Articles 9.4 and 9.9). the obligation to actually carry out nationally determined commitments/contributions was contested. Commitments Loss-and-Damage and Liability Provisions became contributions. In reference to each Party’s Perhaps one of the most ground-breaking elements obligation to undertaken actions to carry out their nationally of the Agreement for SIDS was its provisions on loss determined contributions, the US placed the word “fulfil” and damage. SIDS in collaboration with LDCs worked in brackets, thereby nullifying any legal obligation to carry tirelessly to ensure that the loss-and-damage concept was out a nationally determined contribution. The European incorporated within the Agreement. The first step in this Commission, realising that this was a “red line” issue for strategy was to get the whole of the G77 and China on the US, formed a small negotiating group to try and find board. With strong leadership from Bolivia and careful text compromise language that was acceptable to all. In the adjustments, including in relation to the concept of common final version of the Paris Agreement, the word “fulfil” but differentiated responsibilities, the G77 and China agreed

0378-777X/15/$27.50 © 2016 IOS Press 108 Environmental Policy and Law, 46/2 (2016) to a common text on loss and damage. This was agreed in Divisions among the SIDS the September session of the ADP. Loss-and-damage was no Throughout the negotiations, there were some longer an exclusive issue for SIDS and LDCs. All developing issues where SIDS had significantly different positions. countries were engaged and had an interest. These included approaches to reducing emissions from Despite the support of the G77 and China, there was deforestation and forest degradation (REDD+), emissions strong resistance regarding the issue of loss and damage. from international aviation and maritime transport (“bunker The US’s efforts to limit the application of loss and damage fuels”), and market mechanisms. were three-layered. First it proposed that the issue would On the issue of REDD+, some SIDs, particularly those only appear in an accompanying decision. Then, when this that were members of the Coalition of Rainforest Nations, approach failed, it proposed language to be incorporated in were strongly advocating for market-based mechanisms for the section on adaptation, hence creating ambiguity over the REDD+. Other SIDS were sceptical whether the market purpose of the clause. Finally, it stated that if the loss-and- could deliver real emissions reductions in the forest sector. damage issue was to be included in the agreement it would This divide in perspective was not unique to SIDS. The need an explicit clause, within the agreement, indicating LMDC group and the Least Developed Countries had that actions on loss and damage would not lead to claims differing internal perspectives on REDD+. In the end, the for compensation or liability. Paris Agreement perpetuates the ambiguous phraseology During the entire two weeks of the CoP, only one of “results-based payments”, leaving it open for future formal negotiation took place on this issue. It was clear meetings to decide whether this included a carbon market to the ADP Co-Chairs and then the French Presidency for REDD+ outcomes (Article 5.2). that this was a sensitive issue and would most likely be Another issue which created tensions within the resolved in bilateral negotiations between the US and the group related to bunker fuels. Some SIDS were strongly SIDS/LDCs group. The EU, too, appeared to be happy supportive of accounting for these emissions sources. taking a back-seat position, allowing the US to take the Others held a contrary position. In the latter camp were role of primary advocate for excluding loss and damage some SIDS with large shipping registries and stores of from the agreement. In the last few nights of the CoP, the bunker fuels, who were therefore strongly opposed to the US Secretary of State and the Prime Minister of Tuvalu notion of accounting for these sectors. Other SIDS were held bilateral discussions, primarily to resolve the issue of also concerned that accounting for ship emissions may liability. Following these, a negotiating group composed affect cruise-ship tourism – an economic mainstay of some of a small group of representatives from the US, SIDS island countries. The EU tried to develop joint text with and LDCs met in the office of the CoP Presidency to some SIDS and LDCs on this issue – to no avail. Emissions negotiate the final text. The loss-and-damage clause was from international aviation and maritime transport are not included as a separate section of the Paris Agreement specifically mentioned in the Paris Agreement although (Article 8) and the “liability exclusion clause” was placed the door remains ajar for Parties to address their emissions in the accompanying decision text (para. 52 of 1/CP.21). within their nationally determined contributions or through Undoubtedly, there will be considerable commentary on cooperative approaches established under Article 6 of the the implications of this exclusion clause. Paris Agreement. Refugees and Assistance Conclusion The EU was only brought in towardsAUTHOR the end of the OverallCOPY the Paris Agreement and its accompanying loss-and-damage informal negotiation to discuss one clause decision represent progress for SIDS within the climate relating to establishing a facility to assist people displaced change regime. Nevertheless, it is far from what some by the impacts of climate change. At the EU’s insistence, SIDS were hoping for. Mitigation review mechanisms, the issue of displacement was relegated to the decision new finance for adaptation, and advancing work on loss text. The decision requests the Executive Committee of and damage will be important next steps for SIDS. The the Warsaw International Mechanism on Loss and Damage real work will now commence in developing the rules to to establish a task force to develop “integrated approaches implement these provisions. Needless to say, the outcomes to avert, minimize and address displacement related to the of leadership elections in some key countries, before the adverse impacts of climate change” (para. 50, 1/CP.21). Paris Agreement enters into force, will be crucial to give Despite not being included in the Paris Agreement, the task SIDS the reassurance that their future is assured. force has the potential to develop significant outcomes, particularly in the realm of finding legal remedies for Notes people internationally and externally displaced by the 1 [According to the UNFCCC website (http://unfccc.int/essential_background/ convention/items/6343.php), the Umbrella group was “a loose coalition of non-EU impacts of climate change. Currently these people do developed countries which formed following the adoption of the Kyoto Protocol. not fit within the definition of a refugee under the 1951 There is no formal list, but the Group is usually made up of Australia, Canada, Convention relating to the Status of Refugees and its Iceland, Japan, New Zealand, Norway, the Russian Federation, Ukraine and the US”. Ed.] 1967 Protocol relating to the Status of Stateless Persons. 2 The Caribbean Community and Common Market, comprising 15 countries As the impacts of climate change become more severe, from the region: Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, the need to develop new norms of international law with Grenada, Guyana, Haiti, Jamaica, Montserrat, Saint Lucia, St Kitts and Nevis, respect to people displaced by climate change will become St Vincent and the Grenadines, Suriname, and Trinidad and Tobago. increasingly necessary.

Climate Change - Are We Really Confronting this Challenge? by Palitha Kohona*

Winston, the worst cyclone on the country’s records, The potential consequences of ocean warming are lashed the idyllic islands of Fiji in February, leaving behind myriad. It is expected to cause economically valuable fish an unprecedented trail of devastation and death. A decade of species to relocate to cooler climes. Such fish and their hard won economic achievements lay scattered in a jumble availability are critically important to poor communities of twisted steel and shredded plantations. Many whose lives in the tropics, both as sources of income and protein. In had at last become more bearable are once again struggling addition, low lying coastal areas are likely to be flooded and to exist. Science suggests that the deaths and destruction fresh-water resources contaminated, affecting large human experienced by Fiji are likely to be repeated elsewhere, settlements, especially in developing countries. Increasing more frequently, as global warming and climate change ocean acidification and the phenomenon known as “coral begin to affect the planet’s environment, in particular the bleaching” could cause other devastating consequences to oceans. The effects of hurricanes Katrina and Sandy on coastal areas and fish habitats. Moreover, the ocean is the the US and typhoon Haiyan on the Philippines are still biggest sink of greenhouse gases (GHGs) on earth. GHG vivid in our minds. increases are expected to cause greater warming and faster Fiji’s experience would have been much worse at melting of the ice caps. Some small island groups might the individual level, if the country had not set a useful even disappear beneath the waves, leading to mass human example by employing modern technology to warn the migration. population in advance. It is one of many poor countries Scientists now believe that over 70 percent of manmade that have recently been able to employ technology to GHGs generated since the turn of the 20th century were warn their populations in advance of impending natural absorbed by the Indian Ocean, and that this fact may have disasters, minimising the number of deaths and injuries unpredictable consequences for the littoral States of the and, in some cases, damage to property. Thousands of region. Waste generated by humans, especially plastics, Fijians were evacuated to places of safety, thus ensuring which now form a destructive mass in the middle of minimum casualty levels. Villagers were able to help oceans may also possibly contribute to global warming. one another, before the international community became Global warming and sea-level rise are expected to have far- mobilised, especially in the confusing days that followed reaching socio-economic effects on the multibillion dollar the devastating cyclone. While this type of technology has tourism industry (US$476 billion in the US alone). The had a significant impact on major storm situations around recently adopted UN sustainable development goals the world, it is incomplete: reliable earthquake warning (SDGs) acknowledged the significance of the vast and systems have yet to be developed. complex challenges confronting the oceans. SDG-14, in A number of key lessons can be learned from fact, is solely devoted to addressing the “use of oceans, Fiji’s and other countries’ experience. Adequate seas and marine resources for sustainable development”. preparation, particularly issuing warnings through modern In December 2015, over 195 countries met in Paris and, communication technology, could help to curtail deaths and amidst much self-congratulatory hugging and backslapping, injuries. Better construction practices couldAUTHOR reduce damage agreed COPYon broad measures to address the threat to human to dwellings and infrastructure. Bangladesh, for example, existence of global warming and climate change. The UN has invested in earthen platforms on which people can Secretary-General, for whom climate change has been “one take refuge in times of flooding, including after cyclones. of the defining priorities of his tenure”, described the Paris Community action has been the most effective, with people Accord as heralding a generation with climate hope and a providing assistance to one another in Winston’s immediate “monumental triumph for people and the planet”. The Paris aftermath. Accord, if successfully implemented, could very well be The oceans are a major global economic asset that his legacy. French Foreign Minister Laurent Fabius, who are closely linked to any discussion of climate change. chaired CoP-21, emotionally gavelled the meeting closed Estimated to cover 71 percent of the globe, oceans and seas as Avaaz (the global web movement) welcomed the Paris contain exploitable assets valued at approximately US$24 Accord, calling it a “brilliant and massive turning point in trillion.1 In 2013, 86 million tons of fish were harvested human history”. from the oceans, and provided 16 percent of humanity’s The Paris meeting saw the international community protein requirement. Fisheries generate over 200 million commit to curtailing GHG emissions and limiting jobs. Increasingly the world’s energy requirements come global warming to 2˚C above pre-industrial levels by from the oceans and seas in the form of oil and gas from 2050, with an aspirational target of 1.5˚C. Agreed by below the sea bed, as well as wind and wave power. The representatives of 188 countries, the Accord commits its sea-bed is also expected to be the source of many of the Parties to undertaking measures unilaterally to realise this minerals required by competing industries. goal, announcing their “Intended Nationally Determined Contributions towards achieving the objective of the * Former Ambassador of Sri Lanka to the United Nations; and Head of the Convention” (INDCs), which have already been submitted UN Treaty Section. to the Climate Change Secretariat. INDCs are not

0378-777X/15/$27.50 © 2016 IOS Press 110 Environmental Policy and Law, 46/2 (2016) binding but will be reviewed every five years. There is at least. Republican presidential candidates are anything but also a commitment, originally made in Copenhagen, to enthusiastic about limiting GHG emissions. A Republican provide US$100 billion to developing countries to help presidential victory and consequent withdrawal of US them address adaptation and mitigation by 2020, and at approval of the Accord would provide the excuse for least that same amount afterwards. The most vulnerable many other countries to withdraw, or to renounce their countries will receive over US$250 million. Some own commitments. Already, President Obama’s Executive take the view that the Paris Accord has the potential to Orders on GHG emissions are being challenged in court. “decarbonise” the world economy by the middle of the Sixty percent of GHGs emanate from just five countries, current century and to assist those under immediate threat the US, China, India, Russia and Japan, and the EU is in adapting and adjusting to global warming and climate responsible for 12 percent of global emissions. These change, especially sea-level rise. The Paris Accord will be countries can collectively make a significant contribution open for signature at the UN in New York from 22 April to decarbonising the world economy. 2016 and will enter into force upon ratification/accession The Paris Accord requires parties to meet every five by 55 countries that account for at least 55 percent of the years, but only to review progress. It does not legally global emissions. commit them to curtail emissions or to comply with their Nevertheless, doubts remain as to whether humanity INDCs. The review process could be unreliable and its has really confronted this overwhelming challenge to results uncertain due to various pressures asserted by, its continued existence. Even if the INDCs are faithfully inter alia, domestic industry. According to Climate Action implemented, global temperatures will continue to rise until Tracker (CAT), only five countries have submitted INDCs at least 2030. Cyclones, hurricanes, typhoons and other that are fully consistent with the 2°C limit. In fact, if such natural phenomena are likely to become increasingly globally scaled, the climate pledges of many countries more destructive. Sadly, however, past experience does such as Australia, Canada or the Russian Federation would not engender great confidence that such implementation actually lead to global warming of more than 3°C. At the will occur. The Kyoto Protocol to the UN Framework very least, major emitters such as the US, the EU, China Convention on Climate Change, concluded by consensus and Brazil will have to revise their INDCs, if the goal is in 1997, was also welcomed with joyous acclaim. But the to be achieved. US, the biggest emitter of GHGs at the time, although While some developing countries may be capable of actively participating in the negotiations and signing the realising the INDCs on their own, many will need funding Protocol, never became party to it. A new administration and climate-safe technology to achieve the transition. Much took power in Washington following the US’s signature, of this technology is already available, but at a high cost. In which considered it a priority matter to ensure that the US Copenhagen, UNFCCC CoP-15 set the target of US$100 would not become a party, and to stridently oppose the billion to be provided by developed countries by 2020. This Kyoto Protocol. figure refers only to funds made available through public Other key players have similar track records. Canada, sources, although it is not clear where exactly these funds a major exporter of fossil fuels and industrialised will come from. The Paris Accord contains no quantitative agricultural products, also actively participated in the target. It states that there should be a progression beyond Kyoto negotiations. In 2011, largely due to its inability previous efforts, but postpones the revision of the already to fulfil its commitments, it formally withdrew from the insufficient target to 2025. Protocol. Australia, too, was active in Kyoto.AUTHOR It is a major TheCOPY World Bank estimates the funding requirement exporter of coal, natural gas and agricultural products. to facilitate transition to low-carbon and climate-resilient The economic ability and political will of countries such economies by developing countries alone to be in the as Australia and Canada to dramatically introduce changes trillions of dollars. For its part, it will increase the to their fossil fuel export-dependent economies will proportion of funds available to 28 percent of its portfolio. remain a critical question. Harmful industrial agricultural The Bank estimates that once financing from partners and practices, especially large-scale animal farming, may pose associated private-sector funders is included, the grand difficult hurdles for countries dependent on their exports. total available by 2020 would be a potential US$29 billion Subsidised exports of fossil-fuel-consuming power plants per year. The US has pledged US$800 million. China has by developed countries such as Germany could force pledged US$3.1 billion to support developing countries developing countries to commit to years of fossil fuel in their efforts to counter climate change. What has been consumption. The fast growing economies of China, India offered still falls far short of the US$100 billion that is and Brazil have only recently dragged millions of their supposed to be made available by 2020. people out of poverty, largely through the consumption of In this connection, it is also notable that funding for the fossil fuels. These countries, too, may face huge domestic SDGs remains a significant challenge, despite the Addis challenges in any effort to curtail GHG emissions. Ababa Accord. Given the extremely high estimates of the The US is now the second biggest emitter of GHGs. costs of addressing the two new commitments (SDGs and It again played a central role in consensus building in climate change), it is likely that something somewhere Paris; however, once again a change of administration will lose out. looms. President Obama’s tenure will end in 2016. The Beyond direct funding, the Paris Accord also mentions Republican Party, which has not supported GHG controls, the establishment of an insurance mechanism to address will continue to control the US Congress until that election, “loss and damage associated with the adverse effects

Until recently, Viet Nam had the biggest coal development plans in Southeast Asia – about 70 new coal-fired power stations, about one-fifth of which were already under construction. The planned production was as much as the entire operating coal capacity of Japan. In January, however, Viet Nam’s Prime Minister Nguyen Tan Dung announced the cancellation of all new coal power projects. In his statement, Nguyen referred to the Paris Agreement and asserted that he would “responsibly implement all international commitments in cutting down greenhouse gas emissions”. Given the complexity of the climate change problem, the enormous A school in Tailevu Province destroyed by Tropical Storm Winston Courtesy: Flickr (by Australian Department of Foreign Affairs and Trade) estimated cost of addressing it comprehensively, and the inevitable resistance from vested interests, of climate change”. Arguably, this might include the governments should also consider approaching the costs of population displacement/relocation, etc. Even challenge through key economic sectors, e.g., power then, however, it may not be adequate to deal with the generation, motor transport, railways, etc. emerging crisis. With sea-level rise, the prospect of In conclusion, it seems clear that there is at least mass movement of environmental refugees is no longer one critical current climate-change-related challenge a matter of speculation; it demands our attention. Vast that has not been addressed by the Paris Accord. Rapid population displacements could be a real consequence of recovery from the devastation of a major natural disaster global warming. Some writers have already alluded to the such as Cyclone Winston poses a critical challenge possibility of Europe’s present refugee crisis at least partly for any small country. The sooner an adequate fund is having its roots in climate change. With global temperatures established to finance such recovery efforts through a continuing to rise till at least 2030, difficult modifications politically neutral body such as the UN, the better. The to economic activity and life styles will be necessary to financial requirements to restore a devastated country achieve the 2°C goal by 2050. can be substantial. While economically advanced The Paris Accord does not refer to “new and additional neighbouring countries can and do step in to assist in funding”, leaving room for official development assistance providing immediate relief, this assistance is never figures to be mixed up with climate assistance in adequate to meet the needs of an affected country. The UN determining these amounts. Already someAUTHOR countries have should COPYalso seriously consider creating a rapid reaction indicated that they are counting private-sector lending as capability to deal with environmental emergencies. development assistance. Efforts to hold historic polluters Precedents exist. The major powers have military units responsible for the current crisis have been effectively ready to be deployed at short notice to deal with military quashed. For example, in 2011-2014, Palau and Trinidad and strategic emergencies. The European Union has its and Tobago asked the General Assembly to request an rapid deployment force. Even the UN has explored the advisory opinion from the International Court of Justice on possibility of establishing a rapid reaction force to deal responsibility for global warming. The General Assembly with humanitarian emergencies. It is entirely conceivable did not approve that proposed resolution. that the UN could establish a capability to react rapidly One bright spot might be the encouragement that the to environmental emergencies which are likely to occur renewable energy industry will receive from the Paris with greater frequency and which could affect the weakest outcomes. In this aspect, many countries are demonstrating countries disproportionately. Emergency stores could be positive developments. For example, China, which is strategically located and rosters of personnel identified on today’s leading emitter of GHGs, is clearly targeting its a regional basis, to be drawn upon at short notice. Small heavy investments in renewable energy. Specific industrial and less developed countries should not have to deal with sectors, such as the manufacture of solar panels and wind the consequences of global warming and climate-change- turbines, are booming and benefiting the environment. related disasters on their own. In addition, concerned about its on-going air pollution challenges, China has also imposed a moratorium on coal Notes mining for the next three years. In the US, President Barack 1 See WWF. 2015. Reviving the Ocean Economy: The case for action – 2015. Gland: WWF International. Available at http://assets.worldwildlife.org/ Obama has taken a similar step – halting coal mining on publications/790/files/original/Reviving_Ocean_Economy_REPORT_low_res. public land. pdf?1429717323&_ga=1.195283752.560584337.1446137096.

CITES/SC-66

Tackling Challenges in Wildlife Trade by Efstathia Laina*

The 66th meeting of the Standing Committee (SC-66) 30,000 flora species are protected under the three CITES of the Convention on International Trade in Endangered Appendices.5 Species of Wild Fauna and Flora (CITES) took place in During SC-66, Tajikistan joined the Convention as its Geneva, Switzerland, from 11–15 January 2016. SC-661 182nd member. Its accession will become effective as of was attended by approximately 500 participants from 30 March 2016. 77 Parties, 59 intergovernmental organisations, 139 non-governmental organisations and 16 private-sector Species-specific Resolutions organisations. The meeting’s agenda included close to 150 Asian Big Cats agenda and sub-agenda items, and its participants addressed SC-66 elaborated draft decisions on Asian big cats,6 and/or reviewed 100 documents adding up to 2,700 pages. including, inter alia, the following provisions: More than 30 side events were held in the margins of the (a) The Secretariat will conduct a review of the number meeting, which was considered successful in tackling major of Asian big cat captive facilities in the territories of conservation challenges. Parties and the number of Asian big cats kept in these Taking note of the work of the two scientific committees facilities; will review legal and illegal trade in Asian of the Convention, the Animals Committee2 and the Plants big cats from or through such facilities, identifying Committee,3 which had both convened a few months before those which may be of concern, in liaison with the SC-66, the SC considered the preparation of the issues International Consortium on Combating Wildlife proposed to be presented at the 17th CITES Conference of Crime (ICCWC) and other partners; and will undertake the Parties (CoP-17) in Johannesburg, South Africa, this a mission to those Parties with facilities of concern, in September.4 SC-66’s lengthy agenda included topics related order to gain a better understanding of the operations to a number of different species, including elephants, and activities undertaken by them; rhinos, Asian big cats, cheetahs, Saiga antelopes, pangolins, (b) Parties with Asian big cat captive facilities will sharks and rays, ebony and rosewoods, as well as numerous review national management practices and controls operational and policy issues, including the development concerning these facilities, to ensure that they are of traceability systems, national reporting, legislative adequate to prevent Asian big cat specimens from implementation of the Convention, international measures entering illegal trade; and to be taken where on-going trade is impacting a listed (c) The Secretariat will work with ICCWC partner species (Article XIII), the significant trade programme, organisations, in particular INTERPOL, to initiate, and international cooperation in CITES enforcement. plan and carry out joint intelligence-driven national This review will briefly summariseAUTHOR a selection of andCOPY transnational investigations, to disrupt and recommendations adopted and draft resolutions prepared dismantle the criminal groups involved in trafficking during the meeting. of Asian big cat specimens. Discussions drew attention to an INTERPOL operation known as Protection of Background Asian Wildlife Species II (PAWS II), which has been Signed in 1973 and in force since 1975, CITES regulates initiated and coordinated by 17 Parties with support international wildlife trade through a system of permits and from ICCWC and multiple donors. certificates that are required before protected specimens are imported, exported or introduced from the sea. Protected Included in its recommendations on Asian big species are listed in three appendices. Appendix I lists cats, SC-66 encouraged Parties that have started DNA species endangered due to international trade, permitting registration, photographic identification, and other such trade only in exceptional circumstances. Appendix types of identification databases of captive Asian big II lists species that may become endangered if their trade cats to share information with relevant countries, for is not regulated, thus, controls are required to prevent law enforcement purposes. It also, inter alia, invited species from entering Appendix I, prohibit unsustainable the Secretariat and Parties with financial resources and use and maintain ecosystems. Appendix III lists species technical expertise to assist in the establishment of subject to domestic regulations by a Party requesting the national registries or identification databases for Asian cooperation of other Parties to control international trade big cats; invited Parties to support the establishment of of that species. Approximately 5,600 fauna species and the Southeast Asia regional DNA database of protected species and similar complementary DNA databases for other regions; encouraged Parties to adopt an effective * LL.M., Lawyer, Thessaloniki, Greece; and frequent contributor to EPL. approach to prevent online advertising and trading of

0378-777X/15/$27.50 © 2016 IOS Press Environmental Policy and Law, 46/2 (2016) 113 illegal products of Asian big cats through websites, social range States that debating further exploitation of elephants media and other Internet services; and invited China, for legal trade in ivory would send the wrong message to India, the Lao People’s Democratic Republic (Lao PDR), poachers, traders and consumers, it agreed to seek advice Myanmar, Nepal, Thailand and Viet Nam to strengthen from CoP-17 as to whether the mandate of that Working their engagement in operational enforcement activities Group should be extended.10 within the framework of the INTERPOL project Predator Tiger Crime Initiative, and any similar future initiatives. Cheetahs In its recommendations concerning illegal trade Elephants in cheetahs (Acinonyx jubatus),11 SC-66 encouraged SC-66 considered the reports on elephants submitted by States and Parties that are implicated in the illegal Parties of “primary concern” and the progress evaluation trade in cheetahs (including range States of cheetahs, and recommendations submitted by the Secretariat.7 The as well as countries through which they transit, and Committee agreed that China (including Hong Kong destination States) to urgently take action. Among the SAR), Kenya, the Philippines, Thailand and Viet Nam have recommendations to those States are the following: “substantially achieved” their National Ivory Action Plans develop national public awareness campaigns to reduce (NIAPs)8 and encouraged these Parties to report by 30 June illegal offer and demand; further strengthen national 2016 to the Secretariat, on any further measures taken to and regional enforcement actions; make use of existing implement their NIAPs or any other initiatives undertaken systems for exchange of information provided by to combat elephant poaching and illegal ivory trade, so that INTERPOL and the World Customs Organization; the Secretariat could make the reports available to SC-67. request support from ICCWC partners in order to conduct In a few cases, the Committee recommended stern joint operations between East Africa and the Middle measures. Regarding Nigeria (a Party of “secondary East, targeting known or suspected smuggling routes; concern”), and Angola and the Lao PDR (Parties that request that ICCWC and other relevant partners support are “important to watch”), the Standing Committee Parties in their enforcement operations targeting illegal recommended that commercial trade in specimens trade in cheetah specimens conducted via e-commerce; of CITES-listed species with these Parties should be collaborate on the humane disposal of confiscated live suspended until these Parties submit a progress report cheetahs through the use of existing and, where required, confirming that some progress has been made on NIAP the establishment of national or regional rescue centres, implementation. paying particular attention to maximising the contribution The Committee also noted other countries that did of the specimens to conservation of the species in the wild; not submit reports concerning their progress in NIAP and inform the Secretariat of facilities available for the implementation. It requested that Malaysia, Uganda and the disposal of confiscated live cheetahs to be published in United Republic of Tanzania (Parties of “primary concern”) the CITES cheetah toolkit and on the website. enhance efforts to progress the implementation of NIAP The cheetah trade resource kit is intended to address, actions and report to the Secretariat by 30 June 2016 on inter alia, the identification of live cheetahs, and parts and the further measures taken. Other parties of secondary derivatives thereof in connection with the monitoring and concern – Cameroon, Congo, the Democratic Republic of control of trade in cheetahs. It will include protocols to be the Congo, Egypt, Ethiopia, Gabon and Mozambique; as followed in case of seizures (e.g., handling, DNA sampling, well as Cambodia (another Party consideredAUTHOR “important reporting COPY for data collection such as studbooks); guidance to watch”) – were also encouraged to enhance efforts so on the immediate and long-term disposal of live animals that the Secretariat could make the reports available to the (veterinary care, contact details of experts or potential Standing Committee at SC-67. rescue centres, advice on procedures, and reporting on The Committee prepared a draft decision to be disposal activities); and lists of suitable housing facilities submitted to CoP-17, requesting the Secretariat to convene for live cheetahs. a meeting of Parties concerned with the development and implementation of NIAPs, for the exchanging of Saiga Antelope experiences and best practices, and the identification of According to the revised draft decisions that the opportunities for cooperation. That decision also noted Standing Committee agreed to submit to CoP-17,12 the actions taken since SC-65 by China, Ethiopia, Hong range States of Saiga antelope (Kazakhstan, Mongolia, Kong SAR, India, Kenya, Mozambique, the Republic of the Russian Federation, Turkmenistan and Uzbekistan), Congo, Thailand, the United Arab Emirates and the US, and countries that are bases of trade in saiga parts in destroying ivory stockpiles and urged all Parties to and derivatives, should fully implement the measures report by 31 January 2016 the data required by the CITES directed to them in the Medium-Term International programme for Monitoring the Illegal Killing of Elephants Work Programme for the Saiga Antelope (2016–2020), and by the Elephant Trade Information System in time for developed in support of the Convention on Migratory that information to be considered at CoP-17. Species (CMS) Memorandum of Understanding concerning SC-66 also noted that the Working Group on the the Conservation, Restoration and Sustainable Use of the Decision-making Mechanism for a Process of Trade in Saiga Antelope and its Saiga Action Plan. Consumer and Ivory had been unable to conclude its work, as required by trading countries should also promote the use of products CoP-16.9 Taking into account the concerns expressed by with similar medicinal properties to saiga parts and

0378-777X/15/$27.50 © 2016 IOS Press 114 Environmental Policy and Law, 46/2 (2016) derivatives; support the development of tools to facilitate consumer awareness, and research into the motivations the identification, sourcing and aging of saiga horns; ensure of illegal trade in pangolin specimens. It calls for further effective stockpile management; promote training of, and research on many of these issues, to be reported to SC-69. cross-border collaboration amongst, enforcement agencies; and tackle new illegal trade channels such as those using Snakes social media. SC-66 considered the Animals Committee recommendations on snake trade and conservation Sharks and Rays management, and prepared relevant draft decisions for SC-66 welcomed the draft recommendations issued by submission to CoP-17.17 That decision was essentially the Animals Committee at its 28th meeting, concerning the an omnibus resolution, including references to virtually conservation and management of sharks, and asked the all aspects of CITES’s current approach to species Secretariat in collaboration with the Chair of the Animals management. Among other things, it discussed the use Committee to prepare draft decisions for consideration at of existing guidance and NDFs; the need for help in CoP-17 based on them.13 In its draft recommendations, identification/listing of additional species affected by the Animals Committee encouraged Parties to make trade; the value of public awareness raising to combat their Non-detriment Findings (NDFs) available to the snakes’ negative public image; national reporting; and Secretariat for posting on the CITES Sharks and Rays the challenges of captive breeding, traceability and Portal. It also requested the Secretariat, the UN Food tagging. and Agriculture Organization and CMS to continue Specific provisions in the SC-66 recommendation noted and expand their on-going collaboration in relation to that the traceability systems should commence as close the implementation of the shark and ray Appendix II to the point of harvest of the animal or production of the listings agreed at CoP-16. The draft recommendation skin as possible and made recommendations regarding urged all regional fisheries bodies to make CITES-listed the specific objectives of such systems. Calling on Parties species a priority for data collection, data collation and to eliminate the important illegal and unreported trade in stock assessments; and also to develop and improve specimens of CITES-listed snake species, SC specifically methods to avoid by-catch of sharks and rays and reduce asked that they ensure that CITES permits and certificates their mortality, including by exploring gear selectivity are properly issued; include information on trade in these and improved techniques for live release. Also noted specimens in their CITES annual reports; and follow the was the iSharkFin tool, which the Animals Committee most recent version of the Guidelines for the preparation recommended as a possible support to the identification and submission of those reports. of dried and skinned shark fins. Malagasy Ebonies, Palisanders and Rosewoods Rhinoceroses The inclusion of commercial timber species in the Regarding rhinoceroses,14 SC-66 encouraged all Appendices having been well implemented, trade-related Parties to make every effort to effectively implement the recommendations concerning ebonies (Diospyros spp.), pre-existing resolution,15 and the strategies and proposed and palisanders and rosewoods (Dalbergia spp.) from actions developed by the CITES Rhinoceros Enforcement Madagascar also came before SC-66. The Committee Task Force. The SC also invited Parties to consider South recommended that all Parties suspend commercial trade in Africa’s National Environmental ManagementAUTHOR Biodiversity specimens COPY originating from Madagascar until Madagascar Act, under which a permit is required to possess rhinoceros submits a report, demonstrating that it has significantly horn in South Africa, as a possible model that could be increased enforcement actions at the national level.18 The drawn upon by Parties. Following up on the existing recommendation indicates that Madagascar should, in resolution, the SC urged all Parties that have stocks of particular, report on seizures, prosecutions and sanctions. rhinoceros horn to identify, mark, register and secure The Standing Committee warned Madagascar that, if it such stocks, and declare these to the Secretariat each year does not make significant progress in implementing the before 28 February, and directed the Secretariat to make actions outlined above, SC-67 will consider additional an aggregated summary of the rhinoceros horn stock measures, which may include a recommendation to all declarations of Parties available to the IUCN/SSC African Parties to suspend commercial trade in specimens of all and Asian Rhino Specialist Groups and TRAFFIC for CITES-listed species from Madagascar. analysis and inclusion in their reporting to the Secretariat. Administrative and Policy Issues Pangolins Traceability SC-66 prepared draft resolutions for consideration Regarding the increasing challenge of traceability,19 at CoP-17 concerning conservation of and trade in the Standing Committee agreed to submit to CoP-17 pangolins.16 Among other recommendations, SC-66’s draft draft decisions calling for a working group to operate addressed the need for national legislation and penalties in collaboration with the CITES Secretariat. The draft protecting these species; inter-agency and international also notes that some Parties are joining forces to address cooperation to combat illegal trade; enhanced forensic this issue collaboratively, and directs the Secretariat to techniques; and guidance on safe handling and transport. develop a portal on the CITES website on traceability, It also includes recommendations on captive breeding, to support both the working group and these diffused

0378-777X/15/$27.50 © 2016 IOS Press Environmental Policy and Law, 46/2 (2016) 115 actions. It also calls for an expert report, the development concerning the ineffective implementation of CITES of guidelines, and in particular the need to enunciate a provisions in the Democratic Republic of the Congo possible governance model for use in CITES traceability (DRC).23 It recommended inviting DRC to establish an systems. efficient information system to verify the legal origin of specimens in trade and to amend CITES implementing Submission of National Reports legislation to prevent specimens that have been obtained With regard to national reports, the Standing Committee in contravention of national law to be legalised. Regarding identified 14 countries that have failed to provide annual illegal trade, it also recommended, inter alia, that DRC reports for three consecutive years, without having provide information to the Secretariat on any theft of provided adequate justification: Bhutan, the Central CITES permits, certificates or security stamps; and African Republic, Congo, Grenada, Guinea, Mali, provide to the Secretariat the results of any investigations Mongolia, Nicaragua, Panama, Rwanda, San Marino, Sao conducted by the competent national authorities to Tome and Principe, Solomon Islands and Vanuatu.20 Its determine the origin of the fraudulent documents, the recommendation is that the Secretariat issue a Notification identities of individuals involved in detected smuggling, asking Parties not to authorise any trade with those Parties and the results of any legal proceedings against those in specimens of any CITES-listed species until the reporting people. deficit is remedied. Much of the discussion of the DRC issues focused To avoid facing the same type of sanctions next year, on the management of exports of the African grey parrot the Standing Committee urged 24 more countries that have (Psittacus erithacus). In this connection, the Standing not submitted their 2013 and 2014 reports to do so as soon Committee also exercised its less formal trade-suspension as possible. The countries identified under this point were power, recommending that all Parties suspend commercial Albania, Armenia, Belize, Benin, Chad, Comoros, Djibouti, trade in specimens of that species originating from Brunei Darussalam, Dominica, Equatorial Guinea, Eritrea, DRC until DRC develops a scientifically-based field Gambia, Honduras, Kyrgyzstan, the Lao PDR, Malawi, survey to establish the population status of the species Mauritius, Monaco, Nigeria, Oman, Saint Lucia, the Syrian in the country and, besides, commences implementation Arab Republic, Uganda and Ukraine. of a National Management Plan for the species. The suspension decision specifically excludes a 2016 export National Laws and Effective of 1,600 specimens already collected and ready for export, Implementation of the Convention awaiting only confirmation of authenticity of export Noting that three countries (Guinea-Bissau, Liberia and permits by the Secretariat. Venezuela) have failed to adopt the legislative measures for effective implementation that are required under the Review of Significant Trade Convention and/or to agree an appropriate legislative The CITES programme known as the Review of timetable to remedy this situation, the Standing Committee Significant Trade in specimens of Appendix-II species recommended a suspension of all commercial trade in was adopted in the 1990s, as a tool for addressing the specimens of CITES-listed species from any of those conflicts between commercial and conservation objectives. countries.21 This recommendation will take effect on 15 The Standing Committee plays an important role in this March. process.24 In essence, after receiving referrals regarding Seven other countries (Belize, Bolivia,AUTHOR Kazakhstan, unsatisfactory COPY State performance, it decides on appropriate Mauritania, Mozambique, Pakistan and Paraguay) were actions and makes recommendations to the State concerned, also noted to have legislative deficiencies. These situations, or to all Parties. although also identified as priority issues, did not require In this context, SC-66 issued recommendations to all immediate sanctions. The Standing Committee noted Parties, calling for the suspension of trade in a number of that all seven were making progress. As they had not yet specimens originating in specified countries: adopted the appropriate measures, however, SC-66 issued • Giant clams and other clam species (Tridacna derasa, a warning, reminding them of the need to accelerate their T. crocea, T. gigas, T. maxima and T. squamosa) efforts to enact adequate legislation by SC-67. originating from Solomon Islands; • Crab-eating Macaques (Macaca fascicularis), Oriental Ineffective Implementation in the DRC: Ratsnakes (Ptyas mucosa) and pythons (Python Article XIII Action reticulatus) originating from Lao PDR; Under Article XIII, CITES provides a mechanism for • Home’s Hinge-back Tortoise (Kinixys homeana), formal action where a Party’s national implementation Slender Chameleon (Chamaeleo gracilis) and Senegal is a matter of concern, that is, “When the Secretariat Chameleon (C. senegalensis) originating from Benin; in the light of information received is satisfied that any • Slender Chameleon (C. gracilis) and Senegal species included in Appendix I or II is being affected Chameleon (C. senegalensis) originating from Ghana; adversely by trade in specimens of that species or that • Nguru Blade-horned Chameleon (Kinyongia fischeri) the provisions of the present Convention are not being and Kilimanjaro Blade-horned Chameleon (K. effectively implemented”.22 The Standing Committee tavetana) originating from Tanzania; was called upon to consider a recommendation on such • Four-horned Chameleon (Trioceros quadricornis) a situation, on the basis of a detailed Secretariat report originating from Cameroon;

4 SC-66 was the last major meeting of the Standing Committee prior to CITES • West African Seahorse (Hippocampus algiricus) CoP-17, apart from a one-day SC-67 meeting on the day before the CoP. originating from Guinea and Senegal; and 5 For general information concerning CITES, visit its website at https://www. • Certain bubble corals (Plerogyra simplex) originating cites.org/eng. 6 Supra, note 1, executive summary for 11 January 2016, afternoon. Also from Fiji, available on those indices are the Secretariat’s report on Asian big cats and the report of the working group on Asian big cats. until these countries demonstrate compliance with Article 7 Supra, note 1, executive summaries for 12 January 2016, morning and for 15 January 2016, morning. Also available on those indices are the Secretariat’s reports IV, paragraphs 2(a) and 3, concerning these species. on elephant conservation, illegal killing and ivory trade, and on NIAPs. 8 [NIAPs are a planning tool mandated by SC-63 in 2013, to aid in addressing Cooperation with Other Organisations and the poaching of elephants and the illegal trade in ivory. Ed.] 9 [CITES CoP Decision 16.55: “Decision-making mechanism for a process of Enforcement Matters trade in ivory”. Online at https://cites.org/eng/dec/valid16/202. Ed.] Relating to another policy matter that will be presented to 10 Supra, note 1, executive summary for 12 January 2016, afternoon. Also the CoP, SC-66 discussed options to strengthen cooperation available on those indices are the Secretariat’s report on the decision-making mechanism for authorising ivory trade, and the proposal by Benin, Burkina Faso, and synergies between CITES and the other biodiversity- Ethiopia and Kenya recommending that the Standing Committee suspend further 25 related conventions. It specifically considered promoting discussion by the Working Group. actions to reinforce linkages between the Intergovernmental 11 Supra, note 1, executive summary for 14 January 2016, afternoon. Also Science-Policy Platform on Biodiversity and Ecosystem available on those indices is the report of the working group on illegal trade in cheetahs. Services (IPBES) and CITES, with the aim that CITES 12 Supra, note 1, executive summary for 15 January 2016, morning. Also available will be both a beneficiary of IPBES and a contributor to on those indices is the relevant Secretariat document. its processes.26 13 Supra, note 1, executive summary for 15 January 2016, afternoon. Also available on those indices are the Secretariat report and the Animals Committee Specifically with regard to international cooperation report on sharks and rays as well as the report of the working group on sharks and in enforcement, SC-66 agreed to submit to CoP-17 a rays. draft decision requesting ICCWC to develop guidelines 14 Supra, note 1, executive summaries for 12 January 2016, afternoon and 15 January 2016, afternoon. Also available on those indices are the Secretariat report that could be used to promote adequate integrity policies on rhinoceroses, the report of the working group on rhinoceroses and the final and assist Parties to mitigate the risks of corruption in the recommendations of the working group on rhinoceroses. trade chain relating to CITES-listed specimens.27 Strongly 15 CITES Resolution Conf. 9.14 (Revised at CoP-15). 16 Supra, note 1, executive summaries for 12 January 2016, afternoon and noting its support for the work of ICCWC, the Standing 15 January 2016, afternoon. Also available on those indices are the report of the Committee recommendation encourages Parties to make working group on pangolins, the report of the First Pangolin Range States Meeting full use of the “ICCWC indicator framework for wildlife (24–26 June 2015, Da Nang, Viet Nam), and the draft resolution on pangolins for and forest crime”, to measure and monitor the effectiveness consideration at CoP-17 prepared by the working group as an in-session document. 17 Supra, note 1, executive summaries for 12 January 2016, afternoon and 15 of their national law enforcement responses to illegal January 2016, afternoon. Also available on those indices are the Secretariat’s and trafficking in wildlife. SC-66 also encouraged all Parties the Animals Committee’s reports on snake trade and conservation management, the to increasingly draw upon INTERPOL notices as a tool report of the working group on snake trade and conservation management, and the report of the working group, as adopted by the Standing Committee. to bring those involved in illegal trafficking in wildlife to 18 Supra, note 1, executive summary for 15 January 2016, afternoon. justice. It encouraged all Parties affected by significant 19 Supra, note 1, executive summary for 12 January 2016, afternoon. Also poaching of CITES specimens, or Parties that have made available on those indices is an overview on traceability prepared by the Secretariat. 20 Supra, note 1, executive summary for 14 January 2016, morning. a large-scale seizure of such specimens, to reach out to the 21 Supra, note 1, executive summary for 13 January 2016, afternoon. Also Secretariat to request the deployment of a Wildlife Incident available on those indices is the relevant report of the Secretariat. These legislative Support Team, should expert support be needed. deficiencies were identified in CITES CoP Decision 16.33 as requiring priority AUTHORattention. COPY 22 CITES, Article XIII.1. Notes 23 Supra, note 1, executive summaries for 13 January 2016, afternoon and 14 1 The agenda of the meeting and the various reports and documents submitted January 2016, morning. for consideration to SC-66 are accessible at https://cites.org/com/sc/66/index.php. 24 The role and responsibilities of the Standing Committee in the Review of In-session documents of the meeting are accessible from https://cites.org/eng/com/ Significant radeT in specimens of Appendix-II species are described in paragraphs sc/66/com/index.php. Executive summaries for each session of the meeting are q)–v) of Resolution Conf. 12.8 (Rev. CoP-13) on Review of Significant Trade in available at https://cites.org/eng/com/sc/66/sum/index.php. The IISD Reporting specimens of Appendix-II species. See also, supra, note 1, executive summary for 14 Services summary report of the meeting is available at http://www.iisd.ca/download/ January 2016, morning. Also available on those indices is the Secretariat document pdf/enb2187e.pdf. on the implementation of recommendations of the Animals and Plants Committees 2 The Animals Committee convened 30 August–3 September 2015, in Tel (note especially Annex 1). Aviv, Israel (AC28), attended by over 200 participants from national governments, 25 Supra, note 1, executive summary for 13 January 2016, morning. Also available intergovernmental organisations and non-governmental organisations. The agenda of on those indices is the relevant document prepared by the Secretariat. the meeting and the documents submitted for consideration to AC28 are accessible 26 Supra, note 1, report of the Working Group on IPBES. from https://www.cites.org/com/ac/28/index.php. In-session documents of the 27 Supra, note 1, executive summaries for 14 January 2016, morning and meeting are accessible from https://cites.org/com/ac/28/com/index.php. A summary afternoon. record of the meeting is available at https://cites.org/sites/default/files/eng/com/ ac/28/E-AC28-SumRec.pdf. The IISD Reporting Services summary report of the meeting is available at http://www.iisd.ca/download/pdf/enb2185e.pdf. 3 The Plants Committee convened 19–23 October 2015 in Tbilisi, Georgia (PC22), attended by approximately 150 participants from national governments, intergovernmental organisations and non-governmental organisations. The agenda of the meeting and the documents submitted to PC22 for consideration, are accessible from https://cites.org/eng/com/pc/22/index.php. In-session documents of the meeting are accessible from https://cites.org/eng/com/pc/22/com/index.php. Executive summaries for each session of the meeting are accessible from https:// cites.org/eng/com/pc/22/sum/index.php. The IISD Reporting Services summary report of the meeting is available at http://www.iisd.ca/download/pdf/enb2186e. pdf.

ILC

Environment in the Report to UN/GA by Efstathia Laina*

At the 70th regular session of the UN General Assembly Draft Preamble (UNGA-70), the International Law Commission (ILC) The preamble seeks to provide a contextual framework presented the report of its 67th session held in Geneva, for the draft guidelines.5 In the first preambular paragraph, Switzerland, in two parts, from 4 May–5 June and from the Commission acknowledges the essential importance of 6 July–7 August 2015.1 The agenda adopted by the the atmosphere, underlining the fact that the atmosphere Commission for its 67th session included two primary items is a limited, thus, exhaustible resource with limited of relevance to international environmental law and policy: assimilation capacity. In the second preambular paragraph, (a) protection of the atmosphere, and (b) protection of the the Commission, addressing the “functional aspect” of environment in relation to armed conflicts. the atmosphere, refers to the long-range transboundary movement of polluting and degrading substances, Protection of the Atmosphere recognised as one of the major problems of the present- Regarding atmospheric protection,2 ILC-67 had before day atmospheric environment. In the third preambular it the second report of the Special Rapporteur,3 providing paragraph, the Commission considers it more appropriate a further analysis of the draft guidelines submitted in his to characterise the protection of the atmosphere as “a first report,4 received and considered by the Commission pressing concern of the international community” rather at its previous session. As revised, the draft guidelines than “a common concern of humankind”, as the legal addressed the use of terms “atmosphere”, “air pollution” consequences of the concept of “common concern of and “atmospheric degradation” (draft guideline 1); the humankind” remain unclear. In the fourth preambular scope of guidelines (draft guideline 2); the degradation paragraph, the Commission reproduces the Understanding of atmospheric conditions as a common concern of elaborated in 2013, when the topic was initially included humankind (draft guideline 3); the general obligation in its programme of work.6 of States to protect the environment (draft guideline 4); and international cooperation for the protection of the Draft Guideline 1: Definitions atmosphere (draft guideline 5). In Guideline 1, the Commission defines the terms The Special Rapporteur estimated that work on “atmosphere”, “atmospheric pollution” and “atmospheric the topic could be completed in 2020 and presented a degradation”.7 The Commission underscores that the detailed future plan of work. In 2016, he proposed to definitions given are provided only “for the purposes of undertake consideration of three principles – sic utere the present draft guidelines” and not intended to affect tuo ut alienum non laedas (use your own property in any existing or future definitions of any such terms in such a way as not to injure that of another),AUTHOR sustainable international COPY law. While no definition has been given to the development (specifically, utilisation of the atmosphere and term “atmosphere” in the relevant international instruments, environmental impact assessment), and equity – as well as the Commission considers it necessary to provide a working special circumstances and vulnerability. In 2017, he would definition for the draft guidelines, consistent with the address prevention, due diligence and precaution. In 2018, approach of scientists and inspired by the definition given he would focus on the principles guiding interrelationships by a working group of the Intergovernmental Panel on with other fields of international law. Finally, in 2019, Climate Change. issues of compliance, implementation and dispute “Atmospheric pollution”, in paragraph (b), refers settlement would be ironed out. to transboundary air pollution, whereas “atmospheric The Commission decided to refer draft guidelines degradation” in paragraph (c) refers to global atmospheric 1, 2, 3 and 5, as contained in the Special Rapporteur’s problems. Both definitions deliberately focus on human second report, to a Drafting Committee. Draft guideline activity, as the guidelines seek to provide guidance to 3 was referred for consideration in the context of States and the international community. While the term a possible preamble. Based on the report of the “atmospheric pollution” in a broad sense may include Drafting Committee, the Commission provisionally global problems such as ozone depletion and climate adopted a proposed text, consisting of four preambular change, in the draft guidelines it is used in a narrow sense, paragraphs and draft guidelines 1, 2 and 5, together with in line with existing treaty practice. commentaries thereto. The definition of “atmospheric pollution” in paragraph (b) is essentially based on Article 1(a) of the 1979 Convention on Long-range Transboundary Air Pollution. This article initially defined “air pollution” as * LL.M.; lawyer, Thessaloniki, Greece. the introduction of “substances or energy into the air”.

The Commission, however, specifically decided not notes, the concept of international cooperation in modern to include the term “energy” in paragraph (b), stating international law is based on the common interests of the that for the purposes of the draft guidelines, the word international community as a whole. This notion is also “substances” includes “energy” (heat, light, noise and reflected in the third paragraph of the preamble to the radioactivity). draft guidelines, in which the protection of the atmosphere Compared to “atmospheric pollution”, which is defined is presented as “a pressing concern of the international narrowly, the definition of “atmospheric degradation” community as a whole”. At paragraph 1, Guideline 5 in paragraph (c) is more expansive, intended to include provides that States are obliged to cooperate with other problems of ozone depletion and climate change. But States and with relevant international organisations at a this inclusion also results in stricter language. Thus, bilateral, regional or multilateral level, depending on the “atmospheric pollution” is defined as the introduction or nature of the problem they seek to address. Each State may release into the atmosphere of substances contributing to choose among various forms of cooperation. Paragraph 2 “deleterious effects”, while “atmospheric degradation” emphasises the importance of cooperation in enhancing encompasses alterations of atmospheric conditions scientific knowledge, exchange of information and joint that have “significant deleterious effects”. For these monitoring. purposes, the term “significant” (frequently employed In connection with this guideline, the Commission in the Commission’s work) refers to something more reiterated that international cooperation is found in several than detectable, but not necessarily “substantial”. To be multilateral instruments relevant to the protection of the considered “deleterious”, the effect must be measurably environment, explicitly referring to the provisions of so, using factual and objective standards. When combined the Stockholm Declaration on the Human Environment; with “significant”, the determination of the applicability the Rio Declaration on Environment and Development; of the term may vary depending on the circumstances of the Vienna Convention for the Protection of the Ozone a particular case and the period in which such assessment Layer; the United Nations Framework Convention on is made. Climate Change; the Convention on the Law of the Non- navigational Uses of International Watercourses; the 1979 Draft Guideline 2: Scope Convention on Long-range Transboundary Air Pollution; At paragraph 1, Guideline 28 provides a positive the Eastern Africa Regional Framework Agreement on description of the scope of the draft guidelines, indicating Air Pollution; and the West and Central Africa Regional what the draft guidelines deal with – specifically, Framework Agreement on Air Pollution. It also recalled atmospheric pollution and atmospheric degradation as the International Court of Justice’s (ICJ’s) Pulp Mills defined in Guideline 1, paragraphs (b) and (c). It also notes decision, in which the Court emphasised the value of that they deal only with transboundary or global effects cooperation between States as a means of managing the caused by human activity, excluding atmospheric effects of risks of damage to the environment; and refers to examples natural origin. In this respect, the draft guidelines reflect the of its own work, in which the importance of cooperation scientific point of view, according to which human activity has been recognised. is the dominant cause of observed global warming since the mid-20th century. Protection of the Environment in Relation Paragraphs 2 and 3 take the opposite tack, clarifying to Armed Conflict the scope of the draft guidelines in a AUTHORnegative manner – AtCOPY its 67th session, the Commission again considered that is, specifying what they do not cover. In conjunction its on-going work on environment and conflict.10 It had with the fourth preambular paragraph, these two clauses before it the second report of the Special Rapporteur.11 reflect the 2013 Understanding. Paragraph 4 contains the The report identified and examined existing rules saving clause that the draft guidelines do not affect the directly relevant to the protection of the environment status of airspace. The Commission in its commentary that are applicable during armed conflicts, including makes the distinction between the atmosphere and airspace, treaty provisions and relevant principles such as the explaining that airspace is a static and spatial-based principles of distinction, proportionality and precaution institution over which the State, within its territory, has in attack, as well as the rules on military necessity. complete and exclusive sovereignty, while, on the other The report contained proposals of a preamble and five hand, the atmosphere is dynamic and fluctuating, with draft principles. The preamble contained provisions on gases that constantly move without regard to territorial the scope and purpose of the draft principles; it also boundaries. In addition, paragraph 4 indicates that the contained a definition of the terms “armed conflict” and draft guidelines do not address outer space. This paragraph “environment”. Draft principle 1 was general in nature, takes into account that there is no sharp scientific boundary providing for the protection of the environment during between the atmosphere and outer space, also reflecting the armed conflict. Draft principle 2 concerned the application 2013 Understanding. of the law of armed conflict to the environment. Draft principle 3 addressed the need to take into account Draft Guideline 5: International Cooperation environmental considerations when assessing what is In Guideline 5,9 the Commission declares that necessary and proportionate in the pursuit of military international cooperation is at the core of the whole set of objectives. Draft principle 4 contained a prohibition on draft guidelines on the protection of the atmosphere. As it attacks against the environment by way of reprisals. Draft

0378-777X/15/$27.50 © 2016 IOS Press Environmental Policy and Law, 46/2 (2016) 119 principle 5 concerned the designation of areas of major Regarding the proposed formulation that “the ecological importance as demilitarised zones. environment is civilian in nature”, there was much debate. Instead of identifying rules of armed conflict relevant Noting that the law of armed conflict did not provide to the protection of the environment, some members protection to persons or things in the abstract, some suggested that, conversely, the report should identify commented that addressing the environment as a “civilian rules and principles of international environmental law object” would lead to significant difficulties when applying applicable during armed conflict. They suggested that the principle of distinction. Members also expressed although the law of armed conflict applies aslex specialis concern over the formulation regarding the “strongest during armed conflict, legal gaps could be avoided possible protection”, pointing out that it did not accurately by accepting the parallel applicability of international reflect the obligation under international humanitarian law environmental law. As such, they recommended that of taking feasible precautions to avoid and in any event a systematic review of relevant law could be based on minimise damage. One provision – draft principle 3 – was the draft articles on effects of armed conflict on treaties drawn from the ICJ’s advisory opinion on nuclear weapons, adopted by the Commission in 2011. Several members referring to environmental considerations in relation to jus also drew attention to the fact that other legal fields such ad bellum and not jus in bello. According to some, this fact as human rights are relevant to the topic, suggested that the rendered the formulation problematic. It was suggested that relationship between humanitarian law and human rights be the provision should be further elaborated to clarify how addressed. Some members opposed the attempt to simply environmental considerations should be taken into account transpose the rules provided for the protection of civilians in assessing necessity and proportionality. to the protection of the environment. Concerning the prohibition of reprisals, several On scope, there was widespread agreement that it members expressed support, observing that the draft should cover both international and non-international principle mirrors the provision laid down in Article 55, armed conflict. Divergent views arose as to whether the paragraph 2 of Additional Protocol I. Members supported Commission should adopt one single regime covering both the fact that the provision was formulated in such absolute types of armed conflict and whether the draft principles terms, noting that if the environment or part thereof became should also apply to natural and cultural heritage. a military objective, other rules would apply concerning Some members considered that the principles were attacks against it. Members drew attention to the fact that incomplete, identifying lacunae and proposing various the draft extended the prohibition of reprisals to non- additional provisions to address them. One such proposal international armed conflicts, and that it went beyond suggested a prohibition on the employment of “methods or both common Article 3 to the Geneva Conventions and means of warfare which are intended, or may be expected, Additional Protocol II, neither of which contained a specific to cause widespread, long-term and severe damage to the prohibition of belligerent reprisals. Some proposed that natural environment” as set forth in Article 35, paragraph 3, the Commission should either redraft this principle or of the first Additional Protocol to the Geneva Conventions explicitly decide to engage in the progressive development (Additional Protocol 1).12 Others called for the principles of international law. to specifically prohibit, inter alia, military or any other Concerning the establishment of demilitarised zones, hostile use of environmental modification techniques; and members noted that, although the relevant provision the destruction of the environment, not justified by military related to peacetime obligations, it could apply also to necessity and carried out wantonly (drawingAUTHOR from language obligations COPY during armed conflict, or even to post-conflict in General Assembly Resolution 47/37 of 25 November obligations. This discussion raised several important 1992). Another suggestion was to include a duty of States questions concerning its practical application and its to protect the environment in relation to armed conflict normative implications. Noting that mutual agreements through legislative measures consistent with applicable establishing demilitarised zones would offer a higher international law. degree of protection than would unilateral designations, Concerning their purpose, the proposed draft principles members encouraged the Special Rapporteur to analyse were considered by some members to be unduly restrictive. the complex issues arising from this draft principle in her Others questioned the use of the term “collateral damage”, next report. suggesting that it should be either deleted or further In the end, the Commission decided to refer the analysed or addressed in a separate draft principle. While draft preambular paragraphs and the draft principles, members supported the proposal of the Special Rapporteur as contained in the report of the Special Rapporteur, to to include a provision on the use of terms, some of them a Drafting Committee, with the understanding that the noted that the terms “armed conflict” and “environment” provision on use of terms was referred for the purpose involved highly complex issues. Many maintained that of facilitating discussions and was to be left pending. the proposed definition of “armed conflict” was broad When it received the report of the Drafting Committee,13 enough to include non-international armed conflicts. the Commission took note of the draft provisions and Some suggested that clarification might be required to draft principles as provisionally adopted by the Drafting ensure that the draft guidelines apply only to situations in Committee. which the protracted use of force reached a certain level of It is anticipated that the Commission will consider intensity and that they not be considered to include internal commentaries to the draft principles at the next session. disturbances of a pure law-enforcement nature. The Special Rapporteur proposed to devote her third report

6 The text of the Understanding is included at para. 168 in the 2013 ILC report, to the law applicable in post-conflict situations and to available at http://legal.un.org/docs/?path=../ilc/reports/2013/english/chp12. provide a summary analysis of the three phases (peacetime pdf&lang=EFSRAC. obligations, obligations during armed conflict and post- 7 Supra, note 2. 8 Ibid. conflict obligations). 9 Ibid. 10 The topic “protection of the environment in relation to armed conflicts” Future Sessions was included in the Commission’s programme of work at its 65th session, in 2013. th Chapter IX of the 2015 ILC report, concerning this topic, is available at http:// The report recommends that the ILC’s 68 Session be legal.un.org/docs/?path=../ilc/reports/2015/english/chp9.pdf&lang=EFSRAC. [The held in Geneva from 2 May–10 June and from 4 July–12 Commission’s work on this topic has also been discussed in EPL in Pantazopoulos, August 2016. S-E. 2016. “The Environment in Armed Conflicts: Draft Principles”. EPL 46(1): 19–23. Ed.] 11 The second report of the Special Rapporteur, Marie G. Jacobsson, on the Notes protection of the environment in relation to armed conflicts (A/CN.4/685) is th 1 See ILC webpage at http://legal.un.org/ilc/. The report of the ILC’s 67 session available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/N15/154/94/ is available at http://legal.un.org/ilc/reports/2015/. PDF/N1515494.pdf?OpenElement. The preliminary report of the Special 2 The topic “protection of the atmosphere” was included in the Commission’s Rapporteur, considered by ILC at its 66th session, is available at http://legal.un.org/ th programme of work at its 65 session, in 2013. Chapter V of the 2015 ILC docs/?symbol=A/CN.4/674. report concerning this topic is available at http://legal.un.org/docs/?path=../ilc/ 12 [Protocol Additional to the Geneva Conventions of 12 August 1949, and reports/2015/english/chp5.pdf&lang=EFSRAC. Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 3 The firstreport of the Special Rapporteur, Shinya Murase, on the protection of United Nations, Treaty Series, vol. 1125, No. 17512 (entered into force 7 December the atmosphere (A/CN.4/667) is available at http://legal.un.org/docs/?symbol=A/ 1978). Ed.] CN.4/667. 13 The text of the draft introductory provisions and draft principles provisionally 4 The second report of the Special Rapporteur on the protection of the atmosphere adopted by the Drafting Committee (A/CN.4/L.870) is available at http://legal. (A/CN.4/681) is available at http://legal.un.org/docs/?symbol=A/CN.4/681. un.org/docs/?symbol=A/CN.4/L.870. 5 Supra, note 2.

ICJ

Current and Pending Environment-related Cases

The UN’s principal judicial organ, the International Final Order: Costa Rica v. Nicaragua and Nicaragua Court of Justice (ICJ), is mandated to settle disputes v. Costa Rica among States, and, on occasion, to issue advisory On 16 December 2015, the Court issued final orders opinions “on legal questions referred to it by duly in the joined cases formally entitled Certain Activities authorized United Nations organs and agencies of the carried out by Nicaragua in the Border Area (Costa Rica system”.1 The Court’s 15 judges are elected by the UN v. Nicaragua)5 and Construction of a Road in Costa Rica General Assembly and Security Council. The ICJ’s along the San Juan River (Nicaragua v. Costa Rica).6 authority and jurisdiction is founded on the primary The Solomon-like conclusion of the cases was two-fold. documents establishing the UN.2 AUTHORFirstly, COPY it held that Nicaragua’s dredging of the San Juan Environmental Policy and Law attempts to report River was a violation of Costa Rica’s territorial sovereignty all major environmental decisions of the ICJ. Thus, and navigational rights (as well as violating the Court’s this report includes a description of the Court’s final provisional measures), but did not also amount to a decision in the intertwined Costa Rica v. Nicaragua violation of substantive environmental obligations, and thus and Nicaragua v. Costa Rica cases. In addition, in the did not give rise to an obligation to pay Costa Rica’s costs interim between such reports, it sometimes (as in this of bringing the action. Secondly, however, it also found that report) also provides a summary of the status of currently Costa Rica’s failure to conduct an environmental impact pending cases.3 assessment (EIA) in connection with its construction of a road along that river was, in turn, a violation of its Judgements and Preliminary Decisions obligation, but again found that this violation did not breach The ICJ has issued only one substantive judgement and substantive environmental obligations. order on environmental matters in recent months – in the related cases of Costa Rica v. Nicaragua and Nicaragua Summary of the Procedural History v. Costa Rica.4 In addition, it is currently deliberating or In brief, the original proceedings were instituted by a has recently decided a number of preliminary questions in filing (of Costa Rica, alleging that Nicaragua’s dredging such cases. Although styled as “preliminary” because they of and military construction near the river violated Costa raise questions regarding whether the Court may continue Rica’s territorial sovereignty) in November 2010. The to consider the case, many of these decisions involve original allegation was relatively simple – a claim that substantive issues of importance. Like all Judgments of the Nicaragua had effectively invaded Costa Rica. In hopes Court, these decisions on preliminary matters have binding of stopping the continuation and extension of that alleged force and are not subject to appeal. invasion, Costa Rica asked the Court to order provisional

0378-777X/15/$27.50 © 2016 IOS Press Environmental Policy and Law, 46/2 (2016) 121 measures, restraining further action by Nicaragua in the an obligation to notify and consult under the Ramsar disputed area. This request was granted in March 2011. Convention,11 in connection with dredging that might have Later that year, Nicaragua instituted the second case, such an impact. The second case alleged that Costa Rica’s alleging Costa Rica’s failure to conduct an EIA on its road-building activities along the river were similarly road construction. In April 2012, the court issued an order potential sources of impact on the river, on Nicaragua’s joining the cases, in recognition of the fact that the second wetlands and on other nearby areas in Nicaragua. would almost certainly not have been filed were it not for Not all of the Court’s decisions were unanimous. In a the existence of the first case and provisional measures. In few of its conclusions, two, three or four of the 16 judges November of that year, the provisional measures order was voted against the majority on a few points. Thus, minority formally reasserted and extended, and further provisional opinions and responses thereto have been posted on some measures issued to forestall further road work by Costa of the questions addressed.12 Rica, pending issuance of the Court’s judgement. Public hearings were not held until April–May 2015. Failure to Undertake an EIA or Other Notification/ Consultation History of the Underlying Dispute With regard to Costa Rica’s allegation that Nicaragua There has long been some dispute between these two should have conducted an EIA before dredging, the court countries regarding sovereignty over the land between rather summarily found that the activity posed no risk that the two forks of the San Juan River (known as the “Lower was significant enough to give rise to such a duty: San Juan” river and the “Colorado River”). That area is Having examined the evidence in the case file, including sometimes referred to as “Isla Calero”, and is near two the reports submitted and testimony given by experts wetlands of international importance, one in each country.7 called by both Parties, the Court finds that the dredging Sovereignty over the area has been the subject of an 1858 programme planned in 2006 was not such as to give treaty, and numerous outstanding questions were resolved rise to a risk of significant transboundary harm, either in an 1888 arbitration, which purported to settle these with respect to the flow of the Colorado River or to questions, as well as a variety of later decisions.8 Costa Rica’s wetland. In light of the absence of risk Possibly predictably, in December 2010, both of significant transboundary harm, Nicaragua was countries began activities within the disputed area, which not required to carry out an environmental impact they claim are within their sovereign rights – Nicaragua assessment.13 began dredging an artificial channel, which it claimed was only on Nicaraguan territory, and Costa Rica began This lack of specificity does little to aid future road construction on its territory along the border, having developers, particularly given the volume of material adopted an Executive Decree declaring that this action was provided to the court. As noted below, it came to a taken as a result of a state of emergency in the border area. comparable decision on the post hoc question – i.e., Costa Rica maintained that this decree operated to exempt whether the dredging programme did in fact cause harm it from the obligation to conduct an environmental impact to the wetland or reduce the flow of the river. Cynics assessment before constructing the road. have suggested that the court did not provide more detail, because it did not really have the scientific understanding Primary Decisions necessary to do so. Such decisions have been singled out The Parties (and the Court) agreed AUTHORthat the Court’s in the pastCOPY as potential justifications for the establishment jurisdiction in this matter arose out of Article XXXI of the of “environmental courts”, specifically qualified to address 1948 Pact of Bogotá,9 coupled with the Parties’ declarations this type of technical issue. recognising the ICJ’s compulsory jurisdiction over such In the other case, however, the court was more disputes.10 Thus, the direct precedential value of the forthcoming on the non-scientific aspects of Nicaragua’s decision is rather limited (the Pact is geographically limited assertion that Costa Rica’s actions necessitated an EIA, and and was ratified by only 13 Parties). In addition, much was also generally more supportive of the EIA concept: of the decision turns on the existing descriptions of the [A] State’s obligation to exercise due diligence in adjudicated border between the two countries – again a fact- preventing significant transboundary harm requires based analysis that is not likely to be repeated. As to these that State to ascertain whether there is a risk of issues, the court’s interpretation of the existing instruments significant transboundary harm prior to undertaking led it to conclude that Costa Rica had sovereignty over the an activity having the potential adversely to affect disputed territory. the environment of another State. .... In evaluating From EPL’s perspective, the more important aspects of whether, as of the end of 2010, the construction of the the two cases are their environmental elements – elements road posed a risk of significant transboundary harm, which may have been perceived as secondary, or even the Court … notes that… the scale of the road project minor, by the persons or entities who decided to bring and/ was substantial [–] nearly 160km long, running along or continue the two actions. In the first case (Costa Rica v. the river for 108.2km…. Approximately half of that Nicaragua), the primary environmental concern related to stretch is completely new construction. Secondly, the potential impact of Nicaragua’s dredging activities on … any harm caused by the road to the surrounding Costa Rica’s protected wetland of international importance. environment could easily affect the river, and therefore Connected to this, Costa Rica alleged that Nicaragua had Nicaragua’s territory. … Another relevant factor

in assessing the likelihood of sedimentation due to Substantive Liability erosion …. The possibility of natural disasters in the As it had done with regard to the EIA discussion, the area caused by adverse events such as hurricanes, Court rather summarily stated that “Costa Rica has not tropical storms and earthquakes, which would increase provided any convincing evidence that sediments dredged the risk of sediment erosion, must equally be taken into from the river were deposited on its right bank”. Its only consideration. Thirdly, the geographic conditions of detail on this issue was a causal statement: the river basin where the road was to be situated must Costa Rica did adduce evidence indicating a significant be taken into account. The road would pass through a reduction in flow … between January 2011 and October wetland of international importance … and be located 2014. However, the Court considers that a causal link in close proximity to another protected wetland…. between this reduction and Nicaragua’s dredging The presence of Ramsar protected sites heightens the programme has not been established. As Costa Rica risk of significant damage because it denotes that the admits, other factors may be relevant to the decrease receiving environment is particularly sensitive. The in flow, most notably the relatively small amount of principal harm that could arise was the possible large rainfall in the relevant period.16 deposition of sediment from the road, with resulting risks to the ecology and water quality of the river, as It combined these to come to a scientific conclusion on well as morphological changes.14 the basis of a legal causation argument, with no scientific justification: On the basis of these factors, it concluded “that the In any event, the diversion of water due to the dredging construction of the road by Costa Rica carried a risk of … is far from seriously impairing navigation … or significant transboundary harm [and that] the threshold otherwise causing harm to Costa Rica…. The Court for triggering the obligation to evaluate the environmental therefore concludes that the available evidence does impact of the road project was met”.15 It did not accept not show that Nicaragua breached its obligations by Costa Rica’s claim that the claimed emergency existed engaging in dredging activities in the Lower San Juan and was sufficient to justify constructing the road without River.17 an EIA. It dismissed Costa Rica’s claim that its post hoc studies of the environmental impacts of the road as In Nicaragua v. Costa Rica, once again, the Court’s constructed effectively satisfied the ex ante requirements substantive evaluation of the possibility of environmental embodied in EIA. harm is stated rather airily, although it does mention Both cases had also included an allegation that the the need for scientific information. Noting that widely respective respondents had breached an obligation to notify disparate expert opinions and data were submitted, the and consult with the Party filing the action. InCosta Rica v. court simply concluded that it saw “no need to go into a Nicaragua, regarding this allegation, the Court found that, detailed examination of the scientific and technical validity since Nicaragua was not under an obligation to carry out of the different estimates put forward by the Parties’ an environmental impact assessment given the absence of experts”. Instead it accepted Costa Rica’s calculation of risk of significant transboundary harm, it was not required the amount of sediment (“at most 2 percent of the river’s to notify, and consult with, Costa Rica. The Court also total load”)18 and concluded, without explanation, that this declared that it was not convinced that Nicaragua had is an insignificant amount: breached any obligation to notify and AUTHORconsult with Costa TheCOPY Court notes that the total sediment load of the San Rica, based on the Parties’ obligations under either the Juan River has not been established.…[T]aking into Ramsar Convention or the Convention for the Conservation account the estimates provided by the experts of the of Biodiversity and Protection of Priority Wildlife Areas amount of sediment in the river due to the construction in Central America. of the road and of the total sediment load of the In the other case, however, the court rejected Nicaragua’s San Juan River, the Court observes that the road is “sauce for the goose” assertion that Costa Rica had an contributing at most 2 percent of the river’s total load. obligation to notify and consult with Nicaragua, based It considers that significant harm cannot be inferred on previous rulings that “if the environmental impact therefrom, particularly taking into account the high assessment confirms the existence of a risk of significant natural variability in the river’s sediment loads. transboundary harm, the State planning the activity is required to notify, and consult with, the potentially affected It again provides greater detail on the more State, where that is necessary to determine the appropriate conventionally “legal” question of the causal relationship measures to prevent or mitigate that risk”. As it had done between the amount of sediment and the road construction: with Costa Rica’s reciprocal argument, it dismissed this In the Court’s view, the only measurements that are claim, noting first that no EIA has been conducted, so before it, … do not support Nicaragua’s claim that EIA conclusion could not be the basis of a notify-and- sediment eroded from the road has had a significant consult obligation. It went on, once again mirroring its impact on sediment concentrations in the river. A determination against Costa Rica’s assertion in the other comparison of the measurements taken in 2011, when case, to find that “it is not established that Costa Rica most of the road had not yet been built, and in 2012, violated any obligation to notify or consult pursuant to the when construction works were under way, shows that 1858 Treaty or the Ramsar Convention”. sediment levels in the river are variable, and that

tributaries … are major sources of sediment. However, objections in the two cases have been heard and considered the data do not indicate a significant impact on sediment together, and the judgements on these objections in the two levels from the construction of the road…. In light of cases were delivered consecutively. the above, the Court concludes that Nicaragua has not established that the fact that sediment concentrations in Case Summaries the river increased as a result of the construction of the In brief, these cases both address the need for road in and of itself caused significant transboundary delimitation of the boundary of the continental shelf beyond harm.19 200 nautical miles from baselines (OCS) as between Nicaragua and Colombia. The Maritime Jurisdiction The Court dismissed all other claims by Nicaragua, case would appear to be a relatively common type of including its claims that Costa Rica’s dumping of road maritime delimitation action, were it not for the fact that sediment in the river deltas constituted a violation of Colombia is not a Party to the UN Convention on the Law Nicaragua’s territorial integrity over the river and that of the Sea (UNCLOS), and rather aggressively opposes reparations were needed to address the harm suffered. its application. Both cases were instituted in 2013. The Maritime Remedy/Reparation Jurisdiction case was filed first, in September. It arose from Lest the reader take away the conclusion that this a previous ICJ judgment, issued on 19 November 2012 in decision did not provide positive results for international the Case Concerning the Territorial and Maritime Dispute environmental law, however, it is important to note the (Nicaragua v. Colombia) (herein the “Territorial Limits decision’s comments on reparation. Although it did not case”). The basic legal purpose underlying the filing of specifically find a breach of Nicaragua’s environmental the Maritime Jurisdiction case is explained by this finding obligations, the Court’s finding in favour of Costa Rica – issued by the Court in its Judgement on the Territorial that Nicaragua had breached Costa Rica’s sovereignty and Limits case: had violated the ICJ’s provisional measures – did include the Court considers that [in its submissions in the some possibility for addressing/remedying any impacts or Territorial Limits case] Nicaragua has not established harms to the wetlands. The final decision on Costa Rica that it has a continental margin that extends beyond mentioned reparation in a somewhat convoluted way. It 200 nautical miles from the baselines from which its began by stating that these declarations “provide adequate territorial sea is measured, and was therefore not then satisfaction for the non-material injury suffered” on this in a position to delimit the continental shelf as requested account. Later on, however, the final decision did state that by Nicaragua. “Costa Rica is entitled to receive compensation for the material damage caused by those breaches of obligations Accordingly, having focused its Territorial Limits by Nicaragua that have been ascertained by the Court”.20 arguments on the marine zone within the 200-nautical- Considering the nature and location of the activities giving mile (nm) boundary, Nicaragua brought the Maritime rise to the finding of a breach, this finding seems to award Jurisdiction case in order to obtain a ruling on the environmental damages. The importance of that finding, delimitation of that area. In its application, Nicaragua however, is somewhat diminished by the fact that the asks that the court also state “[t]he principles and rules of Court did not come to any decision on the amount of such international law that determine the rights and duties of reparations. Instead, it merely stated thatAUTHOR the two COPY States in relation to … the use of [OCS] resources, the relevant material damage and the amount of pending the delimitation of the boundary”. In addition, the compensation may be assessed by the Court only in case alleges some disputes relating to baselines. separate proceedings. The Court is of the opinion that Subsequently, on 26 November 2013, Nicaragua the Parties should engage in negotiation in order to instituted the Alleged Violations case, as a separate reach an agreement on these issues. However, if they proceeding, alleging that Colombia was violating fail to reach such an agreement within 12 months of Nicaragua’s sovereign rights within the 200-nm area as the date of the present Judgment, the Court will, at declared in the Territorial Limits Judgment, and that it was the request of either Party, determine the amount of also threatening to use force to implement those violations. compensation on the basis of further written pleadings limited to this issue.21 Preliminary Objections In both cases, Colombia’s preliminary objections Preliminary Matters: Nicaragua v. Colombia focus on jurisdictional matters, raising five objections to The current deliberations arise out of two cases filed by the Court’s jurisdiction in each case, one of which was Nicaragua: Question of the Delimitation of the Continental essentially identical in both cases. As possible evidence Shelf between Nicaragua and Colombia beyond 200 of the level of importance it placed on these objections, it nautical miles from the Nicaraguan Coast (Nicaragua is worth noting that Colombia’s two-volume submission v. Colombia)22 (herein the “Maritime Jurisdiction case”) was the approximate length of a historical novel – a grand and Alleged Violations of Sovereign Rights and Maritime total of 435 pages. In briefest summary the nine objections Spaces in the Caribbean Sea (Nicaragua v. Colombia)23 are as follows: (herein the “Alleged Violations case”). Although the • Ratione temporis. Colombia’s first objection alleged Court still considers them separate cases, the preliminary in both cases that the Pact of Bogotá could no longer

provide jurisdiction for the ICJ, following Colombia’s Chile has expressed interest in both cases, and the Court withdrawal from the Pact. Like the Territorial Limits has agreed to furnish it with copies of all pleadings and case before it, both of the current cases base the Court’s documents annexed in either case. jurisdiction on the Pact. On 27 November 2012, however, Colombia had given notice that it renounced Ruling on the Preliminary Objections the Pact of Bogotá. As a result, the Pact would only Shortly before this issue of EPL went to print, the Court remain in force for Colombia until 27 November issued judgements on the preliminary objections in both 2013. Nicaragua timed these two cases (especially the the Maritime Jurisdiction case24 and the Alleged Violations Alleged Violations case) so that they would still be case.25 Of the nine objections made in the two cases, the jurisdictionally justified by the Pact by virtue of being Court rejected five of them completely and three others filed before that latter date. Indeed, the second of them partially. It found that there was no need to even consider had been filed only one day before the Pact ceased the remaining one. Ultimately, the court concluded that it to apply to Colombia. With this objection, Colombia did, in fact, have jurisdiction to go forward with hearing raised an important point regarding the common some parts of each of the two cases. provision found in many conventions, that places a The Court’s unanimous rejection of the first objection buffer period between a country’s announcement of was relatively straightforward, and perhaps represents the its renunciation of a convention and the actual date on most important part of these decisions. It quickly disposed which the convention ceases to apply to that country; of the primary argument, by citing Article XXXI of the • Res Judicata. Among its objections in the Maritime Pact, which recognises the compulsory jurisdiction of the Jurisdiction case, Colombia alleges that Nicaragua is Court, “so long as the present Treaty is in force”, finding seeking a ruling on a matter that was previously and this a clear statement that “the date at which its jurisdiction explicitly decided by the Court in the Territorial Limits has to be established is the date on which the application case and on which a subsequent action is therefore is filed” – at which point in both cases, Colombia was still barred; included in the Pact. The court then turned to Colombia’s • Disguised appeal. Similarly, Colombia objects that assertion that a separate provision of the Pact would the Maritime Jurisdiction case is a disguised appeal produce a contrary result. On this point it examined from the Territorial Limits case, impermissible by Article LVI(2), which provides that “[t]he denunciation virtue of the fact that no appeal from ICJ judgements [of the Pact by a Party] shall have no effect with respect is permitted; to pending procedures initiated prior to the transmission of • No “continuing jurisdiction”. Colombia also suggested the particular notification” to assess Colombia’s claim that that Nicaragua might be considering that the Territorial this language must be read a contrario, as a contradiction Limits case was still effectively open. To combat such of the earlier clause. Thus, Colombia’s argument was that a claim it stated that the Territorial Limits judgement a case filed during the pendency of a withdrawal notice made no statements that could indicate that the Court should have no effect. Although recognising this as a game was asserting continuing jurisdiction over the matter. effort, the Court stated simply that this clause underscores • Failure to obtain a “recommendation” from the its holding that “it is not the denunciation per se that is Commission on the Limits of the Continental Shelf capable of having an effect upon the jurisdiction of the (CLCS). Colombia argues that Nicaragua’s Maritime Court under Article XXXI, but the termination of the treaty Jurisdiction requests are inadmissibleAUTHOR because (as betweenCOPY the denouncing State and the other parties) Nicaragua had not secured the CLCS’s recommendation which results from the denunciation”. regarding the establishment of the outer limits of its With regard to res judicata, the Court notes that the continental shelf; Maritime Jurisdiction case asks the Court to determine • No actual dispute. Colombia claims that there was, as “[t]he precise course of the maritime boundary between of the date of filing of the Alleged Violations case, no Nicaragua and Colombia in the areas of the continental existing dispute regarding the matters discussed therein shelf”. Noting that the Territorial Limits judgement (that is, that the violations had not yet occurred); specifically decided not to rule on the OCS, the Court found • Exhaustion of non-judicial avenues to settlement. it relatively easy to conclude that the issue, as raised in the Colombia alleged that, as of the date of filing of the current case, could not be considered res judicata. Alleged Violations case, Nicaragua was not able to The court applied similar reasoning and facts in its assert that the dispute could not be settled by diplomatic determination that the Maritime Jurisdiction case was means; neither a disguised appeal nor an attempt to assert continuing • Court lacks “inherent jurisdiction”. Colombia disputes jurisdiction over a case that has already been decided. In Nicaragua’s assertion that the matters addressed within the decision, it did not even make a formal decision on the the Alleged Violations case also fall within the ICJ’s continuing jurisdiction issue, finding that the basic facts “inherent jurisdiction” (and in fact alleges that the court giving rise to such an objection were not present. has no such jurisdiction); Regarding Nicaragua’s failure to obtain a CLCS • No enforcement jurisdiction. Colombia alleges that recommendation regarding the OCS before filing the action, the Alleged Violations case is essentially a request that the court specifically noted that the ICJ order compliance with the Territorial Limits the procedure before the CLCS relates to the delineation judgement. of the outer limits of the continental shelf, and hence

to the determination of the extent of the sea-bed under current Alleged Violations dispute, the case was not seeking national jurisdiction. It is distinct from the delimitation enforcement, but rather alleging violations of Colombia’s of the continental shelf, which is governed by Article obligations not to violate Nicaraguan jurisdiction. 83 of UNCLOS and affected by agreement between the Having dispensed with these objections, the case is now States concerned, or by recourse to dispute resolution ready to go forward. Colombia’s counter-memorial must procedures.26 be filed on or before 17 November of this year.

Finding that the delimitation of the OCS can be Other On-going Cases undertaken independently of a recommendation from the The Court’s list of active cases contains several with CLCS, the Court concluded that such a recommendation is environmental relevance. not a prerequisite to filing a request for OCS delimitation, in the case of Nicaragua’s first request to the Court. Its Somalia v. Kenya second request, however, called on the Court to determine In 2014, Somalia initiated proceedings in Maritime the rights and duties of the two States in relation to the area Delimitation in the Indian Ocean (Somalia v. Kenya).28 This of overlapping OCS claims, pending the delimitation of the is a maritime delimitation case, seeking delimitation of the OCS boundary. The Court found that this second request territorial sea, exclusive economic zone and continental could only be addressed (that is there would only be a clear shelf, under the UNCLOS, to which both countries dispute), once the CLCS procedures had been followed. are Parties. In addition to the UNCLOS jurisdiction, Accordingly, the Court upheld this objection with regard both countries have also previously filed declarations to Nicaragua’s second request only. recognising the ICJ’s compulsory jurisdiction. Its progress Regarding Colombia’s claim that there was no is stayed owing to preliminary objections as to jurisdiction actual dispute regarding the violations alleged in the which have been filed by Kenya, but are not yet posted on Alleged Violations case, as of the date of filing, the court the ICJ website. The Court has ordered that the Parties’ separately considered the two main allegations made by submissions on these objections be filed early this year. Nicaragua (i.e., that Colombia has violated Nicaragua’s sovereign rights in its maritime zones, and that Colombia The “Nuclear Cases” (Marshall Islands v. India), has breached its obligation not to use or threaten to use (Marshall Islands v. Pakistan) and (Marshall Islands force). Regarding the first of these, it notes that senior v. UK) officials of the two countries had expressed opposing As detailed in a previous report,29 in 2014, the Marshall views on these matters following the Territorial Limits Islands instituted several cases including Obligations judgement. Moreover, the Court pointed out that Colombia concerning Negotiations relating to Cessation of the had not rebutted Nicaragua’s allegation that Colombia had Nuclear Arms Race and to Nuclear Disarmament (Marshall continued to exercise jurisdiction in the areas in question, Islands v. India), Obligations concerning Negotiations following the Territorial Limits judgement, but that no relating to Cessation of the Nuclear Arms Race and to evidence exists to suggest that Colombia had breached the Nuclear Disarmament (Marshall Islands v. Pakistan), and obligations specified in Nicaragua’s second allegation. As Obligations concerning Negotiations relating to Cessation a result, it rejected this objection as to the first allegation, of the Nuclear Arms Race and to Nuclear Disarmament but upheld it as to the second. (Marshall Islands v. United Kingdom of Great Britain and The Court also rejected Colombia’sAUTHOR claim that Northern COPY Ireland). Although initially actions naming other Nicaragua did not demonstrate that the current claim countries had been filed, a range of initial jurisdictional “[could not] be settled by direct negotiations through the questions limited the Court’s ability to proceed with a usual diplomatic channels”, something that Colombia number of them, leaving only these three currently active. considered a prerequisite to any action under the Pact At base, all of these cases allege the defendant of Bogotá. The Court demonstrated its ability to look countries are not fulfilling their respective obligations beneath the surface statements of both countries’ heads of with respect to the cessation of the nuclear arms race at State that they were open to dialogue to settle the matter an early date and to nuclear disarmament. The particular diplomatically, noting that even in those statements, the jurisdictional status of the various countries – e.g., whether subject matter for negotiation was different from the they had ratified the Treaty on the Non-Proliferation of subject matter of the dispute. It went on to note that “there Nuclear Weapons (NPT)30 and whether they recognised is nothing in the case file to indicate that the Parties had the ICJ’s compulsory jurisdiction – renders each of contemplated or were in a position to hold negotiations these cases somewhat different from the others. India to settle the dispute in question”.27 For these reasons, it and Pakistan, which have not ratified the NPT, have rejected this objection. both agreed to the court’s compulsory jurisdiction. Both The Court did not feel it necessary to even consider the countries have objected to the jurisdiction of the Court “inherent jurisdiction” objection, since it found that each of in their respective cases. The UK, which is a party to the Nicaragua’s claims were also founded on other sources of NPT as well as having recognised the ICJ’s compulsory jurisdiction, which the court had already upheld. It similarly jurisdiction, has also submitted preliminary objections. rejected the objection that the case was a disguised request As a result, it too will have an extended period in which for enforcement of the Territorial Limits judgement, noting to argue those objections and, if the case continues, to that, although that judgement was clearly relevant to the submit its counter-memorial.

3 See, e.g., Young, T.R. 2004. “The Court’s Environmental Agenda”. EPL 44(5): In both cases, the respondent country’s preliminary 417–419. objections are apparently the same, although all that is 4 These cases were reviewed in EPL in the context of the Court’s ruling on currently available to this report is the bare summary. requests for provisional measures. Young, T.R. 2011. “Costa Rica v. Nicaragua: Provisional Relief Granted”. EPL 41(2): 66. Both apparently allege: 5 ICJ case no. 150. The Judgement and Case summary, as well as the Press • that the Court lacks jurisdiction over the claim; and Release describing this case and its outcome, are available at http://www.icj-cij. • that the claim is inadmissible. org/docket/index.php?p1=3&p2=3&code=crn&case=150&k=ec. 6 ICJ case no. 152. The Judgement and Case summary, as well as the Press Release describing this case and its outcome, are available at http://www.icj-cij. Although the public hearing of these matters is org/docket/index.php?p1=3&p2=3&case=152. Note that the two cases have never completed, the particulars of these objections are been formally joined – only heard and decided together – hence, although discussed in a single judgement, this case was separately decided from the case mentioned in not available online as of this writing, although it note 5. is clear that the Marshall Islands has opposed both 7 The Humedal Caribe Noreste in Costa Rica and the Refugio de Vida Silvestre objections.31 Río San Juan in Nicaragua. 8 In this context, the court cited the 1858 Treaty of Limits between these two parties, the 1888 Arbitral Award of United States President Grover Cleveland, which “confirmed Pending Cases with No Recent Activity the validity of the 1858 Treaty and settled other ‘points of doubtful interpretation’”, Two other cases with clear environmental connections the 1896 appointment of national demarcation commissions and the awards rendered remain on the ICJ’s list of “Pending Cases” although thereunder, as well as the ICJ’s 2009 Judgment in the Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), ICJ case no. 133. neither has seen any recent orders or legal activity. The 9 American Treaty on Pacific Settlement of 30 April 1948 (generally known as first of these is Maritime Delimitation in the Caribbean the “Pact of Bogotá”). Sea and the Pacific Ocean (Costa Rica v. Nicaragua), 10 Statute of the Court, supra, note 2, at Article 36, paras 2 and 5. 11 Convention on Wetlands of International Importance especially as Waterfowl another UNCLOS-based delimitation case, this time unique Habitat, adopted at Ramsar, Iran, on 2 February 1971. in that it addresses two bodies of water in the same case. 12 Separate opinions were submitted by Judges Owada, Cançado Trindade, As the deadline for Nicaragua’s counter-memorial was 15 Donoghue, Robinson, Bhandari, Gevorgian and Dugard, respectively; as well as a joint declaration by Judges Tomka, Greenwood, Sebutinde and Judge ad hoc Dugard December, it is probable that this case will be heard and and a separate declaration of Judge ad hoc Guillaume. (Regarding judges ad hoc, decided in 2016. under Article 31 of the Statute of the Court, if there is no judge on the Court of the The second such case is the Case Concerning the same nationality of a party, that party may choose an ad hoc judge to sit on that Gabčikovo-Nagymaros Project (Hungary/Slovakia), which case. Neither Costa Rica nor Nicaragua currently have a national on the ICJ bench). 13 ICJ. 6 December 2015. Judgement. Certain Activities Carried Out By was decided in 1997. The ICJ’s Annual Report to the UN Nicaragua in The Border Area (Costa Rica v. Nicaragua) and Construction of a General Assembly explains this case’s continuance on the Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica), at para. Pending list as follows: 105. 14 Ibid., paras 153–155. The Court delivered its judgment in the Case 15 Ibid., para. 156. Concerning the Gabčikovo-Nagymaros Project 16 Ibid., at para. 119. (Hungary/Slovakia) on 25 September 1997. The case 17 Ibid., at paras 119–120. 18 Ibid., at para. 186. nevertheless technically remains pending, given that, 19 Ibid., at paras 193–196. in September 1998, Slovakia filed a request for an 20 Ibid., at para. 142. additional judgment. Hungary filed a written statement 21 Ibid. 22 ICJ case no. 154. of its position on the request made by Slovakia within 23 ICJ case no. 155. the time limit of 7 December 1998 fixed by the President 24 ICJ. 17 March 2016. Judgement on Preliminary Objections. Question of the of the Court. The Parties have subsequently resumed Delimitation of the Continental Shelf Between Nicaragua and Colombia Beyond AUTHOR200 Nautical COPY Miles of the Nicaraguan Coast (Nicaragua v. Colombia). Accessible negotiations over the implementation of the 1997 online at http://www.icj-cij.org/homepage/. judgment and have informed the Court on a regular 25 ICJ. 17 March 2016. Judgement on Preliminary Objections. Alleged Violations basis of the progress made.32 of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia). Online at http://www.icj-cij.org/homepage/. 26 Supra, note 24, at para 112. Miscellaneous 27 Supra, note 25, at para 100. In preparing this update, the author was somewhat 28 ICJ case no. 161. amused to read the ICJ press release, announcing that the 29 See supra, note 3. 33 30 The Marshall Islands has stated that the principles enshrined in the NPT also Court had opened a Twitter account. Readers who are exist separately “under customary international law” and thereby apply to all States, interested in tweeting the Court or following it on Twitter such that “by engaging in conduct that directly conflicts with the obligations of are encouraged to do so via its account name: @CIJ_ICJ. nuclear disarmament and cessation of the nuclear arms race at an early date, [those countries named that are not NPT parties] have breached and continue to breach the [TRY] legal duty to perform obligations under customary international law in good faith”. 31 As described in the Court’s Press Release No. 2016/7, 16 March 2016. “Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race Notes and to Nuclear Disarmament (Marshall Islands v. United Kingdom): Conclusion of 1 ICJ website at http://www.icj-cij.org/homepage/index.php. The quoted public hearings on the preliminary objections raised by the United Kingdom”; and language is included in nearly every ICJ Press release. Press Release No. 2016/6, 16 March 2016. “Obligations concerning Negotiations 2 Specifically, the Charter of the United Nations and the Statute of the Court, relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament which is annexed to the Charter. These are supplemented by the Rules of Court and (Marshall Islands v. India): Conclusion of public hearings on the question of Practice Directions, and by the resolution concerning the internal judicial practice jurisdiction”. Both press releases are available online at http://www.icj-cij.org/ of the Court. All of these are accessible at http://www.icj-cij.org/documents/index. docket/files/160/18968.pdf; and http://www.icj-cij.org/docket/files/158/18954.pdf. php?p1=4. Presently, 193 countries are Parties to the Statute of the Court, and 72 32 Supra, note 2, at 7, footnote 1. have formally submitted to the compulsory jurisdiction of the court. ICJ. 2015. 33 Press Release Unofficial No. 2015/28. 5 November 2015. “Report of the International Court of Justice: 1 August 2014–31 July 2015”. UN General Assembly Doc. A/70/4. Online at http://www.icj-cij.org/court/en/reports/ report_2014-2015.pdf.

WHO/FAO/UNEP Exposure to Lead through Ammunition – Need to Revise Strategies – by Vernon G. Thomas* and Raimon Guitart**

Lead is among the most troublesome toxic metals of the potential for negative human health effects from for humans and the environment, based on its global frequent consumption of game killed with lead ammunition distribution, abundance and effects on the body. Absorbed and the advice from three national agencies responsible lead is cytotoxic, neurotoxic and genotoxic.1 A safety for food safety.18 threshold for lead in the bloodstream has not been The UN agencies and other national and supranational established – neither for humans,2 nor, presumably, for agencies have segregated human and environmental/ other animal species.3 Research in the last 10–15 years wildlife concerns about lead pollution and toxicity.19 has emphasised the deleterious impacts of low-level lead Responsibility for addressing exposure from lead exposure on the developing nervous system of children and ammunition has fallen, largely, to wildlife management their linkage to later behavioural effects.4 The relationship agencies because wildlife species appeared to be the earliest between blood lead levels and IQ indicates an even greater victims of lead exposure.20 Advances in regulating the use relative effect at lower lead concentrations.5 The social of lead ammunition in hunting and shooting are few, with costs of the effects of lead exposure are high,6 especially in the exception of Denmark, the Netherlands and the US state low and middle-income nations.7 They arise from declines of California, and wetland hunting in some countries.21 in human IQ associated with early lead exposure8 and their This is so, despite the availability of comparably-priced correlations with later anti-social behaviours.9 lead-free substitutes, the realisation of the benefits of using The World Health Organization (WHO), the United lead-free ammunition,22 and a global recognition of the Nations Environment Programme (UNEP) and the UN problem.23 Research indicates that human exposure to lead Food and Agriculture Organization (FAO) have identified from shot game meat24 and contamination of soil and water lead and lead compounds in the human environment as by decades of accumulated spent lead shot25 are problems toxic substances that warrant reduction. WHO and UNEP to be addressed by agencies that have a greater regulatory have developed strategy documents which identify the capacity than most wildlife management departments, anthropogenic sources of lead and how to reduce human especially at national and international levels. exposure.10 These documents list the principal sources of The limitations of the lead reduction strategies adopted lead in the human environment as gasoline, paints/glazes, by UNEP, WHO and FAO are not the products of a dearth glass, batteries and solders, and the incidental lead in of scientific information. There is a clear international drinking water and food.11 In addition to these, however, scientific consensus on lead exposure and toxicity.26 many tens of thousands of tonnes of metallic lead shot Rather, they stem from failures to link common issues of and lead bullets are released into the globalAUTHOR environment human COPYand environmental health and to incorporate new each year by recreational hunters and shooters.12 The vast understanding into revised strategies. This paper identifies majority of this ammunition is never reclaimed.13 The areas in which WHO, UNEP and FAO could promote deleterious impacts of spent ammunition on wildlife are a global reduction of lead use in hunting and outdoor well documented.14 Animals poisoned by ingested lead shot shooting to enhance the health of both humans and wildlife. and animals killed by lead shot and rifle bullets retain lead in the carcass which exposes consumers of game meat to Methodology appreciable risk.15 This problem is especially important for This paper is derived from the scientific literature on the subsistence hunting communities (who may derive much effects that lead from discharged lead-based ammunition of their dietary protein from shot game) and for others who may have on humans, wildlife and the environment, and consume game by choice.16 Pregnant and lactating women the operating practices of WHO, FAO and UNEP regarding who consume much game meat are particularly vulnerable lead reduction in the human environment. It presents new because lead traverses the placenta and is later mobilised findings indicating potential detrimental health impacts into breast milk.17 Lead exposure continues when their from the lead fragments in ingested game meats consumed children are raised on game meat. These risks to humans by humans.27 from spent-lead hunting ammunition are not addressed by WHO, UNEP and FAO, and are not part of their operating The Regulation of Lead-based Ammunition policies on lead abatement. This is despite the awareness and Lead in Food In 2010, WHO28 listed a series of international * Department of Integrative Biology, College of Biological Science, University of Guelph, Canada. agreements that collectively call for national efforts to ** Laboratory of Toxicology, Faculty of Veterinary Sciences, Universitat reduce human exposure to lead. None of these, however, Autònoma de Barcelona, Spain. refers to remnants of lead ammunition in food. Since 1991,

0378-777X/15/$27.50 © 2016 IOS Press 128 Environmental Policy and Law, 46/2 (2016) a growing number of countries have banned lead gunshot parallels WHO’s, identifying lead exposure as a high- for hunting over wetlands and some (e.g., Denmark, the priority issue.43 In particular, the Convention on the Netherlands) over all habitat types, all to prevent lead Conservation of Migratory Species of Wild Animals poisoning of birds. In 2019, California will ban the use (CMS), adopted under UNEP’s auspices, was the source of all types of lead hunting ammunition (i.e., gunshot and of the African-Eurasian Waterbird Agreement (AEWA). bullets) under Assembly Bill 711, and will be the first to AEWA’s Parties have repeatedly called for a reduction in do so.29 This regulation is predicated on protecting wildlife hunters’ use of lead ammunition.44 Although the focus of from lead exposure and is not predicated on the health of this effort is on wild species conservation, its implications humans who eat game. Since 2006, several German states extend to human health from wild game consumption. The have investigated the experimental use of lead-free rifle 11th Meeting of the Conference of the Parties to CMS in ammunition for hunting,30 largely because of the poisoning of 2014 adopted Resolution 11.15 on Preventing Poisoning eagles (Haliaeetus albicilla) that ingest lead fragments from of Migratory Birds and its Guidelines, which recommend discarded offal,31 but also out of concerns for human health. phasing out all lead ammunition use in all habitats within Hunted game meat is sold legally throughout Europe three years.45 and is a significant contributor to rural economies.32 UNEP is clearly aware of the environmental lead Although the science on the toxicity of lead at low contamination created by recreational shooting.46 UNEP exposure levels is compelling and agreed upon by all is partnered with the International Olympic Committee major authorities, no European regulations have been (IOC) and is formally represented on the IOC Sport and developed at national or EU level to protect consumers Environment Commission to ensure Olympic events are from lead in game meats. The European Food Safety conducted sustainably. The IOC administers Olympic Authority (EFSA) Panel concluded in 201033 that the shooting through the International Shooting Sport Provisional Tolerable Weekly Intake (PTWI) of 25 µg of Federation (ISSF), whose regulations limit competitors lead per kilogram body weight/week was inappropriate to the use of lead ammunition only.47 Both the IOC and because there was no evidence of a threshold for critical the ISSF refuse to authorise the use of lead-free shot in lead-induced effects. In 2010, WHO also withdrew Olympic qualifying and competitive shooting,48 despite the its PTWI for lead at 25 µg/kg body weight/week. The evidence of massive soil and water pollution that has been Scientific Committee of the Spanish Agency for Food presented to them and despite an explicit policy analysis Safety and Nutrition (AESAN),34 although aware of showing how the transition could be achieved by these the contamination of game shot with lead ammunition, organisations.49 The IOC contends that the amendment only provides consumer advice on lead exposure from of these regulations is the prerogative of the ISSF, not foods. There appears to be little broad-scale international the IOC.50 It ignores the fact that this environmental lead awareness of the issue, whether among government pollution is occurring contrary to Rule 2 of the Olympic agencies, medical practitioners, or the public. For Charter, which defines environment as the third dimension example, food safety advice published by the UK Food of Olympism. UNEP’s representation on the IOC Sport and Standards Agency in 2012 was not included in National Environment Commission has not dealt with this issue, Health Service advice on a healthy diet in pregnancy, as citing a lack of capacity.51 contained in guidelines revised in 2013 and 2015.35 The International Council for Game and Wildlife Conservation (known as the CIC) represents global sport Current WHO, UNEP and FAOAUTHOR Lead hunting COPY and is partnered with UNEP, FAO and the UN Reduction Strategies Educational, Cultural and Scientific Organization to WHO emphasises reducing exposure to lead from promote its international goals.52 While trophy hunters often paint and gasoline because they are the major global do not eat any of the meat that they kill, such meat is often sources of lead in humans.36 WHO recognises that lead made available for consumption by local residents, who in food constitutes a source of lead exposure to humans,37 may be lead-exposed in this way.53 Millions of European but has not identified lead from ammunition as a global shot game animals taken by sport hunters in Africa are source in hunter-killed game. The risks from such ingested marketed annually.54 The CIC, aware of the risks to humans lead have been well demonstrated for Europeans and and wildlife posed by spent lead ammunition, sponsored North Americans,38 and the indigenous populations of an international symposium of non-governmental experts Canada39 and Greenland.40 Research has also revealed in 2009 to examine lead ammunition use in hunting and to associations between human blood lead levels and hunted provide recommendations to the CIC: game consumption in communities not usually regarded We recommend that a Road Map be developed by the as subsistence hunting communities.41 Lindboe et al.42 CIC in close collaboration with other stakeholders to reported that the regular consumption of meat from implement the phase-in of non-toxic ammunition for Norwegian animals shot with lead-based bullets is likely all hunting and shooting as soon as practicable. This to exceed the former WHO PTWI guidelines and would roadmap should include clear objectives with timelines. provide a significant component of the total lead exposure (Article 6) of the consumer of such meat. UNEP’s mandate to address natural environments and is clearly more extensive than that of WHO. That said, We find that voluntary or partial restrictions on the use however, UNEP’s emphasis on lead reduction largely of lead ammunition have been largely ineffective and

that national and international legislation is required in would apply mainly to lead contamination of soils, water order to ensure effective compliance and to create the and wildlife, the action would facilitate efforts to reduce assured market for non-toxic ammunition. (Article 8)55 lead ammunition use in hunting game.63 WHO and FAO could influence the European The CIC has yet to accept these recommendations, Commission to undertake progressive action on further despite the fact that the North American and European lead reduction in foods. The European Commission, under arms industry has developed effective non-toxic substitutes Commission Regulation 1881/2006, sets the maximum for lead ammunition, which pose no penalty on their users permissible level of lead in meat from livestock and poultry in terms of economic impact or efficacy as ammunition.56 at 0.1 mg Pb/kg.64 However, no comparable level of lead UNEP’s formal association with the IOC and the has been set for wild game meats produced, or imported CIC reflects policy inconsistencies regarding use of lead into, the European community. Data from Canada, Norway, ammunition. UNEP’s policy is inconsistent with its own Poland and Sweden65 indicate that meat from hunter-killed Polluter Pays Principle and the Precautionary Principle. deer and wild boar (Sus scrofa) contain metallic lead levels While UNEP promotes global anthropogenic lead use that far exceed the criterion of 0.1 mg Pb/kg of body weight, reduction, its IOC and CIC partners endorse continued use especially if the meat is prepared by mincing. As noted, a of lead ammunition for recreational hunting and shooting. large number (millions) of game animals that are shot by This position of the IOC and CIC also runs counter to the hunters in Europe each year with lead-based ammunition UNEP/CMS Resolution to end all types of lead ammunition enter the marketed human food chain.66 This constitutes use by 2017.57 The same policy inconsistency applies to a major unregulated source of lead to the general public. FAO and its partnership with the CIC. FAO explicitly British, German, Norwegian, Spanish and Swedish national supports measures to reduce dietary exposure to lead, food agencies currently provide advisories to the public especially in populations with prolonged exposure to higher (especially pregnant women and children) regarding lead dietary lead intake.58 This policy could apply to any humans in wild game meats,67 but these advisories are not based who consume shot game frequently, whether recreational on any regulation. Advice provided by WHO and FAO to or subsistence hunters. the European Commission on how to amend Commission Regulation 1881/2006 would show leadership in remedying Enhancing the Lead Reduction Strategies this food safety deficiency. Should Commission Regulation Consistency in UN agencies’ concerns about 1881/2006 be amended appropriately so that the standards anthropogenic lead exposure requires equal concern about for domesticated and wild game meats were the same, it the totally preventable lead exposure from ammunition. would apply to all 27 EU member nations and could apply WHO, UNEP and FAO are capable of raising awareness to all wild game meats traded within and imported into and influencing national policy and law. Discrete user the EU. This single, regulatory step would affect the type constituencies have been identified. Effective non-toxic of ammunition used to harvest wild animals over a wide substitutes are available internationally and pose no extra geographic area, and its economic cost would be minimal.68 costs to users.59 Use of such lead-free ammunition would An alternative (bottom-up) approach to resolving result in an immediate cessation of lead contamination this issue could be through educational and awareness of game meat and lead exposure in wild scavengers and programmes directed at the hunting public. There is no predators. This is the dual benefit of the transition.60 published evidence, however, that this approach has However, lead-shot pellets already AUTHORreleased to the been broadlyCOPY successful. Indeed, Stroud69 and Cromie et environment may subject birds that ingest them to further al.70 attest to the fact that hunter compliance with legal lead exposure for decades to come, also affecting those requirements to use lead-free shot is very low amongst humans who feed on them.61 The quantity and quality the relatively well informed UK hunter population. They of science does not retard this transition: rather, it is a also note a marked resistance from hunting communities socio-political issue, as it is with human lead exposure.62 to current proposals to reduce lead ammunition use. Revision of WHO, UNEP and FAO policy on this aspect of Resistance to change is also notable among European lead reduction would pose no costs to these agencies and makers of hunting ammunition, despite the fact that could be accomplished within their existing capacities. they already market non-toxic substitutes for lead-based A revised WHO policy would require explicit ammunition. The Association of European Manufacturers of recognition of lead fragments in game foods as an important Sporting Ammunition (AFEMS) endorses the use of lead- source of human lead exposure. FAO could act on its stated based ammunition,71 stating that “[a]ll European industries policy of encouraging reductions of levels of lead in food using metallic lead, including ours” are attempting to reverse by requesting its CIC partner to act on prior resolutions the decision to classify metallic lead as a toxic substance. and to advise governments to regulate use of lead-free Similarly, in a press release from October 2015, the AFEMS ammunition. UNEP could revise its lead policy on several concluded72 that “metallic lead in ammunition has no fronts. First, it could act with FAO and the CIC to achieve significant impact on human health and the environment as a global consensus on lead reduction in hunting to protect compared to other forms of lead. Lead fragments in game all consumers of game meat and wildlife. Second, UNEP meat, if ingested, cannot be directly absorbed by the human could use its role in the IOC to address the use of lead in body because they are in metallic form”. Olympic sport shooting, consistent with its stated policies This conclusion deliberately contradicts the body of on other forms of lead reduction. Although this action published scientific research indicating that ingested lead

Weiss, B. 2006. “A rationale for lowering the blood lead action level from 10 to fragments from spent ammunition pose toxic risks to 2 µg/dL”. Neurotoxicology 27: 693–701; and Wigle, D.T. and Lanphear, B.P. 2005. both wildlife and humans, and deliberately overlooks the “Human health risks from low-level environmental exposures: no apparent safety scientific fact that ingested metallic lead is solubilised in the thresholds”. PLoS Medicine 2(12): e350. 3 Burger, J. and Gochfeld, M. 2005. “Effects of lead on learning in herring gulls: foregut of humans and wildlife species and then, following an avian wildlife model for neurobehavioral deficits”.Neurotoxicology 26: 615–624. absorption, exerts its toxic effect on all major body systems. 4 Chiodo, L.M., Jacobson, S.W. and Jacobson, J.L. 2004. “Neurodevelopmental In the face of this opposition, it is understandable why effects of postnatal lead exposure at very low levels”. Neurotoxicology and Teratology 26: 359–371; Chiodo, L.M., Covington, C., Sokol, R.J., Hannigan, J.H., voluntary measures to adopt lead-free ammunition do not Jannise, J., Ager, J. et al. 2007. “Blood lead levels and specific attention effects in create strong market demand for lead substitutes,73 and young children”. Neurotoxicology and Teratology 29: 538–546; and see Bellinger, even less incentive for industry to make and distribute supra, note 1. 5 European Food Safety Authority (EFSA) Panel on Contaminants in the Food these products. The UN agencies could provide leadership Chain (CONTAM). 2010. “Scientific Opinion on Lead in Food”. EFSA Journal on this issue to governments, as they are doing for other 8(4):1570. Available at http://www.efsa.europa.eu/de/search/doc/1570.pdf. major anthropogenic sources of lead. 6 Bierkens, J., Buekers, J., van Holderbeke, M. and Torfs, R. 2012. “Health impact assessment and monetary valuation of IQ loss in pre-school children due to Lead exposure affects humans from conception to lead exposure through locally produced food”. Science of the Total Environment adulthood. Preventing exposure in humans and wildlife is 414: 90–97. the most practicable solution, because substitutes exist and 7 Attina, T.M. and Trasande, L. 2013. “Economic costs of childhood lead exposure in low- and middle-income countries”. Environmental Health Perspectives any costs are internalised among shooters. The transition 121: 1097–1102. to lead-free substitutes is then a very cost-effective 8 Schwartz, B.S., Lee, B.K., Bandeen-Roche, K., Stewart, W., Bolla, K., Links, J. measure. Meyer et al.74 detailed three strategies as the et al. 2005. “Occupational lead exposure and longitudinal decline in neurobehavioral best for reducing human exposure. For lead ammunition test scores”. Epidemiology 16: 106–113. 9 Bellinger, D.C. 2008. “Neurological and behavioral consequences of childhood use, two strategies (identification of sources and control lead exposure”. PLoS Medicine 5(5): e115; and Wright, J.P., Boisvert, D. and Vaske, of sources by using lead substitutes) already exist. Only J. 2009. “Blood lead levels in early children predict adult psychopathy”. Youth monitoring exposure remains. That could be accomplished Violence and Juvenile Justice 7(3): 208–222. 10 FAO. 2010. Joint FAO/WHO Expert Committee on Food Additives. JECFA/73/ for marketed game meat by new regulations stipulating the SC. Geneva: Food and Agriculture Organization of the United Nations; Fewtrell, maximum allowable amount of lead in meats, processed L., Kaufmann, R. and Prüss-Üstün, A. 2003. “Assessing the environmental burden meats and offal. Regulated use of lead-free ammunition by of disease at national and local level”. WHO Environmental Burden of Disease recreational and subsistence hunters would complement Series, No. 2. Geneva: World Health Organization; UNEP. 2010. “Final Review of 75 Scientific Information on Lead”. Nairobi: United Nations Environment Programme, this strategy. Lanphear called for “[a] full scope of the Chemicals Branch, DTIE; WHO. 2009. “Global health risks: mortality and burden problem” to reduce further lead exposure, and regarded a of disease attributable to major risks”. Geneva: World Health Organization; WHO. global ban on the use of non-essential forms of lead as vital 2010. “Childhood Lead Poisoning”. Geneva: World Health Organization; WHO. 2011a. “Lead in Drinking-water: Background document for development of WHO to protect human and environmental health. By identifying Guidelines for Drinking-water Quality”. Geneva: World Health Organization; and potential roles of UN agencies in helping to reduce lead WHO. 2011b. “Evaluation of certain food additives and contaminants”. Seventy- ammunition use, this paper contributes to that scope and third Report of the Joint FAO/WHO Expert Committee on Food Additives. WHO 76 Technical Report Series No. 960. Geneva: World Health Organization. concurs with the views of Bellinger et al. 11 Levin, R., Brown, M.J., Kashtock, M.E., Jacobs, D.E., Whelan, E.A., Rodman, J. et al. 2008. “Lead exposure in U.S. children, 2008: implications for prevention”. Conclusions Environmental Health Perspectives 116: 1285–1293. 12 Hansen, E., Lassen, C. and Elbaek-Jørgensen, A. 2004. “Advantages and Lead exposure of humans and wildlife from lead drawbacks of restricting the marketing and use of lead in ammunition, fishing sinkers fragments in hunted game is both serious and preventable. and candle wicks”. Brussels: Enterprise Directorate-General, European Commission; WHO, UNEP and FAO could recognise this source and Thomas, V.G. and Guitart, R. 2010. “Limitations of European Union policy and AUTHORlaw for COPY regulating use of lead shot and sinkers: comparisons with North American of exposure, revise their strategies for lead reduction regulation”. Environmental Policy and Governance 20: 57–72. accordingly, then influence the policy of the CIC, national 13 Thomas, V.G. and Guitart, R. 2013. “Transition to non-toxic gunshot use governments and the European Commission on lead in Olympic shooting: policy implications for the IOC and UNEP in resolving an ammunition use and lead levels in game meats. UNEP could environmental problem”. AMBIO 42: 746–754. 14 Pain, D.J., Cromie, R. and Green, R.E. 2015. “Poisoning of birds and other assist in reducing the global release of lead in shooting by wildlife from ammunition-derived lead in the UK”. In: Delahay, R.J. and Spray, C.J. acting consistently with its own strategy for lead reduction (Eds) Proceedings of the Oxford Lead Symposium: Lead ammunition: understanding and minimizing the risks to human and environmental health. Oxford: University and by advising the IOC to act similarly. These actions could of Oxford, Edward Grey Institute. be achieved within their existing mandates and capacities. 15 Green, R.E. and Pain, D.J. 2012. “Potential health risks to adults and children in the UK from exposure to dietary lead in gamebirds shot with lead ammunition”. Acknowledgements. This study was financed by Food and Chemical Toxicology 50: 4180–4190; Guitart, R., Serratosa, J. and Thomas, V.G. 2002. “Lead-poisoned wildfowl in Spain: a significant threat for the personal resources of the authors. human consumers”. International Journal of Environmental Health Research Conflict of interest. The authors declare they have 12: 301–309; Johnson, C.K., Kelly, T.R. and Rideout, B.A. 2013. “Lead in no competing financial interests. ammunition: a persistent threat to health and conservation”. Ecohealth 10: 455–464; and Pain, D.J., Cromie, R.L., Newth, J., Brown, M.J., Crutcher, E., Hardman, P. et al. 2010. “Potential hazard to human health from exposure to fragments of lead bullets and shot in the tissues of game animals”. PLoS ONE 5(4): e10315. Notes 16 Bjerregaard, P., Johansen, P., Mulvad, G., Pedersen, H.S. and Hansen, 1 Bellinger, D.C. 2011. “The protean toxicities of lead: New chapters in a J.C. 2004. “Lead sources in human diet in Greenland”. Environmental Health familiar story”. International Journal of Environmental Research and Public Health Perspectives 112: 1496–1498; Lévesque, B., Duchesne, J.-F., Gariépy, C., Rhainds, 8: 2593–2628; Flora, G., Gupta, D. and Tiwari, A. 2012. “Toxicity of lead: a review M., Dumas, P. and Scheuhammer, A.M. 2003. “Monitoring of umbilical cord with recent updates”. Interdisciplinary Toxicology 5: 47–58; and Toscano, C.D. and blood lead levels and sources assessment among the Inuit”. Occupational and Guilarte, T.R. 2005. “Lead neurotoxicity: From exposure to molecular effects”. Environmental Medicine 60: 693–695; Tsuji, L.J.S., Wainman, B.C., Martin, I.D., Brain Research Reviews 49: 529–554. Sutherland, C., Weber, J.-P., Dumas, P. and Nieboer, E. 2008. “The identification 2 Bellinger, D.C. 2008. “Very low lead exposures and children’s of lead ammunition as a source of lead exposure in First Nations: the use of lead neurodevelopment”. Current Opinion in Pediatrics 20: 172–177; Gilbert, S.G. and isotope ratios”. Science of the Total Environment 393: 291–298; and Tsuji, L.J.S.,

Wainman, B.C., Jayasinghe, R.K., VanSpronsen, E.P. and Liberda, E.N. 2009. Nälsém, C., Lundh, T., Barbieri, H.E., Pearson, M. et al. 2013. “Lead, mercury, and “Determining tissue-lead levels in large game mammals harvested with lead bullets: cadmium in blood and their relation to diet among Swedish adults”. Food Chemical human health concerns”. Bulletin of Environmental Contamination and Toxicology Toxicology 57: 161–169; and Meltzer, H.M., Dahl, H., Brantsaeter, A.L., Birgisdottir, 82(4): 435–439. B.E., Knutsen, H.K., Bernhoft, A. et al. 2013. “Consumption of lead-shot cervid 17 Bellinger, D.C. 2005. “Teratogen update: Lead and pregnancy”. Birth Defects meat and blood lead concentrations in a group of adult Norwegians”. Environmental Research (Part A) 73: 409–420; and Lozoff, B., Jimenez, E., Wolf, A.W., Angelilli, Research 127: 29–39. M.L., Zatakia, J., Jacobson, S.W. et al. 2009. “Higher infant blood lead levels with 42 See Lindboe et al., supra, note 38. longer duration of breastfeeding”. Journal of Pediatrics 155: 663–667. 43 See UNEP, supra, note 10; and UNEP. 2012. “Environmental governance: 18 AESAN. 2012. “Report of the Scientific Committee of the Spanish Agency Harmful substances and hazardous waste: UNEP Priority Area”. Paris: United for Food Safety and Nutrition (AESAN) in relation to the risk associated with the Nations Environment Programme. presence of lead in wild game meat in Spain”. AESAN-2012-002. Madrid: Spanish 44 Supra, note 20. Agency for Food Safety and Nutrition; FSA (Food Standards Agency). 2012. 45 UNEP. 2014. “Review and Guidelines to Prevent the Risk of Poisoning “Advice to frequent eaters of game shot with lead”. Available at http://www.food. of Migratory Birds”. UNEP/CMS/COP11/Doc.23.1.2. Bonn: United Nations gov.uk/science/advice-to-frequent-eaters-of-game-shot-with-lead; and BfR (Federal Environment Programme. Institute for Risk Assessment, Germany). 2011. “Lead fragments in game meat can 46 Thomas, V.G. and Anderson, D.A. 2013. “Banning the use of lead shot: options be an added health risk for certain consumer groups”. 32/2011. Available at http:// for the International Olympic Committee”. Environmental Policy and Law 43(6): www.bfr.bund.de/en/press_information/2011/32/lead_fragments_in_game_meat_ 300–306; and Thomas, V.G. and Guitart, R. 2013. “Transition to non-toxic gunshot can_be_an_added_health_risk_for_certain_consumer_groups-127610.html. use in Olympic shooting: policy implications for the IOC and UNEP in resolving 19 Thomas, V.G. 2010. “Achieving uniform regulation of environmental lead an environmental problem”. AMBIO 42: 746–754. exposure and poisoning in wildlife and humans”. The Environmentalist 30: 206–210. 47 See Thomas and Guitart, ibid. 20 Stroud, D.A. 2015. “The regulation of some sources of lead poisoning: a brief 48 Kit McConnell, International Olympic Committee (IOC) Sports Director, review”. In: Delahay and Spray (Eds), supra, note 14. personal written communication, 4 August 2014. There has been no formal change 21 Thomas, V.G. 2015. “Availability and use of lead-free shotgun and rifle in the IOC’s position on this issue. cartridges in the UK, with reference to regulations in other jurisdictions”. In: Delahay 49 See Thomas and Anderson, supra, note 46. and Spray (Eds), supra, note 14. 50 Supra, note 48. 22 Mateo, R., Vallverdú-Coll, N., López-Antia, A., Taggart, M.A., Martínez-Haro, 51 Nick Nuttall, UNEP, Nairobi, Kenya, representative to IOC Sport and M., Guitart, R. and Ortiz-Santaliestra, M.E. 2014. “Reducing Pb poisoning in birds Environment Commission, personal written communication, 12 November 2013. and Pb exposure in game meat consumers: The dual benefit of effective Pb shot There has been no formal change in UNEP’s position on this issue. regulation”. Environmental International 63: 163–168. 52 See the International Council for Game and Wildlife Conservation (CIC) 23 Supra, note 14. website at http://www.cic-wildlife.org/partners/. 24 See Green and Pain, and Pain et al., supra, note 15; and Knutsen, H.K., 53 Supra, note 32. Brantsæter, A-L, Alexander, J. and Meltzer, M. 2015. “Associations between 54 Burbaité, L. and Csányi, S. 2009. “Roe deer population and harvest changes in consumption of large game animals and blood lead levels in humans in Europe: Europe”. Estonian Journal of Ecology 58: 169–180; Lecocq, Y. 1997. “A European the Norwegian experience”. In: Delahay and Spray (Eds), supra, note 14. perspective on wild game meat and public health”. Scientific and echnicalT Review 25 Sorvari, J. 2007. “Environmental risks at Finnish shooting ranges – Case study”. 16: 579–585; and Booth, V.R. 2010. The contribution of hunting to tourism: how Human Ecology and Risk Assessment 13: 1111–1146; and see UNEP, supra, note 10. significant is this to national economies? Joint publication of FAO and CIC. Rome: 26 Bellinger, D.C., Burger, J., Cade, T., Cory-Slechta, D., Finkelstein, M., Hu, Food and Agriculture Organization of the United Nations. H. et al. 2013. “Health risks from lead-based ammunition in the environment”. 55 Kanstrup, N. (Ed.) 2010. “Sustainable hunting ammunition”. Workshop Environmental Health Perspectives 121: A178–179. Report, CIC Workshop, Aarhus, Denmark, 5–7 November 2009. Budakeszi: The 27 Watson, R.T., Fuller, M., Pokras, M. and Hunt, W.G. (Eds) 2009. Ingestion of International Council for Game and Wildlife Conservation. lead from spent ammunition: implications for wildlife and humans. Boise ID: The 56 Supra, notes 32 and 21. Peregrine Fund; and Delahay and Spray (Eds), supra, note 14. 57 Supra, note 45. 28 See WHO (2010), supra, note 10. 58 See FAO, supra, note 10. 29 Supra, note 21. 59 Supra, notes 32 and 21. 30 Gremse, C. and Rieger, S. 2015. “Lead from hunting ammunition in wild 60 Supra, note 22. game meat: research initiatives and current legislation in Germany and the EU”. 61 See Guitart et al., supra, note 15. In: Delahay and Spray (Eds), supra, note 14. 62 Bellinger, D.C. and Bellinger, A.M. 2006. “Childhood lead poisoning: the 31 Nadjafzadeh, M., Hofer, H. and Krone, O. 2013. “The link between feeding torturous path from science to policy”. Journal of Clinical Investigation 116: ecology and lead poisoning in White-Tailed Eagles”. Journal of Wildlife Management 853–857; and Cromie, R., Newth, J., Reeves, J., O’Brien, M., Beckmann, K. and 77: 48–57. Brown, M. 2015. “The sociological and political aspects of reducing lead poisoning 32 Thomas, V.G. 2013. “Lead-free hunting rifle ammunition:AUTHOR product availability, from ammunition COPY in the UK: why the transition to non-toxic ammunition is so price, effectiveness, and role in global wildlife conservation”. AMBIO 42: 737–745. difficult”. In: Delahay and Spray (Eds), supra, note 14. 33 Supra, note 5. 63 Supra, note 21. 34 See AESAN, supra, note 18. 64 European Commission. 2006. “Commission Regulation (EC) 1881/2006 35 NHS. 2015. “Have a healthy diet in pregnancy”. Available at http://www.nhs. of 19 December 2006 setting maximum levels for certain contaminants uk/conditions/pregnancy-and-baby/pages/healthy-pregnancy-diet.aspx. in foodstuffs”. Official Journal of the European Union (20.12.2006), 36 Supra, note 11. L364/365-L364/324. Available at http://eur-lex.europa.eu/legal-content/EN/ 37 See WHO (2011b), supra, note 10. TXT/?qid=1442063437890&uri=CELEX:32006R1881. 38 Hunt, W.G., Watson, R.T., Oaks, J.L., Parish, C.N., Burnham, K.K., Tucker, 65 Fachehoun, R.C., Lévesque, B., Dumas, P., St-Louis, A., Dubé, M. and Ayotte, P. R.L. et al. 2009. “Lead bullet fragments in venison from rifle-killed deer: Potential 2015. “Lead exposure through consumption of big game meat in Quebec, Canada: risk for human dietary exposure”. PLoS ONE 4(4): e5330; Knott, J., Gilbert, J., Hoccom, assessment and perception”. Food Additives and Contaminants Part A 32(9): 1501–1511. D. and Green, R. 2010. “Implications for wildlife and humans of dietary exposure 66 Supra, note 32; and see also Burbaité and Csanyi, and Lecocq, supra, note 54. to lead from fragments of lead rifle bullets in deer shot in the UK”. Science of the 67 See Knutsen et al., supra, note 24. Total Environment 409: 95–99; and Lindboe, M., Henrichsen, E.N., Høgåsen, H.R. 68 Supra, note 21. and Bernhoft, A. 2012. “Lead concentration in meat from lead-killed moose and 69 Supra, note 20. predicted human exposure using Monte Carlo simulation”. Food Additives and 70 See Cromie et al., supra, note 62. Contaminants: Part A 29: 1052–1057. 71 See Association of European Manufacturers of Sporting Ammunition (AFEMS) 39 See Tsuji et al. (2008), supra, note 16; Tsuji, L.J.S., Wainman, B.C., Martin, website at http://www.afems.org/. I.D., Sutherland, C., Weber, J.-P., Dumas, P. and Nieboer, E. 2008. “Lead shot 72 AFEMS. 2015. “Symposium ‘The Sustainable Use of Lead Ammunition in contribution to blood lead of First Nations people: the use of lead isotopes to identify Hunting and Sports Shooting: Facts and Emotions’”. AFEMS Press Release, 15 October the source of exposure”. Science of the Total Environment 405: 180–185; and Tsuji 2015, at http://www.leadsymposium.eu/en/the_symposium/press_release.aspx. et al. (2009), supra, note 16. 73 Thomas, V.G. and Owen, M. 1996. “Preventing lead toxicosis of European 40 Johansen, P., Asmund, G. and Riget, F. 2004. “High human exposure to lead waterfowl by regulatory and non-regulatory means”. Environmental Conservation through consumption of birds hunted with lead shot”. Environmental Pollution 127: 23: 358–364. 125–129; and Johansen, P., Pedersen, H.S., Asmund, G. and Riget, F. 2006. “Lead shot 74 Meyer, P.A., Brown, M.J. and Falk, H. 2008. “Global approach to reducing from hunting as a source of lead in human blood”. Environmental Pollution 142: 93–97. lead exposure and poisoning”. Mutation Research 659: 166–175. 41 Iqbal, S., Blumenthal, W., Kennedy, C., Yip, F.Y., Pickard, S., Flanders, W.D. 75 Lanphear, B.P. 2007. “The conquest of lead poisoning: a Pyrrhic victory”. et al. 2009. “Hunting with lead: association between blood lead levels and wild Environmental Health Perspectives 115: A484–5. game consumption”. Environmental Research 109: 952–959; Bjermo, H., Sand, S., 76 Supra, note 26.

OTHER INTERNATIONAL DEVELOPMENTS

Water Scarcity Comes of Age by Amado S. Tolentino, Jr* Water is a far more pressing problem than climate change…. Even if climate wouldn’t change, we have a water problem and this water problem is much more urgent…. Humankind is running out of water at an alarming pace…. We’re going to run out of water long before we run out of oil. – Peter Brabeck Chairman, Nestlé

The year 2001 has sometimes been touted as the first however, the recent changes in the global political and year of the “Century of Water”. That focus, however, was security environment may give rise to doubt as to whether overtaken by dramatic changes in climate throughout peaceful negotiation over water issues can continue to be the world, leading many to elevate climate to the role of the norm for much longer. Earth’s biggest problem and act as though nothing else In light of this question, it is appropriate to consider the mattered. As a result, over the past 15 years, the looming following current water-related situations: global water shortage has attracted far less attention than (i) China’s damming of the source of water of the global warming. Mekong River has sparked serious concern among According to the United Nations, one reason water countries downstream (Myanmar, Thailand, Laos, received less attention is that, unlike global warming, there Cambodia and Viet Nam); is no global water crisis per se. Rather, water issues present (ii) India, China and Pakistan see rising tensions over as “a series of regional predicaments in a world where the shared water resources as a result of their efforts distribution of fresh water is so lopsided that 60 per cent to boost production to keep up with their huge and of it is found in just nine countries, including Brazil, the expanding populations; US and Canada, according to the UN” (Clark). (iii) Recent discussions indicate a growing sense of alarm As a chemical compound, nothing could be simpler than in Central Asia over the prospect that two poor but water. Hydrogen plus oxygen equals water. And, although glacier-heavy nations (Tajikistan, Kyrgyzstan) in there is no shortage of water on planet Earth, which is the region may one day restrict the flow of water to covered by water, more than 97 percent of Earth’s water is their parched but oil-rich neighbours (Uzbekistan, salty and thus unusable for human consumption, agriculture Kazakhstan and Turkmenistan); and other uses. The shortage of fresh waterAUTHOR affects people’s (iv) COPYUltimate peace between Pakistan and India may hinge ability, inter alia, to grow crops, to provide drinking and as much on water as on nuclear weapons, in light of sanitation water for households, and to cool power plants. the two countries’ need to share the glacier-dependent In the past, military conflict over water rights has led Indus. to grave national security issues between some countries, including, to mention but a few, contention between On Earth, fresh water is in limited supply but must meet Ethiopia and Egypt over the Nile; between Botswana and the needs of a human population that has tripled in the last Namibia over the Okavango; and amongst Israel, Palestine century and continues to grow at a current rate of almost and Jordan over the River Jordan. Transboundary water 80 million per year. A torrent of recent water-related news sources such as these have always had the potential to has focused attention on the dry spell brought about by foment conflict; however, the natural interdependence the drought effect of El Niño, leading some countries to between countries sharing a water resource has also drawn declare a state of emergency due to the lack of adequate people to work together on the water availability aspect water supplies and to a concomitant decline in agricultural even when their countries were officially at war. production. In addition, it is possible that “water wars” were Among ASEAN countries, Thailand’s responses averted in these situations due to the changing perception have been notable. As a response to the gravity of the of the concept of “permanent sovereignty” over natural drought situation, it has recently adopted a policy to resources in favour of “functional sovereignty” or equitable minimise use of water by not growing off-season rice, utilisation of transboundary shared resources. In that case, to conserve water for household consumption. Farmers have switched to drought-resistant crops such as beans * Ambassador; and Member of the Asociacion Internacional de Derecho de or focused on raising livestock. Others resorted to raising Aguas (Rome). poultry or farming shallow-water fish in baskets. Many

0378-777X/15/$27.50 © 2016 IOS Press Environmental Policy and Law, 46/2 (2016) 133 rice farmers have also joined government-sponsored off- far-reaching effort to meet the challenges posed by the most season employment schemes such as working on irrigation precious asset on Earth – fresh water. canal dredging projects which generate more than 40,000 jobs nationwide. References With the December 2015 adoption of the Paris Clark, P. 2014. “A world without water”. FT The Big Read, 14 July 2014. Available at http://www.ft.com/cms/s/2/8e42bdc8-0838-11e4-9afc-00144feab7de. Agreement on reduction of greenhouse gas emissions, it is html#slide0. possible that water scarcity has or will “come of age” as a Tolentino, A. 2014. “Reflections and Trends on Sovereignty over Natural Resources: forefront issue. As countries actively pursue major actions, The Association of Southeast Asian Nations (ASEAN)”. In: Tvedt, T., McIntyre, O. and Woldetsadik, T.K. (Eds) Sovereignty and International Water Law. London: such as shifting to renewable energy sources (solar, wind, I.B. Tauris. biomass, etc.) to stop the devastating impacts of climate change, it is NOW time to set the goal that will lead to a

Environmental Disputes in Investor-State Arbitration – A Need for Change – by Aditya Vora Viral*

This article considers the challenges posed by the need number of environmental disputes and the manner in which to resolve environmental claims in Investor-State dispute they are adjudicated. Over the last decade, international settlement mechanisms. After a summary of the historical arbitral tribunals have addressed an increasing number of background, it analyses the treaties themselves to drive environmental disputes. There is a worldwide realisation home the point that many clauses in these treaties need that climate change is a genuine problem that requires to be better drafted and a conscious effort from States is attention. Historically, arbitration cases were fought in required in this regard. It then turns to an analysis of the special tribunals, formed pursuant to whatever Special jurisprudence of environmental claims and the reaction Agreement there was between the States that were parties to the awards given by the tribunals, especially the to the conflict. In the century following the establishment International Centre for Settlement of Investment Disputes of the Permanent Court of Arbitration (PCA) in 1899, there (ICSID). were only four cases registered. After 1998, however, 11 cases were registered in only 17 years. In addition to the Historical Background PCA, various other tribunals have also been set up, such The subject of environmental conservation through as the United Nations Commission on International Trade arbitration is an old one. The first arbitrated international Law (UNCITRAL) and ICSID. Other arbitration centres environmental dispute dates back to 1893,AUTHOR when the arbitral have sprung COPY up in major cities around the world. In ICSID tribunal addressed a case between the US and the UK alone, more than 500 cases have been registered in the relating to the rights of the US in the Bering Sea and the past decade. conservation of fur seals.1 The case revolved around the As the number of arbitral cases has grown, so rights of the UK to fish in the high seas and whether the has the relevant jurisprudence, including various US, having bought Alaska, could interfere with another taxonomies of arbitration leading to categorisation, State’s fishing activities. It pitted economic gains against including investment arbitration, the key issue in environmental conservation. this paper. Particularly in the investment arbitration The next international arbitration with an environmental tribunals, environmental concerns have taken a back issue was the Trail Smelter case in the 1920s and 1930s,2 seat. Recently, Nobel Prize-winning economist Joseph between the US and Canada over the air pollution from Stiglitz of Columbia University noted, in reference to sulphur deposits originating in the dominion of Canada the Trans-Pacific Partnership (TPP) Agreement, which and passing into the US. The tribunal’s decision called was released in December 2015: for the Canadian polluters to pay compensation for the We know we’re going to need regulations to restrict the transboundary pollution, based on a “Special Agreement” emissions of carbon. But under these [TPP] provisions, that had been signed by the two States. corporations can sue the government, including the American government… for the loss of profits as a Trends in Environmental Arbitration result of the regulations that restrict their ability to More recently, the trend in international environmental emit carbon emissions that lead to global warming.3 arbitrations has changed significantly, both in terms of the This understanding distinguishes environmental matters * Law Student at Jindal Global University, Sonipat, India. from other areas and poses a particular, but not unique,

0378-777X/15/$27.50 © 2016 IOS Press 134 Environmental Policy and Law, 46/2 (2016) challenge to international courts and tribunals that are investments and increase economic growth; on the other faced with resolving disputes that have an environmental hand, it has an obligation to protect the environment and component. address concerns relating to green energy. If a State seeks Environmental claims differ from other types of more investments and more growth, then logically it would arbitrations in that they may involve a myriad of potentially seem that more natural resources would be used. complex scientific arguments, and that those matters may A primary reason why developing markets are play a greater role in the dispute than legal arguments. A so lucrative for investors is that the labour laws and tribunal considering an environmental dispute may often be environmental regulations of these countries are much faced with opposing scientific arguments, the adjudication more relaxed than that of developed nations. Managing of which may be essential to resolution, but may also run natural resources and luring foreign investment is a into thousands of pages (see, for example the Gabĉikovo- daunting task that is made worse by the international Nagymaros case before the International Court of Justice investment commitments by which a developing State (ICJ)).4 The judges seeking to decide the merits of the must abide. case often find themselves in a rather difficult position These dilemmas are aptly depicted in a recent survey when seeking to decide the merits of the case, facing conducted by the Organisation for Economic Co-operation issues that require a specialised approach. This problem and Development (OECD) on investment agreements. It is demonstrable in many examples. In the Whaling Case,5 concludes that only 6.5 percent of Bilateral Investment for example, the ICJ used holograms to better understand Treaties (BITs) mention environmental concerns. It did, the scientific nature of the arguments. however, notice a positive trend, which indicates a move Environmental law apparently counts little in toward the inclusion of environmental protection clauses. investment arbitration disputes. Investment-related Nearly half of the BITs signed after 2005 include references tribunals with no direct environmental mandate have to environmental protection in the host State. The content summoned States to answer for the stoppage of oil of these clauses varies significantly, making the task of extraction6 and the withdrawal of development of tourist creating a taxonomy of environmental clauses, as attempted bungalows7 – both cases in which the State action was below, very difficult. originally taken for environmental reasons. This trend Three distinct clause characteristics appear in these (environmental decisions made by non-environmentally provisions, broadly reflecting national policy goals. Firstly, knowledgeable panels) seems far from disappearing. environmental provisions are most often located in the TPP Article 28.9, paragraph 3, discussing the procedure treaties’ preambles rather than their operative text, and for establishing arbitral panels, states: “Except in the are mostly limited to general statements that the parties case of a dispute arising under Chapter 19 (Labour), 20 are desirous to achieve “these objectives in a manner (Environment), or 26 (Transparency and Anti-corruption), consistent with the protection of health, safety and the each disputing Party shall endeavour to select panelists environment”.9 Secondly, some treaties’ environmental who have expertise or experience relevant to the subject provisions indicate the Parties’ intent to carve out a policy matter of the dispute”.8 space for the State, by suggesting that the State is free A second factor distinguishing environmental disputes to legislate on the grounds mentioned, even though the from other investment-related cases is that in most of these resulting legislation could impact the provisions of the disputes, the environmental claims bear only a minor treaty. Lastly, the provisions aim to ensure that the State connection to the original trade dispute.AUTHOR Some economic Parties COPY to the treaty continue to enforce their obligations to loss that was caused, is alleged to have arisen due to the protect and preserve the environment, irrespective of their environment-related actions, human rights claims or treaty obligations in the Treaty. violations. This desire to use social welfare laws, by linking The first category of environmental clauses – those in them to economic issues, may also explain why, although the preamble – generally aim to ensure that the objectives many recent cases have environmental elements, no case of the treaty include the protection and conservation of has yet been heard or registered in the Environmental the environment. Such clauses, however, do not normally Chamber of the ICJ. It is therefore perceived as impractical specify a hierarchy. Thus, when two provisions conflict, to constitute a panel of only experts in environmental law the preambular clause would not necessarily affect or (or to opt to bring an action before such a panel), where supersede the conflicting clause.10 Article 31(2) of the disputes will be considered in their entirety. Instead, the Vienna Convention on the Law of Treaties (VCLT) states selected tribunal is thus far more likely to be a panel that the preamble provides for the context, background whose members have a specific understanding of the major and the object of the treaty; however, it does not clearly (economic) issue at hand and only a general understanding mention how a preambular clause affects or is affected by of the secondary environmental claims. There is, however, an operative clause. a clear need for expertise to adjudicate the environmental Tribunals have interpreted these clauses in a very claims, and some type of more specialised jurisprudence narrow manner and pay little attention to the preamble regarding environmental claims. while deciphering the objectives of a treaty. The tribunal in Philip Morris v. Republic of Uruguay, interpreting a Legislative Trends preambular provision of the ICSID Convention regarding Environmental disputes are often subjects of on- the role of private investment, noted that, “the reference going debate within a State. The State wants to promote in the Preamble…appears too general to permit the

0378-777X/15/$27.50 © 2016 IOS Press Environmental Policy and Law, 46/2 (2016) 135 drawing of definitive conclusions regarding the need for Jurisprudential Trends the investment to contribute to the host State’s economic It is rare for an investor to complain about a State development”.11 According to Professor Romesh failing to apply its environmental laws in an investment Weeramantry (University of Hong Kong and a Legal treaty claim (although this is not unheard of). Rather, Advisor at Clifford Chance LLP), preambular clauses are where environmental issues arise, it is usually States that often drafted vaguely and are too general to override the raise them, with the goal of justifying the reasonableness specific operative clauses in the Treaty.12 Interpretation of regulatory actions that have been challenged by may also depend on the arbitrator’s origins. An arbitrator economically affected investors and industrial actors. The from a civil law country is more likely to look at the treaty tribunal then analyses the State’s claim from an objective holistically, including the preamble. If properly drafted, a and strict lens without giving due regard to the context preambular clause can often be authoritative and difficult in which the regulation was passed. It only provides for to overlook. a factual background that usually bears on the tribunal’s The second category of clauses comprises those that application of the relevant treaty provision, such as fair aim to carve out a policy space for the host State. These and equitable treatment. are the oldest and most common form of environmental The following discussion will analyse some landmark clauses. They are usually among the exception clauses cases and the awards rendered. Recent investment of the agreement. Many BITs have taken their language disputes with environmental components have been from Article XX of the General Agreement on Tariffs riddled with controversies, including, for example, an and Trade (GATT), stating that a provision of the Treaty applicant suing a State for passing a law which required may be breached for, e.g., “human, animal or plant life cigarettes to have “plain packaging” in order to deter their or health”.13 The chapeau of GATT’s exception clauses – use.16 States have been forced into arbitration for denying Article XX – mandates that a breach of the Agreement has licence renewals for hazardous chemical manufacture,17 to be in a manner that is not “discriminatory, arbitrary or refusing to grant permission for extraction of water,18 and unjustifiable”. The Canada-Costa Rica BIT adopts similar denial of mining and oil permissions. States have had to language: “nothing in this Chapter shall be construed to pay heavy compensation for breaching treaty obligations prevent a Party from adopting, maintaining, or enforcing by taking these common actions to address environmental any measure otherwise consistent with this Chapter that concerns. Germany was sued for shutting down nuclear it considers appropriate to ensure that investment activity plants in the wake of the Fukushima Nuclear Power in its territory is undertaken in a manner sensitive to Plant meltdown. Even shifts in governmental policies environmental concerns”.14 on clean energy, climate change and biodiversity have If a State successfully proves that such an exception is been arbitrated.19 The old claims of direct expropriation applicable, that State is not bound to pay any compensation have been overpowered by the recent claims of indirect to the opposing party. Some tribunals may also require the expropriation and interference with the “reasonable opposing party to pay the arbitration fees in such cases. expectation of profit”. The recent TPP may increase the Tribunals have interpreted these clauses restrictively, opportunity for such claims, through its broad definition however. For example, the words “otherwise consistent of “investment”.20 with this Agreement” in the BIT may be interpreted in a To address the shortcomings of these tribunals, there is a manner that will weaken the policy argument that backs need to understand the reasoning that has been provided to the environmental concerns. Taken holistically,AUTHOR however, reach theCOPY decisions. While adjudicating, the tribunals have even where it supports an appropriate decision, this often resorted to key principles of investment law rather mindset leads to bad jurisprudence, given that it may than environmental law, which has led to absurd results. be applied in future cases inappropriately. World Trade For example, they have looked at the motive behind the Organization (WTO) jurisprudence on Article XX leads to policy decision. In the case of S.D. Myers Inc. v. Canada,21 the same conclusion: exception clauses are applied in rare the tribunal held that the ban on the export of biphenyl was cases. There is a light at the end of the tunnel, however. As discriminatory, as it would favour the hazardous waste concerns and awareness about the environment increase, disposal industry. The government contended that the ban the Appellate Body of the WTO has started to take a softer was made in light of the Basel Convention, which seeks approach towards environmental disputes, especially after to ban the trade in biphenyls due to its hazardous nature. the Brazil-Retreaded Tires case in 2007.15 This change is Without going into the motive of the action by Canada, yet to be noticed in arbitral tribunals. it seems questionable how banning a commodity, whose In order to consciously protect the environment, there hazardous nature has been noted by a Convention with is a need for precise and expert legislative drafting. In light 183 State Parties, would be discriminatory in law, just of their lack of expertise in environmental issues, the lack because the local hazardous waste industry would be at of proper drafting of specified environmental clauses has an economic advantage. led investment tribunals to produce some jurisprudence In many instances, the tribunals give too much on environmental matters that is rather shocking. As a importance to the economic effect a measure may have consequence, many developing countries, especially the on the investor, rather than the public interest necessity of South American countries, have sought to revisit their BITs the measure. An example would be the case of Tecnicas and rescind their consent to arbitral tribunals, especially Medioambientales Tecmed S.A. v. United Mexican States22 ICSID. where Mexico did not renew the licence of the landfill

at http://www.democracynow.org/2015/10/27/joseph_stiglitz_under_tpp_polluters_ operator for environmental reasons. The tribunal, however, could. held that Mexico had based its decision on the fact that 4 Gabĉikovo-NagymarosProject (Hungary/Slovakia). Judgment. 25 September the people living in the vicinity had protested against the 1997. I.C.J. Reports 1997, at 7. 5 [Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), landfill and rejected its argument that the decision was access to all documents available at http://www.icj-cij.org/docket/index. based on environmental factors. Justifying the above, php?p1=3&p2=3&code=aj&case=148&k=64&p3=0. Ed.] the tribunal stated that the protest by the people did 6 Permanent Court of Arbitration (PCA). 23 September 2009. Chevron Corp. v. Ecuador. PCA Case No. 2009-23. Claimant’s Notice of Arbitration, paras 3–4. not constitute a “serious situation, crisis, need or social 7 International Centre for Settlement of Investment Disputes (ICSID). Unglaube emergency”, which would justify exempting the measure v. Republic of Costa Rica. ICSID Case No. ARB/08/1. from the treaty requirements.23 8 Trans-Pacific Partnership Agreement, not in force, opened for signature 4 February 2016. Full text available at https://ustr.gov/trade-agreements/free-trade- Finally, a State can claim relief by arguing that agreements/trans-pacific-partnership/tpp-full-text. a policy decision made by the State in breach of its 9 “2012 U.S. Model Bilateral Investment Treaty”. Available online at http:// treaty obligation has received widespread acceptance in www.state.gov/documents/organization/188371.pdf. international environmental law. Hence the future profits of 10 Beharry, C.L. 2015. “Going Green: Managing the Environment Through International Investment Arbitration”. American University International Law the investment would have been entirely speculative. The Review 30(3): 383–429, at 389. Chemtura Corp. case is an example of this.24 In its defence, 11 ICSID. 2 July 2013. Philip Morris v. Republic of Uruguay. ICSID Case No. Canada put forth evidence of national, regional, and ARB/10/7. Decision on Jurisdiction, para. 201. 12 Weeramantry, J.R. 2012. Treaty Interpretation in Investment Arbitration, international initiatives aimed at reducing and eliminating para. 3.80. Oxford: Oxford University Press. lindane. Hence it argued that the damages claimed for 13 Agreement between the Government of Canada and the Government of lost future profits were negligible. However, the Tribunal the Arab Republic of Egypt for the Promotion and Protection of Investments. 13 November 1996. Article XVII(3)(b) (“Provided that such measures are not applied ultimately did not discuss damages, having rejected the in an arbitrary or unjustifiable manner, or do not constitute a disguised restriction claims of Chemtura on merits. on international trade or investment, nothing in this Agreement shall be construed to prevent a Contracting Party from adopting or maintaining measures, including environmental measures … Necessary to protect human, animal or plant life or Conclusion health….”). Due to such wanton interpretations, major economies 14 Agreement between the Government of Canada and the Government of the like Bolivia, Ecuador and Venezuela have recently Republic of Costa Rica for the Promotion and Protection of Investments. 18 March withdrawn their consent to arbitrate under the ICSID 1998. Annex I, Article III(1). 15 World Trade Organization. Filed 2005, Final Arbitration report 2008. Brazil – Convention. There have also been protests by civil Measures Affecting Imports of Retreaded Tyres. WTO Dispute Settlement DS332/ society groups and non-governmental organisations at AB/R. the World Bank headquarters where the ICSID Tribunal 16 PCA. Philip Morris Asia Limited (Hong Kong) v. The Commonwealth of Australia. PCA Case No. 2012-12. Case pending. sits. In a recent demonstration, a Canadian Mining 17 NAFTA Arbitration. 22 May 2012. Dow AgroSciences LLC v. Government of Company was accused of using the Tribunal to prompt Canada. Settlement Agreement, para. 1. a nation-wide debate over mining and environmental 18 NAFTA Arbitration. 27 November 1998. Sun Belt Water, Inc. v. Government of Canada. Notice of Intent to Submit a Claim to Arbitration. health. 19 ICSID. Vattenfall AB v. Fed. Republic of Germany. ICSID Case No. International investment treaty jurisprudence suggests ARB/12/12. 2 July 2013. Decision on Respondent’s Preliminary Objections Pursuant that tribunals consider environmental issues as factual to ICSID Arbitration Rule 41(5). 20 Supra, note 8, Article 9.1. rather than legal matters. Because States often rely on 21 NAFTA Arbitration. 13 November 2000. S.D. Myers Inc. v. Canada. Partial environmental considerations to explain a measure’s Award on Liability, para. 155. legality and reasonableness, a tribunal’s findings on these 22 ICSID. Tecnicas Medioambientales Tecmed S.A. v. United Mexican States. AUTHORICSID COPYCase No. ARB(AF)/00/2. 29 May 2003. Award. 19 ICSID Rev. FILJ 158. factual issues will impact how it assesses whether the 23 Ibid., para. 19. State has violated a treaty obligation. A tribunal’s findings 24 Ad-hoc NAFTA Arbitration. 2 August 2010. Chemtura Corp. v. Canada. on environmental facts can also be relevant to other legal Award. determinations, such as jurisdiction and an investor’s entitlement to compensation as well as the quantum of damages owed. However, these decisions leave unanswered questions about evaluating government motives, conflicting scientific evidence, and the regulatory choices of States in implementing public policy objectives. In particular, the case law leaves open the fundamental question of the appropriate standard by which to review regulations addressing public health and the environment. There is a need for a conscious effort from States to sideline their economic motivations to protect the environment and focus on the public health consequences of the investment in question.

Notes 1 Pacific Fur SealArbitration , 15 August 1893, Moore’s International Arbitration Awards 1, at 755. 2 Trail Smelter Arbitration (US. v. Canada), 3 U.N. Rep. Int’l Arb. Awards 1905. 3 Democracy Now. 27 October 2015. “Joseph Stiglitz: Under TPP, Polluters Could Sue U.S. for Setting Carbon Emissions Limits”. Interview transcript. Online

Musk Deer Trade and Worldwide Depletion by Mudasir Ali* A strange inhabitant of the forested hills of eastern Asia is the musk deer. Not much bigger than a large hare and covered by a thick coarse coat, it differs from most deer in several other startling ways. The male does not have antlers, but does grow a pair of curved tusks, which thrust two or three inches from under its upper lip and are reportedly used for fighting during the rut. In addition the male possesses a musk gland, located in the abdomen whose odorous secretion has long been recognized as one of the best natural fixatives for perfumes – and has made the musk deer one of Asia’s most ruthlessly hunted animals.1

Musk deer are evolutionarily primitive,2 and have now An updated population estimate for musk deer throughout been excluded from the family Cervidae.3 Unlike deer, they its range is needed. possess a gall bladder.4 Musk deer are of moderate size, More expensive than gold, and known for its scent with an average mature weight of 6–11 kg and a body length properties,19 natural musk has been known for centuries and of 50–90 cm. They stand 50–60 cm high at the shoulder is employed to impart character and tenacity to high-class and about fivecm higher at the rump, and thereby display a perfumes.20 The latter use of musk is of ancient origin, 5 bounding gait. Musk deer attain Figure 1. Global distribution of musk deer Moschus spp. (based on a synthesis of sexual maturity by 18 months of currently available literature: Russia,13 Korea,14 Mongolia,15 Kazakhstan,16 China17 and the age, and females are capable of Himalayan range countries18). breeding in their first year. For Siberian musk deer, rutting lasts from the end of November until January, and fawning takes place between mid-April and the end of June.6 Most of a musk deer’s adult weight is gained within six months of birth.7 The musk deer lead a solitary life and are strongly territorial. Out of 121 sighting records of musk deer by Green,8 120 were of solitary animals. Individual home ranges of musk deer may be as much as 150–300 hectares.9 The Moschidae were AUTHOR COPY previously considered to include five species of musk deer, but it is now believed that there are more,10 as Moschus moschiferus, M. sifanicus, M. berezovskii, M. anhuiensis, M. leucogaster, M. fuscus, M. chrysogaster and M. cupreus are all acknowledged. The musk deer is distributed sporadically throughout the forested, mountainous parts of at least 13 Asian countries11 (see Figure 1). The total global population of the musk deer is believed to be 400,000–800,000, with the largest numbers found in China, Russia and Mongolia.12 The locations shown on the map are approximate due to the small scale, especially for Kyrgyzstan (for which there is a * M.Sc. and Ph.D., Environmental deficiency of data), Afghanistan, Pakistan, India, Nepal, Bhutan, Myanmar and Viet Nam. Sciences; formerly Lecturer, Depart- LEGEND ment of Environmental Sciences, A = Moschus anhuiensis, B = Moschus berezovskii, C = Moschus chrysogaster, Cu = Moschus cupreus University of Kashmir, Srinagar, India. F = Moschus fuscus, S = Moschus sifanicus, L = Moschus leucogaster, M = Moschus moschiferus

0378-777X/15/$27.50 © 2016 IOS Press 138 Environmental Policy and Law, 46/2 (2016) as documented, for instance, in the work of al-Tamīmī (a unsustainable consumption of medicinal species by the 10th-century CE Muslim physician born in Jerusalem), traditional medicine systems used by 80 percent of the who describes the method for preparation of a perfume world’s population. or scent called “ma jūn al-misk”, and a perfume mixture The present research paper seeks to provide a baseline known as “nadd” made from musk and ambergris.21 of information concerning musk deer and musk trade in Until the end of the 19th century, the popular fragrance Kashmir, and to provide a comparative account of the was obtainable only from natural sources.22 Currently, global trade in musk and associated activities. It aims to there are more than 100 reported companies in the help raise the awareness of wildlife managers globally perfume industry of Europe and the market is becoming regarding the conservation of the musk deer. increasingly international.23 Musk is highly prized in traditional East Asian Methods medicine,24 traditional Korean medicine,25 traditional The study was initially designed to be carried out only Chinese medicine,26 Vietnamese traditional medicine,27 in the Kashmir division (11,691 km2) of the state of Jammu Indian medicine (Ayurveda, Unani, etc.)28 and other local & Kashmir (N32°17'–37°05' and E72°31'–80°20') in the far systems. Musk is classified as a “hot and dry” drug of the north of India. The area is east and southeast of Pakistan and second or third degree in Arabic pharmacology.29 Afghanistan, and southwest and west of China and Tibet. Upon In 1890, the decline in the big game of Kashmir led the further investigation, it was determined that the Wardwan authorities in the state of Jammu & Kashmir (J&K) to re- Valley and Marwah/Marew Tehsil of Kishtwar (District Doda) introduce regulations for the preservation of musk deer, as (Figure 2) should also be included. The Wardwan Valley is well as of barasingha (Kashmir red deer) and ibex.30 Article southeast of the Kashmir Valley, connected with the district 51(1A) of the Jammu & Kashmir Wildlife (Protection) of Anantnag by a road that is impassible for motor vehicles, Act 1978 (as amended up to 2002) imposes penalties on which passes over the Margan and Nadibal Hills. Marwah offenders who contravene Chapter V.A of the J&K Wildlife comprises the fourth block of the Kishtwar National Park – a Protection (Amendment) Act, 2002. Trade/commerce in, trek of about 11 hours from Wardwan through the forests inter alia, trophies and animal articles derived from musk following the course of the Wardwan River. The Marew- deer, among other specified animals, is prohibited under Wardwan is a small and beautiful valley, about 40 miles in Section 49A and Chapter V.A in the Amendment Act,31 length and half a mile wide. providing a firm legal foundation for the Figure 2. Study area fight against wildlife crime. Trade in wildlife threatens musk deer in the same way that it threatens around one-third of birds and mammals worldwide.32 Accordingly, all musk deer species are listed in the Appendices of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), on either Appendix I (species threatened with extinction that are or may be affected by trade) or AppendixAUTHOR II COPY (species that may become threatened with extinction or whose loss may contribute to the threat to an Appendix-1 species if trade is not strictly controlled).33 Musk from Moschus spp. has been documented as the most frequently listed ingredient in 544 traditional Asian medicines, accounting for 26.65 percent.34 In patent medicines, musk is used in medicated plasters, capsules, pills, rheumatic ointments, oil-based rubs and water-based sprays. Raw musk powder may be consumed or applied externally.35 In recent years, there has been much concern that the traditionally attributed values of products such as musk deer glands are causing depletion of the source species.36 At its 10th Conference of the Parties (CoP-10, June 1997), CITES passed a new resolution that encouraged collaboration with traditional Top: The Kashmir valley in the north-west Himalayas, just north of the main Himalayan crest; medicine communities in order to prevent Bottom left: The Wardwan valley; Bottom right: Marwah (Kishtwar)

This addition altered the climate description of the Figure 3. A sub-adult musk deer in Kashmir study area. The average annual rainfall in District Doda is 350 mm which is comparatively low in comparison with the other regions of the J&K. Kashmir is a mountainous area in the north-west Himalayas, having a predominantly temperate climate with an average annual temperature of 15–17.5°C and rainfall of 600–800mm. The elevations within the study vary, approximately 1,584–4,572m and above. Kashmir is rich in Palearctic animals,37 and has a well developed assortment of Indo-Chinese animals (such as musk deer, goral, martens etc.), which commonly occur in the central and northeastern Himalayas, southern China and Myanmar. The holy men obtain the musk by requiring their clients The study’s objectives were to identify the pattern to bring it, often for a reduction in fee. As musk is very of trade in musk deer parts and products, and work out difficult to obtain on the market, this practice enables the where/how the impacts on musk deer populations arise. holy men to purchase it without direct ties with the poachers This included the study of trade in musk at different or traders. The practitioners described the musk as very stages of trade, and subsequent transfer from the source effective against evil. areas to the various regions. The methods used included The respondents were not very knowledgeable about undercover ground surveys and collection of primary the medicinal properties of the musk, although some noted information from different sources ranging from hunters that it is used in the preparation of medicines in foreign to the dealers of musk deer parts at the various levels countries. A few of the respondents (including a trader) of trade. The study included interviews with persons stated that it has medicinal properties such as “for treating possessing some specialist knowledge relevant to the sexual dysfunctions and impairments”, “for arousing topic; and field observations over a period of five months sexual desire”, and “against severe cold”. One musk (October 2006–February 2007). Although more than dealer said that the musk has a very good and pleasing 300 interviews were conducted, however, only 177 were aroma, and said that he often carries a musk pod in his found to be sufficiently reliable and used in the study. pocket as it seems to uplift his spirit. While discussing its In addition, in order to compile a thorough comparison intense aroma, another hunter noted that when returning with the other regions of the world, a literature survey from the forest with a recently harvested musk pod, (of papers and reports) carried out over the last eight hunters usually have a severe headache. Personally, during years or more, and an analysis were undertaken and the the survey, the author, whenever handling a beautifully results compiled and fortified to broaden the scope of this aromatic musk pod, experienced shortness of breath, paper’s argument. perhaps demonstrating the validity of the phrase “you can take my breath away...”. Results and Discussion Among interviewees, the use of musk in the preparation Musk Deer Parts in Trade of perfumes was more well known. With no chemical or The desire for musk deer parts, chiefly musk pods processing industries in Kashmir, however, this means that (glands), appears to be the primary factorAUTHOR driving their nearly COPYall the shipments were sent to other Indian states killing. Other than pods, the parts taken from the musk or abroad. deer included meat, tusks (canine teeth) and skin. Only musk pods were found to be traded, however; the other Figure 4. Musk pods from different regions of India parts were retained and used or consumed by the hunters. The musk pods did not appear to be significantly in use in Kashmir, apart from a small fraction used in the writing of amulets. There were no musk-based medicines available on local retail markets, either prepared locally or imported from other countries. The study area is reportedly a primary source area for musk pods, which are traded to other Indian states despite the legal protection of musk deer under Schedule I of the Jammu and Kashmir Wildlife (Protection) Act 1978 (as amended up to 2002).

Musk Local use is reportedly undertaken by some holy men in the writing of bewitching amulets. The musk is mixed with saffron and used as ink. Although this was reportedly confined to the Shiite sect, some Sunni holy men were also The pods weigh (from left to right) approximately 35, 35 and 15 grams respectively. The respondents had allegedly bought these musk pods from some wandering found to posses the musk pods. This was reportedly limited outsiders (jogis) from unspecified Indian states about 15 years ago. The musk pods of to particular types of evil magic for clientele or attendants. the Wardwan valley and Marwah are quite similar to the musk pod on the bottom left.

The musk pod is called Roos Náfa in Kashmiri, from Tusks (Canine Teeth) Roos meaning male musk deer (Rounce in the language of The tusk-like canine teeth of musk deer are taken as the hill Gujars and Bakerwals) and Náfa, an Urdu word for curios by the poachers, and reportedly worn by children as “navel”. This nomenclature is probably attributable to the charms against evil. They are also regarded as rare, curious location of the musk gland on the abdomen near the navel and valued works of natural art and, therefore, sometimes in the male musk deer. Comparing musk pods harvested used for decorative purposes. A resident of Marwah Tehsil from different regions leads to speculation that the musk (Kishtwar) had decorated the four corners of his room with deer found in Kashmir is a different species from that the sabre-like teeth. found in the Wardwan-Marwah range. The musk pods of Figure 6. Musk deer skins (of the type found in Yamhur the Wardwan and Marwah are larger and are different in Nai (~ ≥3000m above sea level), north-east of Dachigam) appearance from those found in Kashmir. The outer skin are kept by hunters as trophies covering the musk glands of the Wardwan-Marwah range appears delicate, in comparison to the musk pods found in Kashmir. The musk itself from Wardwan and Marwah is highly granular and reddish brown in colour, similar to the colour of dried dates, and musk grains are wood-like in consistency. By comparison, the musk from Kashmir is powdery in appearance with a predominantly brownish tinge. Kashmir musk is not so fragrant; the fragrance of the musk from the Wardwan-Marwah range is well developed, breathtaking and pleasing to the mind. On these grounds, it is opined that the musk deer in the Kashmir region is Moschus cupreus (Figure 3) while the musk deer in the Wardwan and Kishtwar region could be the M. leucogaster, because the musk pods of this region are seemingly similar to those found in the state of Uttarakhand, India. Figure 5. Musk pod harvested from the Gaddol forest, Kokernag, in the Kashmir Division

Skin Musk deer skins are retained by the poachers for various uses. In earlier times, they were reported to have been used for keeping some food products such as oats, etc. Nomadic graziers used to keep butter in musk deer skins. The skins are also used for matting, and as a parchment for some of the amulets mentioned above, and also reportedly for AUTHORperforming COPY the Seher (evil magic to harm someone). Figure 7. Musk deer “tusks”

Unlike true deer, male musk deer lack antlers but possess two “tusks” protruding Musk pods from the northern areas of Kashmir are similar to this musk pod, which from the upper jaw downwards which are movable in their sockets. The sabre-like reportedly had been improperly processed by an amateur hunter. canine teeth of musk deer shown above measured 8 cm in length. The tusks are reportedly worn by children as charms against evil. Meat The hunters stated that musk deer meat turns somewhat blackish in colour in cooking, is rather fibrous and tastes Driving Force for the Killing of Musk Deer delicious. A soup prepared from musk deer intestines, The uses of the various body parts taken seems out although bitter in taste, was mentioned by some respondents of proportion to the drive for poaching, which appears to in Marwah as having remedial effects upon those suffering be primarily directed at monetary objectives. Nearly all from chronic severe headaches (locally known as “Aazor”). interviewees cited the sale of musk pods as the reason for Some reported that the gall bladder of the musk deer is a hunting musk deer. Other parts are taken and consumed remedy against intense chest pain and asthma. or given away as an adjunct to this primary objective.

Amongst the younger generation, sport hunting coupled in Kashmir and Kishtwar; however, a hunter in Kupwara with the monetary benefits sometimes seemed to be the (Kashmir) alleged that the Gorkha (Nepalese) military drive taking them to the forests. This was evident along personnel of the Indian Military used snares for the capture the Kupwara region where youths were dreaming of better and killing of musk deer (Table 1). quality hunting rifles and going for miles in the woods. The hunters agreed that it was a bit difficult to distinguish between a male and a female musk deer in the wild. In Marwah, the hunters reported that two out of ten Musk deer are killed in order to harvest the musk gland – a highly musk deer killed turn out to be females; while in Kupwara prized commodity in the global markets for its medicinal and this figure was one in four. These results, however, are aromatic properties – and as such the musk deer populations globally based on a few estimates by the hunters and should be are under threat. The species is listed as “Endangered” in the IUCN more intensively investigated, because there were also Red List of Threatened Species, and the Himalayan musk deer is hunters who estimated a 50-50 ratio. To quote one hunter, included in Appendix I of the CITES Convention, and therefore “It is difficult to distinguish between a male and female trade in its parts is prohibited. musk deer in the wild, with the result musk deer are killed Trade in musk can be dated back prior to the sixth century on the indiscriminately and it is the luck of the hunter if the hunted basis of documents like “Suma Oriental” written between 1512 and deer turns out to be a male”. 1515 by Tomé Pires of Portugal; and “Topographia Christiana” by The unsustainable harvesting of the musk deer Cosmas the Monk written somewhere around the middle of the compromises the long-term economic future of the sixth century CE etc. A more or less accurate description of musk marginal/subsistence communities where the harvest of a harvesting is provided by Marco Polo (1254–1324) whose account single musk pod can provide a family with a year’s cash. of his travels and experiences in China offered Europeans a firsthand view of Asian lands and stimulated interest in Asian trade: Hunting Season The musk is found in this way. When the creature has been taken, From Kashmir up to the Wardwan and Marwah, the they find at the navel between the flesh and the skin something like musk deer were consistently reported to be killed in an impostume full of blood, which they cut out and remove with all January–February, especially during the first snowfall. the skin attached to it. And the blood inside this impostume is the From a biological point of view this makes sense, since musk that produces the powerful perfume. (Marco Polo, at 235) musk is produced by male individuals only during the rutting season which commences in the winter. In the summer, hunting still goes on, mainly by the Hunting Practices nomadic Bakerwal goatherds (Figure 8), during their Musk deer are solitary and alert, have a preference 3–4 months of residence in the high altitudes (May–July/ for difficult terrains and the ability to remain concealed. August). From a conservation standpoint, this practice is As a result, the ways of hunting musk deer are different negative, since April–May is the fawning season for the from those employed for other wild animals. Throughout musk deer and new individuals are recruited to replenish the Marwah-Wardwan, and also in Kashmir, the hunters’ the stock. methods for hunting musk deer are approximately the same. In Bandipora, the hunters usually sell the musk pods A group of eight to ten persons carry out the operation to traders in the month of March, but July–August was jointly. Two are stationed at a favourable spot on the higher reported to be the season in which musk pods are taken elevations in a known musk deer habitat,AUTHOR with the rest from Wardwan COPY and Marwah by the dealers of Anantnag. (drivers) spaced nearly equidistant, moving from the lower elevations of the habitat. The musk deer are driven towards Capture as Pets the upper reaches where the silent hunters shoot at them. Motivated by their fascinating beauty, Bakerwals and Smaller groups comprising of as few as four individuals some nearby residents attempt to take musk deer fawns can also be formed, as explained by some hunters in the as pets, especially in the Marwah region of the Kishtwar Kupwara region. Usually musk deer are shot when, after National Park. Such pets reportedly tend to survive only moving a short distance, they stop and look back to take a few months. Three musk deer fawns taken in 2005 by a stock of the situation (a peculiar trait of the musk deer). a Bakerwal from Wardwan died near Gowran when the Twelve-bore hunting rifles are commonly used for Bakerwals were on their seasonal return migration. Two the killing of the musk deer. LG (large goose) cartridges musk deer fawns taken in Marwah in June 2005 died are reportedly a widely used brand in Kashmir (allegedly after three months. These survival rates are found even bought from the PathanKot (Punjab) military canteen). Table 1. Methods reportedly used for the hunting of musk deer in Jammu and Kashmir Other lesser known brands Method ► Guns % Net % Snares % Don’t Total no. of include Almto cartridges. /Region▼ know* respondents Interviewees referred to the use Kashmir 75.94 0 1.26 24.05 79 of nets in the past in Marwah Wardwan and Marwah 75 2.5 0 25 40 and Wardwan, although there (Kishtwar) was no reference to current Figures add up to more than 100 percent because of multiple responses. use of nets in Kashmir. The * Also includes interviewee not willing to share information use of snares was not reported

0378-777X/15/$27.50 © 2016 IOS Press 142 Environmental Policy and Law, 46/2 (2016) in the best captive conditions, probably attributable to the Table 2. Prices per gram of musk at different trade levels reduction in the captive deer’s diet spectrum in captivity during 2006 and the disruption of other behavioural activities.38 Wild Price (in Indian Hunter Middleman Retailer † †† †† †† musk deer have a very delicate and diverse food spectrum rupees (INR)) (n=28) (n=22) (n=8) of different kinds of herbaceous plants and shrubs, and 250–299 (US $6–7) 14.28 - - under captive conditions they are forced to live on fewer 300–349 (US $7–8.30) 14.28 9.09 - foods of lesser quality. 350–399 21.42 9.09 - Figure 8. Most nomads possess hunting rifles and (US $8.30–9.50) thus hunt wildlife indiscriminately 400–449 7.14 27.27 - [Inset: Musk deer] (US $9.50–10.70) 450–499 21.42 9.09 - (US $10.70–12) 550–599 7.14 - - (US $13–14.30) 600–649 - 9.09 - (US $14.30–15.50) 650–699 7.14 9.09 - (US $15.50–16.70) 700–749 7.14 18.18 - (US $16.70–17.90) 850–899 - 9.09 25 (US $20.30–21.50) 1,000–1,049 - - 75 (US $24–25) † Conversion rate effective 1 November 2007: US$1 = 41.80 INR †† Percentage of respondents

certain factors mostly based on the quality of the musk. The musk of the Marwah and Wardwan is of superior quality and as such commands the highest price. In Kashmir, the prices are nearly uniform. Table 3 shows that the prices described for the YusMarg region seem to be the highest but this appears to be biased due to a smaller number of respondents, and hunters mostly acting as the middlemen,

AUTHORTable COPY 3. Regional price differences in Kashmir (Jammu and Kashmir) per gram of musk at different trade levels during 2006 (base=58) Musk Price Structure at Different Stages of Place ▼ Average price range (INR) Trade Hunter Middleman Retailer The prices of the musk as described by various sources at different levels of trade are presented in Table 2. The Dachan, 350–450 450–700 - musk pods are sold by weight rather than by the piece. The Marwah and (US$ (US$ Wardwan 8.30–10.70) 10.70–16.70) prices described by the interviewees are in the local weight (Kishtwar) unit “tola” (about 12 grams), but for the sake of simplicity this has been converted to grams. Anantnag/ 250–300 - 850–1,000 Some of these prices are expressed in terms of gold. Islamabad (US$ 6–7) (US$ 20.30–24) The average price of gold for 2007 was slightly less than US$700 an ounce,39 i.e., about 1,000 Indian rupees Yusmarg 500–600 650–700 - (INR) per gram, which equates fairly well to the presently (US$ (US$ 12–14.30) 15.50–16.70) observed price of musk at the retailer level. It is slightly but insignificantly higher at the middleman level. Overall, in Bandipora and 250–300 330– 400 - the domestic markets of Kashmir, the current price of musk Gurez (US$ 6–7) (US$ 8–9.50) equals its weight in gold and is sometimes calculated in multiples of its weight in gold in the international market. Kupwara 350–400 450–500 - However, the prices were not uniform in different (US$ (US$ 8.40–9.50) 9.50–12) regions of the study area (Table 3). This can be attributed to

0378-777X/15/$27.50 © 2016 IOS Press Environmental Policy and Law, 46/2 (2016) 143 and apparently less harvesting of musk deer in the region; The prices for one gram of musk at different stages otherwise musk pods of this region are similar to those of trade during various years in different countries is set found in other regions of Kashmir. out in Table 4, with footnotes designating the sources of information.

Table 4. Price structure of musk around the world

Region ▼ Price per gram (US$) Hunter Middleman Retailer Official Year Source (refers to import endnote where source is listed) Europe and South Korea 12-14 1997 Endnote 40 Russia 2–3 7-8 Early 1998 Ibid. Europe and South Korea 22 Early 1998 Ibid. Europe 50*1 Early 1998 Ibid. Singapore and Malaysia 30 2003 Endnote 42 South Korea*2 12 1999 Endnote 41 11.85 2000 Ibid. 12.67 2001 Ibid. South Korea 24–36 1998–2001 Ibid. Russian Federation 4–5 1991–1993 Ibid. 2–3 1999–2002 Ibid. 3–5 (with licence 1998–2002 Ibid. tallon) Ulan Bator, Mongolia 3–5 1993–1995 Ibid. 4–12 1996–2001 Ibid. 3.80–4 6–8 2001 Ibid. China 2.4 late 1970s and Endnote 43 early 1980s 7.23–8.43 after 1984 Ibid. Himalayan countries 15.38 1979 Endnote 44 China AUTHOR3.86 COPY 1979 Ibid. Japan 24 (for musk 1979 Ibid. pod) 45 (for the extracted musk grains) India 22 1993–96 Endnote 45 Himalayan countries *5 1950s Endnote 46 *6 1970s Ibid. *7 1980s Ibid. Krasnoyarskiy Kray, Russian 17–51*3 2001–2003 Endnote 47 Federation

European agencies (Belgium/ €1,400*4 1998–1999 Endnote 48 Germany/Italy/Spain)*4 Notes: *1 For use in perfume industry *2 Official import prices for the musk of Russian origin legally imported by South Korea *3 Cost of one musk deer licence *4 Musk deer from supply countries offered for tourist hunting by the European agencies *5 equivalent to quarter of its weight in gold *6 equivalent to three times its weight in gold *7 equivalent to half its weight in gold

Source Areas and Possible Trade Centres Haihama, Mawar, Murree Kalaroos, Chokibal, Karnah, The musk source areas are spread throughout the Kiran, Machil, Doodi-Shamsbari, Bungus Valley, Bailan, major forest landscapes against a backdrop of jagged Bhadarkote, Ragni-Tai, etc. Uri may also be a possible mountain peaks. Most hunting takes place in the forested source area (Figure 9). regions of the Kupwara District such as the Lolab Valley,

Figure 9. Map showing the reported areas of musk deer hunting in Kashmir

AUTHOR COPY

The supplies ultimately find their way into the hands The Japanese Trade Statistics concerning trade in of five to eight walnut kernel dealers of the Halmat Pora- musk51 show that in 1972, when the trade in musk was Haihama, Kupwara. Supplies from some areas of the banned in India, Japan imported 178 kg of musk from Baramulla District (Trikanjan Buniyar, Dozran Buniyar, India, while the imports by Japan in 1962–1971 (pre-ban) and forests adjoining Gulmarg in the west) are also sent to were averaged at 382.2 kg per year, and subsequently a that trading centre. The main source areas for the Bandipora total of 100 kg of musk has been imported over the period comprise the Gurez Valley, and also the nearby upper 1973–1982 (post-ban), 97 percent of which was imported forest reaches adjacent to Bandipora. Hunting is not so in two successive years following the trade prohibitions common along the Sindh Forest (probably because of the on Indian musk. already depleted populations, as became evident during Asian countries accounted for 66 percent of the interviewing) and as such small numbers are reportedly international trade in musk or its products during 1978–99, taken on occasion by the hide dealers of Pandach. Common according to CITES annual reports; while America, Europe, in the past, this trade is currently limited as these dealers Oceania and Africa accounted for 18 percent, 11 percent, 4 are reportedly involved in the trade of other species like percent and 1 percent, respectively. Among the 35 countries leopards, foxes and bear. that exported or re-exported musk deer products, including Yusmarg and its nearby forests, especially in the musk, in 1978–96, India exported a mere 100 grams of raw Hirpura Wildlife Sanctuary, experience some pressure musk as per the CITES annual reports; on the other hand from poaching. Its supplies reportedly were being taken in Soviet Union, Mongolia, Russia, Uzbekistan, Kyrgyzstan, the past by a hide dealer of the Bemina (earlier residing at Nepal and China exported 364 kg, 350 kg, 172.6 kg, 126 kg, Nawakadal, Srinagar), who had previously been associated 125 kg, 20.1 kg and 1 kg of raw musk, respectively. During with the trade in animal furs, with some close relatives in the same period, 42 countries imported musk deer products, Nepal. including musk, but China was the major legal exporter of In the Anantnag/Islamabad district, musk deer hunting musk products.52 takes place along the Pahalgam, including the upper The CITES trade statistics regarding international trade reaches of Aru, Danio Kandimarg, and from the Kokernag in Russian musk, 1990–2001, as reported by the Russian extending through the forests joining with the Doda district, Federation (exporting country) and by the importers and Banihal in the south. The supplies are being traded to showed that most of that output went to Hong Kong (205.02 Anantnag especially MulkNag where there are reportedly kg), South Korea (76.3 kg), Germany (68.43 kg), Singapore five or six dealers engaged with the herbal-based medicines (53.26 kg), China (50.59 kg), Switzerland (46.29 kg), profession, and smuggling medicinal plants. The trade France (22.02 kg) and Japan (2.7 kg). The total export centre acts as a sink for the supplies from the far-off places quantity of musk reported by the Russian Federation during of Marwah and Wardwan – the source of the high quality this period, 1990–2001, was 458.35 kg; however, Russian musk fetching handsome prices. export quotas for musk as communicated to CITES Parties And as far as Wardwan, Marwah and Dachan (Kishtwar) amounted to nearly 480 kg just between 1995–2001 alone.53 are concerned, the hunting of wild animals especially musk These statistics indicate some discrepancies in the data and deer is a regular occurrence. The residents of these regions also in the trade. are cut off from Kashmir and from Kishtwar, and thus Apparently, 72 kg of musk was legally harvested in living at subsistence levels. As such, they are extremely 1999–2000, fulfilling a quota of 73 percent against the dependent on the forests and their productsAUTHOR of both animal hunting COPY quota of 4,326 musk deer offered in the Russian and plant origin for money. Federation; however, the amount of musk illegally traded Poaching there is unabated, probably because of the during the same period was estimated to be approximately lack of any wildlife protection department representation. 400–450 kg, implying that 82–84 percent of male musk Hunting is reported even as far away as Nun and Kun, about deer killings in the Russian Federation were illegal.54 An three-days’ trek east from the Marwah. There are only 2–3 estimated 20,000 male musk deer are illegally killed per wildlife guards for the entire Wardwan-Marwah-Dachan year in Russia; and during the past decade, up to 3,000 range whose lives are integrated in the local societal matrix. male musk deer have been illegally killed annually in Mongolia.55 Domestic consumption of musk in the Global Trade in Musk Russian Federation is reported to be negligible. Musk Trade in musk deer primarily occurs in the form of raw from the markets in Mongolia is apparently destined musk and musk derivatives. According to Homes,50 trade in exclusively for China. In Mongolia, an estimated 2,000 musk deer specimens (based on a total of 612 records) in male musk deer were killed on average annually during the CITES trade report data during 1978–1996 as compiled 1996–2001.56 by WCMC (1998) was comprised of derivatives (58.17 Historically, it is inferred that musk was sold on percent), raw musk (28.27 percent), live animals (3.92 commission in China, based on Marco Polo’s suit against percent), bodies (2.29 percent), scientific specimens(1.96 Paulo Girardo, 9th March 1311, for recovery of the price of percent), skin parts (1.63 percent), skulls (0.49 percent), musk sold on commission, etc.57 The annual harvest of raw trophies (1.47 percent), skins (0.33 percent), oil (0.33 musk in China in the 1950s, estimated at about 1,400–1,700 percent), bones (0.33 percent), body parts (0.16 percent), kg, is opined to have increased to 2,000–3,000 kg during bone carvings (0.16 percent), bone products (0.16 percent), the 1960s, and then to have declined to about 1,500 kg horn products (0.16 percent), and feet (0.16 percent). in the 1970s and early 1980s.58 Reliance on these figures

0378-777X/15/$27.50 © 2016 IOS Press 146 Environmental Policy and Law, 46/2 (2016) alone, however, apparently leads to unrealistic results. The years (1960–2001). Approximately 27,000–50,000 musk quantity of musk smuggled to Japan from China between deer (assuming the proportion of adult males to total musk 1979 and 1985 equaled 1,154.4 kg.59 The total demand deer shot as varying from 40 to 75 percent; and 22.9 g as for musk in China in 1998 is estimated at 500–1,000 kg the average weight per musk gland) were killed in India per year.60 during 1960–1983. South Korea imported 1,196 kg of musk from 1995 An elaborative account of various aspects of the to 2001 on the basis of records of the annual reports to trade in musk in the early modern period is provided by CITES by South Korea and information from the Korea Borschberg;68 the following excerpt is worth mentioning Pharmaceutical Traders Association; and a survey by the in respect of relating the current trade patterns with the Ministry of Health and Welfare, published in 1997, revealed significant historic trade centres: that 486 kg of musk had been found in the possession As a compact and high value commodity, musk was of 129 clinics where traditional Korean medicine is highly praised by Asian and European merchants practised.61 Singapore reported a total import of 86 kg of alike…. On the basis of primary sources dating from raw musk during 1990–2001, and during the same time- the 16th and 17th centuries, including Chinese sources, frame Singapore reported re-exporting 82 kg of raw musk, it is possible to reconstruct the flow of the musk trade while South Korea and Hong Kong respectively reported from its central production in the mountainous regions imports of 59 and 29 kg of raw musk from Singapore.62 of South-western China along different channels CITES trade reports from China, 1990–2001, record of distribution and redistribution. This spans from Singapore as the export destination for over one million Japan in the East, through mainland and insular specimens of musk derivatives recorded in units of South-east Asia, the Indian Subcontinent, Iran, the boxes, cartons and specimens; and Malaysia (implying a Arabian Peninsula, Egypt and into Europe. After the significant demand from the Malaysian domestic market, establishment of a regular maritime route across the and for intended re-export to Australia, US, New Zealand Pacific, musk naturally also flowed from the Spanish and UK) as the destination for 7,000 boxes and 800 kg of entrepôt Manila to the Port of Acapulco in New musk derivatives.63 Spain (Mexico) and also to Peru. Along these ‘musk France (1980–1995), Germany (1994–1996) and routes’ are the key trading cities that act as nodes in Switzerland (1989–1995) imported approximately 97 kg, a redistribution network. Canton (Guangdong), the 60 kg and 12 kg of unprocessed musk respectively, and Chinese coastal towns (particularly around Amoy) were respectively indicated in the re-export of 7 percent and Manila are such key centres in the East; Chiang (to Hong Kong), 99 percent (to Hong Kong) and 92 percent Mai, Ava, Pegu, Patna and Delhi are such nodes in (to France) of the imported quantities, and accordingly the the overland trading network out of Yunnan province major importing countries with imports exceeding 100 kg as well as Tibet and Bhutan. The entrepôts of Malacca during 1978 to 1996 were South Korea (consumer or on the Malay Peninsula and Banten on Java were manufacturer of derivatives), Hong Kong (re-exporter), capable of attracting musk from the Chinese, Ryukyu France (consumer or in perfume industry), Singapore (re- or Portuguese traders arriving via the South China exporter), Japan (consumer or manufacturer of derivatives Sea, as well as from Peguan traders coming down for re-export), Cambodia (re-exporter) and Canada.64 from the Irawaddy Delta in the North. From Malacca To meet the demand for musk used in traditional the musk was transported to destinations on the Indian forms of East Asian medicine, large quantitiesAUTHOR of musk Subcontinent,COPY Hormuz, Aden, as far as Cairo and are illegally traded. East and Southeast Asia are the largest Alexandria, and from there also carried onward to market for musk. South Korea is known to use musk in other ports in the Mediterranean. traditional Korean medicine.65 The mean weight of a musk gland, most probably The paper also glimpses the historical activities of the of Himalayan origin, is reported to be 25 grams.66 The United Dutch East India Company relating to the trade and average weight of musk glands in trade in the Russian take of musk from Asia. The well-travelled French jeweller Federation (1999–2002) was found to be 22.9 grams by and merchant, Jean-Baptiste Tavernier, once indulged in analysing the weights of the 4,561 musk glands from the the purchase of more than 7,600 musk pods while visiting Russian Federation which corresponded to a total weight of a musk stall at a trade fair in Patna, India.69 A tax equivalent 104.468 kg of musk.67 The global average export quantity of 37.79 grams of silver had to be paid by a trader to the of musk traded by various countries (India, Nepal, China, State treasury in Lhasa (Tibet) for each litre of musk traded, Hong Kong, Soviet Union, Russian Federation, Mongolia, as noted by Hovaness Joughayetsi, an Armenian merchant Uzbekistan, Kyrgyzstan, Singapore, Switzerland, France who lived in Lhasa (Tibet) for almost five years in the late and Pakistan) during 1960–2001 involved the killing of 17th century (1686–1691), and left Lhasa with 483 kg of about 17,400 male musk deer per year (taking 22.9 g as musk! According to Qalqashandī, a 14th-century Egyptian the average weight per musk gland). Taking a conservative author: “from the Himalayas, Tibetan musk was brought assessment, assuming 60 percent of the individual musk into Khorasan from where it was transported to places all deer harvested are male, then a total of 29,000 musk deer over the Islamic world”. The important places mentioned (adult and sub-adult individuals of both sexes) were killed in the trading route include Daybul, Sīrāf in Persia, Oman each year during 1960–2001. Therefore, a total of about in Baḥrain (the southern shores of the Persian Gulf), Aden 1,218,000 musk deer were killed during a time span of 42 in Yemen, and the port of al-Ubulla near Basra. Over

0378-777X/15/$27.50 © 2016 IOS Press Environmental Policy and Law, 46/2 (2016) 147 several centuries, Tibetan musk was traded not only by • Society has a definite role in encouraging as well as Arabs and Tibetans but also by Sogdian, Armenian, Jewish, discouraging certain practices. Wildlife trade presently European and other merchants.70 Musk is also mentioned has a very low social acceptance in Kashmir, but the in many Genizah fragments of Cairo as a commodity in persistent problem seemingly is that the offenders many Mediterranean cities (including Alexandria and involved in wildlife crimes usually remain relatively Qayrawān), with especial reference to its price. The musk unexposed even if criminal charges are brought against (mousquelliat) was traded in Acre (an industrial seaport them. The mandatory publishing of the offences in the in northern Israel) during the times of the Crusades i.e., news and print media could prove beneficial in the long 11th–13th centuries.71 term, and could also serve as a data repository. • Punishments imposed on offenders by the Judiciary to Recommendations the law should be severe enough to strongly discourage General Suggestions the illegal trade in musk or wildlife in general. Based on the above study and the related literature • Enlightening the Judiciary and the Police regarding analysis, the following suggestions are put forward for the the importance of wildlife conservation, and likely discouragement of the illegal trade in musk: impacts that might occur as a result of the erosion of • Surveillance, vigilance and investigations be carried biodiversity. out to halt the offending activities. • Information exchange between the wildlife department • The villagers of the Wardwan-Marwah range should and other agencies and researchers, although currently particularly be provided with incentives in the form viewed by the officials in charge as undesirable, should of employment preferences such as under the rural be encouraged. backward areas category, because part of the problem in these far-off places seems to be attributable to Suggestions to the CITES Secretariat on the poverty. But establishment of a fully fledged wildlife Contemporary Global Trade in Musk wing in this region is of paramount significance because • Range States like India which have banned any trade poaching activities may still be carried out even if jobs in musk deer appear to be exempted from submitting are provided to such persons. any progress reports to CITES, and therefore the illegal • It is essential that the wildlife conservation sector in trade continues to flourish without due restrictions. It the J&K state be given due recognition, and wildlife is recommended that all the musk deer range countries authorities should realise their powers and implement should be regularly prompted to study the populations them in a positive direction. They should not hesitate and distribution of the musk deer in their respective in asking for up-to-date capacity building and at the regions. For this, a unified methodology needs to be same time mobilisation of resources should be carried provided or developed by the international regulatory out fairly and powerfully. authorities like TRAFFIC, WWF, etc. • The impacts of the seasonal herding activities by • The main problem to arise once the musk is on the the nomadic Gujjar and Bakerwal tribes could market (national or international), is that its origin undoubtedly be detrimental to the habitat of the remains unknown and at times legal quotas can shield musk deer, or indirectly to the populations of the the illegal trade. The best way could be to research the musk deer, but the direct impacts on the musk deer musk of all the source/range countries simultaneously populations through poaching could beAUTHOR minimal from and COPY look for possible means of identifying the them because their activities are concentrated during differences. Morphological, morphometric, physical the summer season in which exploitation of the and, more importantly, chemical properties should musk deer for purposes of harvesting musk could be be taken into consideration, and a catalogue of a wasteful effort. But taking musk deer fawns could possible differences should be developed. The CITES have detrimental effects. However, they do directly management authorities are recommended to work affect the other species like bear and leopards which towards it. This type of catalogue could help in finding is testified to by their possession of hunting rifles the possible trade routes and could also partly help in and fresh cartridges. An up-to-date census of these the taxonomy of the Moschus. tribes could be beneficial in devising a policy for • A mechanism needs to be established whereby all the provision of grazing lands where impacts on the CITES subscribers are encouraged or mandated to wildlife could be minimal. report the seizures and confiscations of all the wildlife • Surveillance by police and undercover staff of the specimens to CITES within a stipulated time-frame, wildlife department should especially be carried out because it becomes difficult for local researchers to between December and March of every year in the get the official government information, and often the mountain forest areas. As far as possible, the local information is considered irrelevant after a certain time residential wildlife employees of the respective regions lapse and therefore is likely to be destroyed, which should be avoided during such a period as being hampers the monitoring work. unreliable. • The analysis of the CITES reported trade statistics • Less Gorkha (Nepalese) military personnel should be concerning trade in musk gives an insight, but leads deployed by the Indian Military Forces in the forest one to wonder at the divergence between the quantities areas known to be inhabited by musk deer. reported by the importing and the exporting countries.

Otd. Akad. Nauk SSSR; Prikhod‘ko, V.I. 1997. “On the reduction of the number of It could be worthwhile to investigate whether the musk musk deer in Russia”. In: Aristova, A.A. (Ed.) Rare Species of Mammals of Russia transactions between two countries, as reported by those and Neighbouring Territories. Moscow: Russian Academy of Sciences Therological Society; Zaytsev, V.A. 1991. Musk Deer of Sikhote-Alin. Ecology and Behaviour. countries, relate to the same trader or different traders. Moscow: Nauka; and Lobanov, P.N. 1975. “The situation with the musk deer • Although feasible geographically, there are no reports population in the east Sayan region”. In: The Ungulates of the USSR. Moscow: suggesting the occurrence of musk deer in Tajikistan. Nauka. Additional information on this issue was found in Homes, V. 1999. On the It needs to be confirmed conclusively whether musk Scent: Conserving Musk Deer – the Uses of Musk and Europe’s Role in its Trade. Brussels: TRAFFIC Europe; and Homes, V. (Ed.) 2004. No Licence to Kill: The deer occur in Tajikistan or not. Population and Harvest of Musk Deer in the Russian Federation and Mongolia. • The status of musk deer in Afghanistan needs to be Brussels: TRAFFIC Europe. assessed. 14 Source information on musk deer distribution in Korea: Grubb, P. 1993. “Order Artiodactyla”. In: Wilson, D.E. and Reeder, D.M. (Eds) Mammal Species of • The use of musk in present day Arabia and around the the World: A Taxonomic and Geographic Reference. Washington DC: Smithsonian Mediterranean, especially in Egypt, could be a highly Institution Press. interesting endeavour and significant area of research 15 Source information on musk deer distribution in Mongolia: Dulamtseren, S., Tsendjav, D. and Avirmed, D. 1989. Mammals of Mongolia. [In Mongolian] to be carried out. Ulaanbaatar: Publishing House of the Mongolian Academy of Sciences. 16 Source information on musk deer distribution in Kazakhstan: Baidavletov, R.Zh. 1980. “Musk Deer in the Eastern Kazakhstan”, and Baidavletov, R.Zh. 1980. “Distribution and Number of Ungulates in Northeast Trans-Baikalian area”. In: Acknowledgements Baidavletov, R.Zh. (Ed.) The Ungulates of the USSR. Moscow: Nauka. The author extends due and foremost gratitude to 17 Source information on musk deer distribution in China: Zhou, Y., Meng, X., the Almighty Allah for conferring the abilities to Feng, J., Yang, Q., Feng, Z., Xia, L. and Bartos, L. 2004. “Review of the distribution, carry out this study. The people who contributed status and conservation of musk deer in China”. Folia Zoologica 53(2): 129–140; and Yang, Q., Meng, X., Xia, L. and Feng, Z. 2003. “Conservation status and causes towards this study are too many to list, and the of decline of musk deer (Moschus spp.) in China”. Biological Conservation 109: author heartily thanks them all for rendering their 333–342; and other sources cited in these works. valuable time, help and able guidance at one time 18 Source information on musk deer distribution for the Himalayan range countries: Groves, C.P., Wang, Y. and Grubb, P. 1995. “Taxonomy of musk-deer, or another. The Department of Wildlife (Protection), genus Moschus (Moschidae, Mammalia)”. Acta Theriologica Sinica 15(3): 181–197; Government of Jammu & Kashmir, is highly Groves and Grubb, supra, note 3 and Grubb, supra, note 14. acknowledged for granting permission to carry out 19 Green, M.J.B. 1986. “The distribution, status and conservation of the Himalayan musk deer Moschus chrysogaster”. Biological Conservation the study within Jammu & Kashmir. Thanks are also 35: 347–375. extended to Prof. G.A. Bhat and Dr Rahul Kaul. 20 Pickthall, J. 1960. “The musk odour”. Journal of the Society of Cosmetic Chemists 11(7): 423–436. 21 Lev, E. and Amar, Z. 2008. 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In: Proceedings of 4 Ibid. the Seminar on International Trade in Endangered Wild Fauna and Flora. Seoul: 5 National Research Council. 1991. Microlivestock: Little-Known Small Animals TRAFFIC East Asia/Ministry of Environment/Ministry of Health and Welfare; and with a Promising Economic Future, at 307–313. Washington DC: National Academy Kang, S. and Phipps, M. 2003. A Question of Attitude: South Korea’s Traditional Press. AUTHORMedicine COPY Practitioners and Wildlife Conservation. Hong Kong: TRAFFIC East 6 Flerov, K.K. 1952. “Musk deer and deer”. In: Fauna of the USSR: Mammals. Asia. Jerusalem: Israel Programme for Scientific Translations (Transl.); and Green, M.J.B. 26 Bensky, D. and Gamble, A. 1990. Chinese Herbal Medicine Formulas and and Singh, A.N. 1981. “The ecology and conservation of the Himalayan musk deer”. Strategies. Seattle WA: Eastland Press. In: Saharia, V.B. and Dun, D. Wildlife of India. Uttarakhand: Natraj Publishers. 27 Chau, H.B. (Ed.) 1993. Vietnamese Traditional Medicine, at 144–156. Hanoi: 7 Green, M.J.B. 1989. “Himalayan musk deer in Kedarnath Wildlife Sanctuary: The Gioi. an ecological perspective”. In: Singh, T.V. and Kaur, J. (Eds) Studies in Himalayan 28 Thomas, J. 2005. “Ayurveda: musk”. Kerala Calling January: 36–37. Ecology. New Delhi: Himalayan Books. 29 Supra, note 21; and Akosy, A. and Yoeli-Tlalim, R. 2007. “Along the musk 8 Ibid. routes: exchanges between Tibet and the Islamic World”. Asian Medicine: Tradition 9 Bannikov, A.G., Ustinov, S.K. and Lobanov, P.N. 1980. The musk deer Moschus and Modernity 3: 217–240. moschiferus in USSR. Gland: IUCN; and Saharia and Dun, supra, note 6. 30 Lawrence, W.R. 1895. The Valley of Kashmir. London: Henry Frowde. 10 Supra, note 3. 31 Department of Wildlife Protection, Government of Jammu & Kashmir. 2002. 11 Flerov, supra, note 6; and Flerov, C.C. 1930. “On the Classification and The Jammu & Kashmir Wildlife (Protection) Act 1978 (as amended up to 2002). Geographical Distribution of the Genus Moschus (Mammalia, Cervidae)”. Yearbook Srinagar. Musk deer are listed in Schedule 1 (hunting strictly prohibited). of the Zoological Museum of the USSR 31: 1–20; Dao, V.T. 1977. “Sur quelques rares 32 Baillie, J.E.M., Hilton-Taylor, C. and Stuart, S.N. 2004. 2004 IUCN Red List mammifères au nord du Vietnam”. Mitteilungen aus dem Zoologischen Museum of Threatened Species. Gland: IUCN. 53: 325–330; and Wemmer, C. (Ed.) 1998. Deer: Status Survey and Conservation 33 Supra, note 14; and Rivalan, P., Delmas, V., Angulo, E., Bull, L.S., Hall, R.J., Action Plan. Gland and Cambridge: IUCN/SSC Deer Specialist Group. Courchamp, F., Rosser, A.M. and Leader-Williams, N. 2007. “Can bans stimulate 12 WWF. 2002. “WWF FACTSHEET: 12th Meeting of the Conference of the wildlife trade?” Nature 447: 529–530. Parties to CITES: 3–15 November. Musk deer Moschus spp.” Online at http:// 34 Cameron, G., Pendry, S. and Allan, C. 2002. Traditional Asian Medicine d2ouvy59p0dg6k.cloudfront.net/downloads/Musk_deer_factsheet.pdf. Identification Guide for Law Enforcers. Cambridge: TRAFFIC International. Cited 13 Source information on musk deer distribution in Russia: Gueptner, V.G., in Ng, D. and Burgess, E.A. 2004. Against the Grain: Trade in Musk Deer Products Nasimovitch, A.A. and Bannikov, A.G. 1961. The Mammals of the Soviet Union in Singapore and Malaysia. Malaysia: TRAFFIC Southeast Asia. 1, at 81–97. Moscow: Vysshaya Shkola; Middendorf, A.F. 1867. The travel to the 35 Ng and Burgess, ibid. northeastern part of Siberia. [In Russian] St Petersburg: St Petersburg’s Botanical 36 Putman, J.J. 1976. “India struggles to save her wildlife”. National Geographic Garden Press; Abramov, K.G. 1954. Ungulate Animals of the Far East. Khabarovsk: 150(3): 299–343. Knizhnoe Izdatelstvo; Chernyavsky, F.B. 1984. The Mammals of the Far Northeast 37 Das, S.M. 1966. “Palaearctic elements in the fauna of Kashmir”. Nature 212: of Siberia. Moscow: Nauka; Zheleznov, N.K. 1990. Dikie kopytnye Severo-Vostoka 1327–1330; and Das, S.M., Malhotra, Y.R. and Duda, P.L. 1964. “The Palaearctic SSSR (Wild Ungulates in the Northeast of the Soviet Union). Vladivostok: Dal’nevost. elements in the fauna of Kashmir region”. Kashmir Science I (1&2): 100–111.

38 Mudasir-Ali, B.G.A. 2011. “Selection of food plants under captivity by 54 Ibid. Kashmir musk deer, Moschus cupreus: a brief experiment and comment”. Ecology, 55 TRAFFIC & WWF. 2002. “November Briefing: A CITES Priority: The Environment & Conservation 17(1): 96–100. Challenge of Conserving Musk Deer (Moschus spp.)”. Cambridge and Gland: 39 Business etala‘at. 1 January 2008. “Gold may touch $1,000 during 2008”. TRAFFIC International and WWF International. Etala’at [newspaper]. Srinagar. 56 Supra, note 41. 40 Supra, note 23. 57 1903+1920. The Travels of Marco Polo by Marco Polo and Rustichello of 41 Supra, note 3. Pisa. Volume 2. The Complete Yule-Cordier Edition. Online at http://www.fullbooks. 42 Homes, 2004, supra, note 13. com/The-Travels-of-Marco-Polo-Volume-2.html. 43 Supra, note 41. 58 Zhou et al., supra, note 17; and Sheng, H. 1998. “Genus Moschus in China”. 44 Shusheng, G. and Shila, M.A. 2000. “Comment: decline of musk deer in China In: Wang, S. (Ed.) China Red Data Book of Endangered Animals. Beijing/Hong and prospects for management”. Environmental Conservation 27(4): 323–325; Kong/New York: Science Press. and Liu, W. 1996. Wildlife Resources of Tibet. Series 1: Musk Deer and Bear. 59 Sheng, H. 1992. Deer of China. [In Chinese] Shanghai: East China Normal [In Chinese] Beijing: Forest Press. University Press. Cited in Shusheng and Shila, supra, note 44. 45 Green, M.J.B. 1989. “Musk production from musk deer”. In: Hudson, R.J., 60 Supra, notes 58 and Zhou, supra, note 17. Drew, K.R. and Baskin, L.M. Wildlife Production System. Cambridge: Cambridge 61 Kang and Phipps, supra, note 25. University Press. 62 Ng and Burgess, supra, note 34. 46 Asadi, H. 1996. An Overview of Wildlife Trade – Study in India, 1993–1996. 63 Ibid. Cambridge: TRAFFIC International (Unpublished report). 64 Supra, note 50. 47 Supra, note 19. 65 Supra, notes 41 and 52. 48 Supra, note 41. 66 Supra, notes 7 and 19. 49 Hofer, D. 2002. The Lion’s Share of the Hunt. Trophy Hunting and 67 Supra, note 41. Conservation: A Review of the Legal Eurasian Tourist Hunting Market and Trophy 68 Borschberg, P. 2004. “The European musk trade with Asia in the Early Modern Trade under CITES. Brussels: TRAFFIC Europe. Period”. The Heritage Journal 1(1): 1–12. 50 Supra, note 23. 69 Ibid. 51 Supra, note 19. 70 Supra, note 29. 52 Supra, note 50. 71 Supra, note 21. 53 Supra, note 41.

Social Rights in International Law – Premises for a (New) Fundamental Approach – by Rodrigo Garcia Schwarz*

If we think about the absolute supremacy of human bound up with the notion of dignity and related to the life – a life that, to be understood as such, must be a life freedom and autonomy of the individual, and therefore lived with dignity – we have to think about life from a is not possible without a guarantee of the economically, material point of view and, therefore, give priority status socially and culturally dependent existential minimum. to the so-called “social” rights, since social (economic, This fundamentality implies the need to address the social and cultural) rights address issues as basic to life process of trivialisation (which, in practice, strips human and human dignity as food, health, shelter, work, education rights of their authority) and theoretical fragmentation of and water. With this understanding, it becomesAUTHOR very clear rights sinceCOPY the implementation of social rights cannot be that the essence of human dignity rests in the so-called considered separately from the consolidation of democracy “existential minimum”, the hard kernel of social rights, in itself. Essential for democracy, the fulfilment of civic such a way that social rights are genuine (true) fundamental responsibilities requires economic and social reforms and human rights. the reshaping of mental attitudes for the effective removal Recognition of social rights, therefore, cannot be a of the obstacles that impede it. mere listing of good intentions on the part of States in To speak of human rights, then, is to speak of making international law. Social rights are fundamental rights for social rights accessible to groups of people who do not all men, which must be exercisable by everyone. As such, usually have effective access to them. This is a matter they are essential to life and human dignity. There is much of opening up a new path, alternative and real in the to be done, if these rights are to be put on a par with civil true sense, leading to a non-exclusive citizenship that is and political rights in terms of their legal status. democratic in the sense of its recognition by everyone and In this context, it is necessary to adopt a new viewpoint its all-inclusiveness and directed toward an authentically on economic, social and cultural rights, or simply, “social transformative praxis of society. To get this moving rights”, since the exercise of any human rights, even the undoubtedly requires great energy and tenacity and the traditional individual civil and political rights, is intimately capacity to conceptualise content and techniques that allow for a reconsidering of social rights and their guarantees. * Permanent Judge of the Brazilian Federal Labour Court of the 2nd Region (São Paulo); Professor of the LL.M. (Master of Laws) Programme of the Initial Considerations on Human Rights University of the West of Santa Catarina (UNOESC), Brazil; Doctor of One of the great advances of modern social Laws (Public Law), Catholic University of São Paulo; Doctor of Laws (Labour Law and Social Security), Castilla-La Mancha University, Spain; constitutionalism and international law is that it has and Doctor in History (Social History), Catholic University of São Paulo. bestowed a binding power upon the international legal status

0378-777X/15/$27.50 © 2016 IOS Press 150 Environmental Policy and Law, 46/2 (2016) of human rights – a priority above national legislation; a Article 27 of the Vienna Convention on the Law of Treaties fundamental axis, generally with constitutional standing, establishes that no State signing any treaty can invoke its to be applied by State officials and effectively honoured internal law as the reason it has failed to perform its treaty by private individuals. Even looking beyond the complex obligations. legal debate over the relationship between international According to Martin, Rodríguez and Guevara,2 insofar law and internal law (monism and dualism), it is true that, as it concerns treaties on human rights, with more or less emphasis, modern constitutions contain the particular nature of agreements of this type justifies clauses conferring special force on international treaties on the special treatment which various constitutions … human rights. There is a very simple reason underlying this dispense to rights internationally protected by treaties. approach: the investment by a social and democratic State It is clear that the internal and international effect must necessarily begin with the idea of a constitutional produced by ratification of a general international democracy as a system deeply anchored in human rights. treaty is not the same as that produced by a treaty Human rights – or, better yet, the evidences of effective protecting human rights. This is one of the justifications respect for human rights – are those rights that currently by which the constituents are concerned with giving make up the primary principle of reference for evaluating a special treatment to international conventions on the legitimacy of a legal-political system of law. Thus, within human rights. the scope of modern social constitutionalism, the special and privileged treatment of human rights is justified based on These reasons for the special treatment of human rights a deep axiological and legalistic affinity between modern treaties are further strengthened if we take into account, in international law, beginning with the Charter of the United addition, the respect for human rights that was embodied in Nations and the Universal Declaration of Human Rights, the international order established after World War II. That which places human rights at the pinnacle, and positions international order progressively establishes mechanisms internal law (constitutional and fundamental rights) in an for the protection of these rights. This special and privileged equivalent manner. It is natural that modern constitutions constitutional treatment of human rights treaties has, in underscore this affinity, by conferring a special status on the turn, two very important regulatory consequences that international instruments of human rights. also complement the justification of this constitutional This special approach to human rights treaties is approach. also justified because such treaties contain ethical and Firstly, it allows us, in legal terms, to remove human legal details. In fact, while treaties of the traditional type rights treaties from the complex debate about the generally establish reciprocal obligations between States relationship between international law and internal law, and are entered into for their mutual benefit, treaties on at least to the extent that the constitution itself attributes human rights have the peculiarity that States (even those a special power to international law on human rights that may be neither the beneficiaries nor the intended (which become constitutional rights and fundamental subjects of these treaties) adopt them, for the simple reason rights when they are institutionalised). This occurs without that such legal status is directed towards the protection detriment to the level of priority that other treaties may of personal dignity. Human rights treaties follow the have in the internal system of law. It is not an accident establishment of public order common to their Parties. that the expression “human rights” is generally used They are not directed at States as the chosen beneficiaries, interchangeably with “fundamental rights”. This is evident but rather at individual persons. Their purposeAUTHOR is to protect in the COPY uncertainty with which expressions such as “human the fundamental rights of all human beings without rights” and “fundamental rights” are used, including in consideration of their national origin. the Universal Declaration of the Rights of Man. Thus, a In addition, upon approving treaties on human rights, constitutional system of law can grant international human States submit to a legal order within which, for the rights laws constitutional rank, without that necessarily common good, they assume obligations not in relation giving all treaties such priority. to other States, but rather towards individuals, whether On the other hand, this favourable internal treatment nationals or foreigners. This point has been brought up of human rights treaties enables on-going and dynamic repeatedly, citing legal doctrine, and decided by the courts. feedback between constitutional and international law This jurisprudence has had at least one transcendental in the evolution of human rights. Constitutions are, to a legal consequence: the manner in which the principle certain degree, linked almost automatically to international of reciprocity is applied. Specifically, reciprocity is not developments in human rights through the references to applied to human rights treaties in a way that allows one international human rights law made by the constitutional State to allege another’s non-compliance with the human texts.3 rights treaty as a justification for its own violations of Taking into account that general principles of law these standards.1 This is so for the simple reason that such recognised by civilised nations are one of the acknowledged treaties have the particular feature that their rules make up sources of international law,4 it becomes reasonable to guarantees benefiting individuals. That is, obligations are expect the development of international law to take human imposed on States, not for their mutual benefit, but rather rights advances in constitutional law into account. The to protect human dignity. Therefore, States may not invoke generalised constitutional adoption of certain human rights their internal sovereignty to justify human rights violations laws can be considered an expression of the establishment because they have made a commitment to respect them – of a general principle of law.

At least on the subject of human rights, a real model of learning and self-awareness that takes into “international constitutional law” or “law of human rights” account the internalisation of values.7 It is not possible has emerged from the dynamic convergence between to have meaningful citizenship without democracy, nor constitutional law and international law, which mutually is it possible to have a substantially democratic model of aid each other in the protection of human dignity. The government without participatory citizenship. This being development of human rights law is, therefore, energised so, it is necessary to recreate certain premises in the field by both international and constitutional law. The interpreter of law towards the body of law intended, not only as an is forced to choose, by virtue of the principle of human instrument of social defence against abuses, but also as an advantages (pro homine), the standard most favourable to instrument to safeguard the inclusiveness of the citizenship the dignity of persons. On the material level, it is irrelevant concept. This should lead to the creation of a more human to speak about ranking the rules governing human rights, (more just and more democratic) model of development, since in each case the rule that most defines the status of by implementing concrete acts aimed at the full exercise of a right, freedom or guarantee will always be applicable. social rights, through all possible means and using available In material terms, therefore, it is not the status or ranked resources to the maximum extent. position of the rule that counts, but rather its content. The method of special and privileged constitutional Social Rights: the Need to (Re)Construct treatment of human rights treaties enables national judges Their Legal Foundation to apply, directly and with priority, those international Economic, social, and cultural rights (“social rights”) standards without having to necessarily engage in a debate are more suited to discussion in political and legal as to whether the constitution favours the theory of monism, philosophy than international law.8 They often, however, dualism or integration when addressing the relationship refer to matters related not to basic expectations of human between international and internal law. This does not dignity, but rather, to the satisfaction of vital needs and, mean that that debate does not have any relevance in the consequently, are stated as authentic fundamental human field of human rights, since it continues to be important. rights, as discussed above. As such they may be essential It does mean, however, that the privileged constitutional for promoting human development and for freedom, treatment of human rights, mentioned above, greatly democracy, justice and peace in the world, since they facilitates their application by national legal experts. If the are expressed as rights that act as the premises on which constitution is the applicable standard in which such treaties to exercise other, equally fundamental rights related to are integrated, it becomes clear that the legal thinker must freedom and autonomy of the individual. apply international human rights regulations internally.5 The discussion regarding the scope of guarantees of “Human rights” is a term that belongs to the spheres social rights often seems to be solely associated with of political philosophy and international law. Such rights persons in situations of greatest vulnerability within encompass guarantees, powers, freedoms, institutions or the social sphere. Generally, entitlement to social rights demands relative to primary or basic needs and include all is more related to the groups who cannot satisfy their human beings by virtue of the simple fact of their human basic needs (the “most needy”), for whom the access to condition. The guarantee of a life lived with dignity is thus necessary resources to satisfy those basic needs tends independent of particular factors, such as personal status, to be residual, or even non-existent.9 In truth, however, sex, gender, ethnicity or nationality. Human rights have social rights are of interest to everyone, given that they been defined as the conditions that allowAUTHOR an integrated involve COPY guiding principles in socio-economic policy within relationship to be created between the individual and various geopolitical spheres, marked by the intensification society, allowing individuals to be persons, identifying of the globalisation process.10 Such rights transcend local, with themselves and with others.6 regional, and even national limits. Goods protected by To speak of human rights, then, is to speak of making social rights are often involved in positional disputes. This rights accessible to groups of human beings who do fact highlights material equality, related to the existential, not usually have access to them. In other words, it is an social and culturally outlined minimum necessary. It is attempt to open up an alternative and real path leading focused not only on survival under conditions adequate to non-exclusive citizenship. This process is democratic for the dignity inherent to the individual human being, in the sense that it is participatory and oriented towards but also on guaranteeing the material conditions that allow a fundamental transformation of society. Implementing for the true exercise of civil and political rights related to this new path, of course, requires tremendous energy and the freedom and autonomy of individuals and necessary tenacity and also the capacity to conceptualise content and to promote participatory democracy and full citizenship. techniques that permit re-education about social rights and As pointed out above, the existential minimum their guarantees. corresponds to the set of material situations essential for Legal institutions can be instruments of social human existence with dignity. As such, the existential oppression if divorced from democracy. When coupled with minimum and the material core of human dignity reflect participatory democracy and the strength of citizenship, the same phenomenon. There exists, then, a tight linkage however, the law can become a collective institution of between social rights and the satisfaction of the individual’s freedom. All citizens should be involved in the production, basic needs, necessitating an egalitarian sense underlying interpretation and application of the rules. The legal the behaviour of the State. Its purpose is equality through model of action is clearly associated with a democratic the satisfaction of basic needs, without which many people

0378-777X/15/$27.50 © 2016 IOS Press 152 Environmental Policy and Law, 46/2 (2016) would be unable to achieve the level of human existence of the exercise of social rights and, with it, the true scope needed to enjoy individual, civil and political rights and of the democratic principle and of social behaviour. to participate fully in political life. Thus, contemporary discourse in regard to the legal, In its preamble, the International Covenant on and not merely political, character of modern constitutions Economic, Social and Cultural Rights (ICESCR) has not been extended to the scope of social rights. In recognises that, consistent with the Universal Declaration comparison to civil and political rights, the capacity to of Human Rights, the concept of the free human being, which social rights can be exercised has remained on liberated from fear and misery, cannot be accomplished a secondary level. In addition they are seen as lower unless conditions are created that permit each person to in priority as compared with proprietary rights such as enjoy his economic, social and cultural rights, as well as his property rights and the freedom of economic initiative. In civil and political rights. In this sense, access to the exercise a similar way, institutional (legislative and administrative) of citizenship is a fundamental right, the first of the rights, guarantees of social rights have sometimes been eroded in because without it, there can be no access to any others. the face of robust mechanisms for the protection of property What is in play here is the right of people to inclusion in rights. Jurisdictional authorities have contributed little a highly complex and competitive society, which tends to toward the removal of this tendency.12 More traditional exclude within a context in which human development has legal agents insist on the validity of the theory under which been severely undervalued. social rights are perceived as mere guiding principles or The progressive recognition of expectations related to programmatic clauses. They also sometimes espouse the social rights on both the constitutional and international idea that jurisdictional entities neither can nor should levels, and the integration of these rights into the internal do anything to guarantee them. They may reiterate the legal system of each country impose obligations, both recurrent idea that commitments are most often made on positive and negative, on public authorities. To a greater or the basis of a feasibility reservation or disclaimer (“where lesser degree, they also impose obligations on individuals. (or “to the extent”) possible”), as proof of this (new) lex To the extent, however, that social rights, with their mercatoria. economic and cultural variations, have formed part of our Far from being converted into an authentic constitutional legal heritage, they have also been the subject of strong social State, the traditional democratic State has often criticism. Conservative legal doctrine even now continues operated in a residual way and as a simple legislative and to debate whether social rights can be adapted within the administrative body. Its contributions have been limited to legal framework of human and/or fundamental rights. complementing and correcting the actions of the markets, Positive recognition of social rights has not proven keeping the poor in their place and, above all, ensuring to be useful for converting them into fully demandable public order and security in the service of those markets. expectations, nor into instruments truly suitable for With few exceptions, the “hard core” social policies satisfying the needs of the respective holders of these adopted in the traditional welfare State of the 1970s did not rights. The gap between recognised rights and their effective lend themselves to generalisation as regards guaranteeing exercise is too often cause for the words and discourse that social rights. In other words, the political context offers proclaim them to be empty and without any practical effect. no stable expectations, and therefore strong social policies In the last third of the 19th century and the first are unavailable to the powers-that-be. Public policies in two thirds of the 20th century, many countries saw an these areas have been designed as selective interventions. extraordinary expansion of institutionalAUTHOR behaviour devoted Their COPY effectiveness is related to the capacity with which to the development of social rights.11 In particular, broad certain segments can demand them. Rather than equalising systems of compensation and inclusion were established what is unequal, such social policies tend to operate as under the aegis of the so-called “Welfare State” or “Social discretionary (and therefore, revocable) concessions, not State”. Despite this development, the views of neoliberal serving as authentic measures for addressing poverty.13 counter-reformation movements of the 1970s became the This paper seeks to demonstrate that, despite the appeal common point of view of public authorities. This transition of social rights within the technical discourse, this devalued started with the great crisis in the hegemonic model that perception of them rests, above all, on myths forged by had guaranteed the growth of the central capitalist countries ideological prejudices. It attempts to refute the primary during the post-war period (1945–1973), and its effects myths conveyed in the political and legal mainstream that have extended until the current times and are revealed currently shape the perception of social rights and public to be more intense with each new crisis of capitalism. In policies. In synthesis, the current situation, in which social this climate, social rights are seen to represent the use of rights are “second generation” (or even “secondary”) rights the State’s power for the purpose of achieving material and therefore given lower priority than property rights, is equilibrium or excluding certain goods from the free untenable. We cannot speak about the enforcement of civil interaction of the markets. This labels those rights as and political rights, related to the freedom and autonomy “traps” that are burdensome, and an inevitable source of of individuals, without the guarantee of the existential undesirable bureaucratisation. It is thought that they tend to minimum of “social rights”. This concept of the “existential trim economic effectiveness, personal liberties, and market minimum” is a critical element of the social dialogue, freedoms. While social rights are not truly incompatible demanding wide participation of the beneficiaries of social with those freedoms, however, the evolving law of the rights in the preparation, application and evaluation of increasingly globalised market weakens the binding nature public policies. In this context, it seems clear that States

0378-777X/15/$27.50 © 2016 IOS Press Environmental Policy and Law, 46/2 (2016) 153 cannot guarantee social rights simply by establishing advanced experiments in agrarian democracy.18 When the exclusively civil (individual) and political rights. The US rebelled in 1776, its Declaration of Independence, concept of the free human being, liberated from fear and although not resolving the slavery issue, addressed and misery, cannot be accomplished unless conditions are recognised certain rights to be self-evident truths, such as created allowing each person to enjoy his economic, social the right to life and the pursuit of happiness. This list clearly and cultural rights as well as his civil and political ones. addresses the hopes that today are considered “social rights”. The Declaration did not include rights of ownership, which Convergence and Complementarity were elevated to the constitutional rank 11 years later, in the Historically, in both law and legal sociology, rights drafting of the US Constitution. identified as “social” are usually designated as follow-ons In France, the extension of social rights and rights – arising a generation later than that of civil and political of participation occupied a central place throughout the rights. In this construct, “civil and political rights” would course of the revolution. The Constitution of 1791, although obviously – although not primarily – include proprietary monarchic, included issues pertaining to the rights to public rights. Even for instructional purposes, this traditional education and assistance to the poor. In the 1793 Jacobin perception of social rights as rights of late onset is based Democratic Constitution, recognition of social rights for on preconceptions that are tendentiously restrictive and citizens questioned the inviolable nature of private property, deterministic in their effort to justify a devalued protection and was linked to the expansion of participation rights.19 of social rights. The declaration of rights contained in the preamble of the The modern history of social rights had its beginnings Constitution granted, together with equality of citizens’ in the great social revolutions of the 19th century. It is, rights, the rights to contribute to the law-making process however, also possible to verify the existence of a rich and to the appointment of legal representatives (Article “prehistory” marked by various institutional policies 29); the right to gain access to public education (Article directed at resolving situations of poverty and social 22); and described the obligation of the State to institute exclusion that predated the actual emergence of the modern public aid needed for the subsistence of its more vulnerable European State and that are definitely similar to modern citizens (Article 21). All of these rights were protected by demands in terms of social rights. mechanisms of social guarantees relying upon the actions The expectations that correspond to social rights, of all, to guarantee each person’s enjoyment of his rights along with the mechanisms and programmes intended for (Article 23), as well as to revolt in the event that such rights intervention within the social sphere, have long existed. In were violated by the government (Article 35): “Quand le medieval and ancient times, whether or not they belonged gouvernement viole les droits du peuple, l’insurrection est, to the State, such institutional mechanisms existed, clearly pour le peuple et pour chaque portion du peuple, le plus directed at fulfilling the needs of vulnerable individuals.14 sacré des droits et le plus indispensable des devoirs” (when At times, such mechanisms were egalitarian,15 while, at government violates the rights of the people, insurrection other times, directed at resolving issues of exclusion in a is, for the people and for each segment of the people, their blatantly authoritarian way (e.g., forcing individuals to (re) most sacred right and most essential duty). enter exploitative labour relationships).16 The revolutionary cycle that began in 1848 was, perhaps, With the rise of modern States, that contention between the greatest turning point in the history of the demand conservative and preventive policies and egalitarian for social rights. The existing structural contradiction policies recurs. Frequently, the mechanismsAUTHOR aimed at between COPY generalising civil, political and social rights, providing job centres and relief to the poor were cut from while continuing to maintain the tendentiously absolute the same cloth as those policies of public order intended nature of private property and contractual freedoms arose to control the conditions for perpetuation of productive clearly in those movements.20 In France, after the revolt of structures. 1848, the Constitution of November kept the social issue Initially discretional, aid to individuals in conditions of alive in its preamble by establishing the duty of the Second greater vulnerability within the social sphere, in many cases Republic to ensure needy citizens received subsistence, by prompted tangible benefits that reflected claimable rights. providing them with work suited to their capabilities or by During more egalitarian episodes of modern revolutions, providing assistance to those unfit for work. The events of claims of rights to assistance and to access to scarce or 1848 and the brief experience of the Commune of Paris in centralised resources (land and food) were recurring 1871, despite their limitations, played an essential role in demands of the more disadvantaged members of society, subsequent developments regarding social rights. almost always accompanied by a request for the extension There followed an intense cycle of social conflict of the rights of participation. that extended from the last third of the 19th century into In England, for example, the claim for rights of the mid-20th century. Thereafter, States and their legal participation and access to land and social assistance decisions experienced an open process of (more or less was a common element in the charters motivated by intense) socialisation that affected different branches of the “levellers” and “diggers” over the course of the law. Labour law emerged to address the enormous social 17th century.17 In their colonies in North America, for problems originating in the Industrial Revolution. These example, assistance to the vulnerable, distribution of land, developments stimulated increasing levels of intervention and the establishment of participation were mentioned in by the State in the labour market for protectionist purposes, various charters, some of which included anticipation of which tended to inhibit abuses of capital and to make the

0378-777X/15/$27.50 © 2016 IOS Press 154 Environmental Policy and Law, 46/2 (2016) material expansion of social rights viable. These processes An understanding of this dichotomy enables evaluation were aided by the institutionalisation of previously of certain policies as conservative and preventive relative unthinkable rights, such as the rights to join a union, to to the limited recognition of social rights. On the other strike and to engage in collective bargaining. However hand, as other substantially egalitarian and democratic deeply these developments were entrenched in labour law, policies are developed, the simultaneous satisfaction of they were also recognised as providing a basis for other civil, political and social rights can be enabled. legal expressions and models organised around the bases Expanding on the theory of a linear trajectory of of collective action, the search for parity and the linkage “generations” of rights, it is possible to discern the of social rights to disadvantaged groups. By abandoning multiplicity of ways, scales and aspects related in a the idea of guilt, civil law went on to allow criteria of substantial way to the claim of social rights. It underscores objective responsibility for damages caused by private the truly simultaneous, convergent and complementary parties who enjoyed a special position of power within the nature of the call for civil, political and social rights. All context of commercial relations or consumption. Finally, distinctions disappear between institutional and extra- the penal code moderated its deeply repressive function, institutional means for claiming human rights and between incorporating criteria of re-socialisation. local, regional, national and international scales, as well as In the post-war period, social rights concepts were distinctions between individuals and citizens as intended established with the Keynesian pacts21 and with a relative beneficiaries of social rights. Social rights can only be consolidation of different spheres of the welfare State that considered as essential in order for us to give material had been created in prior decades. Civil and political rights content to individual and political rights connected with were extended to sectors previously excluded from their freedom and the autonomy of individuals and citizens. influence, and specific rights were recognised in economic, Paradoxically and simultaneously, the latter are also social and cultural fields that safeguarded hopes and essential to ensuring social rights. expectations relating, for example, to issues concerning All human rights are indivisible and interdependent. work, education, health and housing. Violations of social rights, in this context, are often related It is clear that, if we can conceive that social rights to violations of civil and political rights in the form of have been won – especially by the working class – repeated denials. In the same way that it is necessary to we should recall that the expansion of social rights coordinate efforts in favour of the right to education in corresponds, concomitantly, to the objective needs of order to fully enjoy the right of freedom of expression, it the capitalist system, by permitting the reproduction and is necessary to take measures directed at reducing infant qualification of the labour force. At the same time, that mortality, hunger, epidemics and malnutrition, in order to expansion has extended the possibilities of consumption. enjoy the right to life. In the post-war period, States either did not truly reveal themselves as protectionist or democratic or did so in an Interdependence and Indivisibility attenuated manner. Nevertheless, the regulation of the Turning from the history, which often leads to labour market improved, as did the access to consumer assumptions that there is a trajectory in the generations of markets and to basic services for an important segment rights, it is important to consider the legal grounds on which of society. At the same time, States may have permitted social rights rest. This provides a basis for evaluating the the proliferation of arbitrariness, letting themselves be idea that such rights are relegated to a subordinate position colonised by bureaucratic and commercialAUTHOR powers, and in relation COPY to traditional civil and political rights. enabling decisions that excluded or stigmatised vulnerable There are different approaches to this view. Firstly, groups. some maintain that civil and political rights are very Despite their origins in the great social revolutions closely related to interests that are, in fact, fundamental of the 19th century, social rights generally acquired to everyone, including life, liberty, privacy, and by that constitutional status only after the Second World War.22 (or with that), dignity itself, whereas social rights are not. One may also discern a more complex history that leads to A second approach posits that civil and political rights different conclusions than those in the traditional literature. are restricted to values and principles such as freedom In some situations, the expansion of social rights was and security, whereas social rights are restricted to the vindicated simultaneously with the expansion of civil and promotion of equality. Those accepting such propositions political rights, and the restriction of proprietary rights and are forced to choose either to be concerned about promoting contractual freedoms. civil and political rights, relegating the idea of promotion In summary, the idea that social rights are recent and of equality to a secondary level, or to emphasise social thus always secondary to more traditional and standard rights, relegating the guarantee of personal liberties to a fundamental, civil and political rights minimises the secondary level. breadth and complexity of the history of those rights. This contradictory perspective is based on ideological Nevertheless, this view epitomises the profound differences premises that include obvious discursive inconsistencies. existing between social policies and the demand for social The axiological grounds of all rights lead to the idea rights. The former (social policies) are viewed as more or of equality. The right’s egalitarian structure converts it less discretionary and expected to vary according to the from a right grounded in value terms and allows such economic, cultural and political events of the time. By categorisation. In other words, the fact that it refers to contrast, social rights are more or less stable over time. interests, which have the tendency to be generalised

0378-777X/15/$27.50 © 2016 IOS Press Environmental Policy and Law, 46/2 (2016) 155 or inclusive and accordingly are truly inviolable and community reached the point of recognising them, both inalienable, enables this categorisation. Nevertheless, the in the ICESCR and the International Covenant on Civil principle of equality is a relational principle, and questions and Political Rights. At the time, States considered about the subjects and the objects of equality admittedly ratification of one or the other to be a matter of ideology have different answers. – prioritising either civil and political rights, along In modern States, many civil, political and social with liberty, or economic and social rights, along with rights have been linked to citizenship. This has emerged equality. After the Cold War, the fall of the Soviet Union as a clearly inclusive idea. Currently, in the contest of and the Eastern European Communist bloc produced migrations and mass internal and external relocations, the objective conditions for adopting the theory of it has been converted into an authentic exclusive and the indivisibility and interdependency of all rights excluding status of privilege. Somewhat tendentiously, as eventually claimed by the Vienna Declaration and international law seeks to attribute human rights to persons Programme of Action adopted by the World Conference generally, and not only to citizens, thus introducing a key on Human Rights in Vienna (1993). idea on which to expand egalitarian understanding of the One last apparent tension between equality and subject of rights. Reducing the categorisation of rights to diversity should be pointed out regarding the philosophical an excluding axiological foundation, we can easily verify and normative perception of social rights: the theory that that, in reality, all rights – civil, political and social – are social rights stand guard over a type of social homogeneity, based on the notion of equal satisfaction of certain needs to the detriment of pluralism and cultural diversity. If held to be basic for all people, as well as their equality, we accept the fact that all human beings are intrinsically dignity, freedom and security. related through equality, dignity and freedom, we can Another debatable approach refers to social (as opposed easily conclude that social rights, as instruments enabling to civil and political) rights as being intrinsically related individuals to participate in social life and choose their own to equality, and not to dignity. In essence, the principle of life plans – i.e., the very notion of liberty – carries within dignity is consubstantial with the individual’s right to object itself the kernel of pluralism and cultural diversity.25 That to the imposition of oppressive or humiliating conditions being the case, civil, political and social rights are based of life,23 and constitutes a central element in the modern on the need to satisfy the broadest right to equal liberty and justification for human rights. The recognition of human equal diversity of all people. rights is assumed in any democratic debate on rights held To summarise, the idea of axiological subordination of to be fundamental, including those discussions concerning social rights to civil and political rights cannot be sustained. their correct categorisation as such. In normative terms, the On the contrary, all of these rights can be considered specification of what we could consider a “dignified life” or indivisible and interdependent, heirs to a common “undignified life” varies.24 From a utilitarian perspective, foundation: equality in dignity, liberty and diversity of the idea of dignity – or a dignified life – is best related to a all people. set of conditions that allows the physical and psychological integrity of the individual to be maintained, and that seeks How Fundamental Human Rights can be to minimise situations of unease, injury or oppression. Determined and Protected From a constructivist perspective, the idea of dignity is Having abandoned the technical/linear approach to more tightly related to autonomy and free development of the generations of rights, under which social rights are personal identity, something closer to whatAUTHOR we would call seen asCOPY coming after civil and political rights, some “human development”. From that perspective, the principle individuals are convinced that, civil, political and of dignity is more closely related to the satisfaction of social rights all have a common foundation, despite the interests required for each person to freely pursue his usual philosophical and normative perception of the objectives and life plans, and participate in the construction foundation of social rights. of a social life. For others, however, the two categories are perceived These perspectives are not necessarily exclusive or as structurally distinct. They see in social rights structural contradictory. The avoidance of situations of unease, factors that influence notions about how they may be injury or oppression can have relevance, in legal terms. safeguarded. Among other things, those avoidance actions are the premise on which to seek the free development of status Different Degrees of Difficulty: Is this the and, as a result, participation in public affairs. A greater Difference between Social Rights and Civil or lesser degree of assurance of equal dignity depends, and Political Rights? therefore, not only on the preservation of physical and In this context, civil and political rights are psychological integrity, but also on the very possibilities traditionally identified as abstentions – non-onerous of exercising these personal freedoms and, thus, on the rights that are claimable and easily protected – while democratic nature of society. social rights are perceived as rights that could impose From this standpoint, approaches where civil and a burden. Social rights are seen as indefinite rights, political rights (rights related to liberty) stand in requiring action – rights that are exercised indirectly and opposition to social rights lack coherence. The distinction dependent upon criteria of reasonability or availability between rights of equality and rights of liberty prevailed (subject to a reservation regarding what is possible during the so-called “Cold War”, when the international – a “feasibility disclaimer”). They are thought to be

0378-777X/15/$27.50 © 2016 IOS Press 156 Environmental Policy and Law, 46/2 (2016) dependent on economic contingencies in a clear context 1949) as a corollary of the Constitution with normative of positional struggles. In and of themselves, social power and of the minimum or essential content of rights rights serve as mere guiding principles or programmatic recognised therein. It was extended to various other clauses. Given their collective dimension, certain forms legal systems, e.g., the Portuguese, Spanish, Colombian, intended to safeguard social rights would not be possible, Brazilian and French. suggesting that jurisdictional entities could do nothing The idea of non-regression does not remove the to guarantee them. possibility that the State will, within the context of its social The claim that civil and political rights are traditionally policies, promote reforms that are, at first sight, regressive. expressed as abstentions and therefore are inexpensively For instance, non-regression does not necessarily prevent (“cheaply”) and easily safeguarded, however, is a vast the (re)assignment of resources, based on the need to oversimplification. Civil and political rights cannot all include certain groups who are in conditions of greater be characterised solely as abstentions, nor can social vulnerability. Public authorities have only to demonstrate rights be characterised solely as positive rights requiring to the citizens that the changes that they are seeking to intervention. The right of property, for example, demands promote will be beneficial, in the final analysis, to the not only the absence of arbitrary interference, but rather greater protection of social rights. a wide number of public benefits imposing governmental The duty of non-regression is related to the duty burdens, ranging from the creation and maintenance of of progressiveness. This principle authorises public registries (e.g., of automobiles, real estate, and industrial authorities to adopt programmes and policies intended property) to the creation and maintenance of security to develop social rights in a gradual way, to the extent forces and jurisdictional entities to enforce compliance that there exist available resources (i.e., subject to with contracts involving property. In a similar manner, the feasibility disclaimers), but does not allow States to defer political right to vote contains a broad and burdensome the satisfaction of established rights indefinitely. On the infrastructure that includes minimal issues (ballot boxes, contrary, it requires specific actions, beginning with the act paper ballots, etc.), as well as others that are more complex of demonstrating that the maximum effort is being made (polling clerks, counting devices, recounts and registries, and that the maximum (human, financial, technological, logistics, jurisdictional entities, etc.). etc.) resources available are being used in order to satisfy, Likewise, social rights, although usually associated at least, the essential content of social rights and to find with social benefits, also entail duties of abstention. The solutions, on a priority basis, for groups in situations of right to housing requires respect, not only for the demand greatest vulnerability. of policies that allow access to housing, but also the right In summary, if the feasibility disclaimer can justify not be arbitrarily evicted and the freedom from abusive restriction of certain rights to citizens, then those in clauses in rental agreements or real-estate purchase power could always use it to demonstrate that they are contracts. The right to work is fundamentally related to making the maximum effort possible. As noted above, protection from arbitrary dismissal – a duty of abstention all civil, political or social rights are (to a greater or on the part of companies. lesser degree) burdensome. What is at stake in reality Similar to social rights, all civil and political rights is how to decide – with what priority – how to assign entail a distributive dimension, the satisfaction of which the resources to these ends in all fields (financial, requires multiple financial and human resources. It is thus personal, technological, etc.). The clear mandate for not only social rights that imply costs forAUTHOR the State. What is those COPY in power is this: if resources are limited, the needs usually at stake, therefore, is not how to guarantee “costly” of the most vulnerable groups should have priority, in rights, but rather to decide how and with what priority the proportion to their level of vulnerability. In this context, resources necessary to satisfy all rights will be allocated.26 the justification for a feasibility disclaimer entails a Whether civil, political or social, all rights establish comparative judgment between what cannot be done claimable obligations of abstention or respect, as well as and what is being done and always demands that it be obligations that require intervention or satisfaction from demonstrated that maximum resources have been used. the public authorities. In addition, all impose obligations If there is a tax surplus, for example, the exposure of concerning their protection against violations arising from individuals to degrading conditions of life is not justified acts or omissions by private individuals. on the basis of the reserve of the possible.

Non-regression Vagueness One of the primary obligations that social rights generate Social rights are usually characterised as “vague” for public authorities involves respect towards a duty or indefinite rights. Formulations such as the “right to grounded in the principle of non-regression. According to work” tell us little about the content of that right i.e., the the Committee on Economic, Social and Cultural Rights,27 obligations derived from it. For this reason, social rights the ICESCR obligates public authorities to refrain from are traditionally phrased in terms of specific obligations adopting policies or rules that would, without justification, of outcome, leaving the particular instruments of action erode the status of social rights in the country. That same needed in order to achieve them undefined. Civil and principle of irreversibility of social achievements has been political rights, on the contrary, not only stipulate the articulated in constitutional terms since the approval of the outcome to be pursued, but also indicate the means to Basic Law for the Federal Republic of Germany (Bonn, avoid violating them.

Once again, this argument is not supported to the consisted of those goods and services needed for a life extent that it has been used to justify the conclusion that with dignity, above all in situations of urgency, extending social rights are rights that are difficult to protect. A degree the scope of this minimum to the definition of rights as of uncertainty, even in semantic terms, is inherent, not they pertain to health, housing and social security. Thus, only in legal language, but in all language itself. Human neither the determination of the content of social rights, and/or fundamental rights guaranteed in international the stipulation of actions required to satisfy them, nor the treaties or constitutions exhibit uncertainty derived from identification of the individuals involved, are issues that legal pluralism. An excessive regulation of content and fall outside the scope of jurisdictional bodies. of consequential obligations of a right could cut off the Social rights obligate State authorities, whether through democratic space from the social dialogue in regard to its the executive, legislative, or even the judicial branch, but scope. Thus, relative openness in the creation of social rights they can also obligate private parties, such as employers, does not have the effect of making them unintelligible, nor service providers in the area of healthcare or education, and is that uncertainty an insurmountable barrier. retirement and pension fund administrators. This linkage Terms associated with traditional civil rights, such as of private parties to fundamental rights can be the product honour, property and freedom of expression, are not less of recognition expressed by the constituent legislator or obscure than those commonly found within the sphere it can even derive from different legal principles – from of social rights. All rights are provided with a “core of the prohibition against discrimination and good intention certainty”, circumscribed by linguistic convention and clauses up to the principle of protection of the weakest hermeneutical practices that are dynamic rather than static. contractual party or of the social function of property. For this very reason, they lend themselves to the possibility Obligations pertaining to social rights are not projected of interpretive development and of “grey areas”. Greater on all private agents under all circumstances, because not efforts to eliminate uncertainties are made in legislative, all private individuals responsible for providing goods and jurisdictional and doctrinal activity devoted to civil and services are in the same position of power and superiority in political rights. This does not reflect a greater structural regard to third parties. The degree of linkage to observation obscurity of social rights, but rather a deliberate and clearly and satisfaction of social rights by private parties is directly ideological choice. and proportionately related to their size, influence and Thus, nothing prevents the development of criteria or resources. indicators that outline a more appropriate meaning for a given social right. Establishment of such parameters or Summary of this Part indicators is more than desirable – it is absolutely essential In summary, then, all fundamental human rights, for monitoring compliance by the State with obligations whether civil, political or social, have a complex on the subject of social rights. It is critical, even for formulation, part proactive and part abstention. All are distinguishing whether non-compliance stems from a lack burdensome, in one way or another, and all are enforceable of capacity or from a true absence of political will. Such a through the courts. Undeniably, when dealing casuistically determination can help provide an answer to the question with a given right, certain elements can have a stronger of whether a situation indicates regression, stagnation or symbolic effect than others. Rights dealing with social progress on the subject of social rights. benefits, which require greater financial expenditure, are more difficult to guarantee than other rights that do Soft Law and Standards AUTHORnot require COPY such costs, either because of financial and Many of these criteria are what we call “soft law” – budgetary issues, or due to the conflictive nature in relation interpretive standards that, despite their legal structure, are to resources, in the context of positional disputes. Clearly, not mandatory in nature. Their invocation by the intended however, none of these problems is solely applicable to beneficiaries of those rights and their consideration by the social rights. All fundamental human rights, whether they public authorities could, however, help define the content are civil, political or social rights, bear these challenges. of the social rights and the obligations originating from Thus, no-one affirms today that, within a democratic them, whether for public authorities or private individuals. environment, freedom of expression entails free and In this sense, various courts have recognised the theory unconditional access by anyone, in any circumstance, to about the existence of minimum or essential frameworks all forms of the media, radio and television. Similarly, we on the subject of social rights that are mandatory for public cannot affirm, for example, that the right to housing or to authorities as well as for private agents, whether from healthcare would entail the automatic and unconditional the perspective of international law or under frameworks duty of public authorities to provide free housing or protected by the constitutional codes themselves. Despite medications for all persons and under any circumstances. the fact that social rights were not explicitly granted in the Basic Law of the FRG, for example, the German Final Considerations on Fundamental Constitutional Court understood that it is possible to derive Rights a law of “vital minimum”,28 whether linked to the principle Despite the various arguments denying it, the theory of the dignity of man, the concept of material equality, or claiming that social rights are structurally different from the social State. In a similar way, the Constitutional Court civil and political rights has had a strong impact on the of Colombia deduced in its Judgment T1150/2000 the right issue of guardianship of social rights. Social rights are to a vital minimum from the text of the Constitution, which traditionally seen as non-fundamental rights to be accorded

0378-777X/15/$27.50 © 2016 IOS Press 158 Environmental Policy and Law, 46/2 (2016) weaker protection, since they lack available mechanisms In current law, recognition of a right as fundamental, in of protection and guarantees analogous to those available and of itself, implies attribution to it of a minimum content in the context of civil and political rights. and, with that, the imposition of certain basic obligations on That approach implies that social rights would be the public authorities, including (or primarily) obligations addressed by legislatures and, therefore, their fulfilment of non-discrimination, non-regression and progressivism. would remain at the discretion of the authorities currently That does not really prevent the scope of certain laws from in power. These officials would decide what to do without depending on stipulations in codes of law. The Brazilian limits or restrictions on that discretionary power. On the Constitution of 1988, for example, developed the content other hand, this theory would also view social rights as not of social rights in a very meticulous way, as did the Italian being subject to the jurisdiction of the courts. No particular Constitution of 1947 and the Portuguese of 1976. The jurisdictional entity would be in a position to render South African Constitution of 1996 incorporates emerging decisions establishing remedial measures when confronted social rights, which go beyond traditional rights, such as the with violations by political powers or private agents. right to water. Others, such as the US Constitution, offer As noted, initially, and on an axiological level, a right only minimal regulation of social rights or relegate them is characterised as fundamental primarily by its claim to to merely implicit rights. Some constitutions stipulate in protect interests or basic needs linked to the principle of detail the obligations that recognition of a right entails for real equality. It is the nature of those interests that enable the public authorities and also for private agents, while them to be generalised to all persons. This is, in short, what others only allude to those obligations. The Constitution makes a right inalienable and non-waivable. In that sense, of Ecuador, for example, stipulates in Article 96 that “at fundamental rights, human rights and individual rights have least thirty percent of the budget from current revenue of analogous meanings. the central government is allocated to education and the From a dogmatic point of view, however, the situation eradication of illiteracy”. looks a little more complex. Along general lines, the rights If insertion into a constitutional text indicates the referred to as fundamental are those to which greater fundamental nature of a social right, however, it does not relevance can be attributed within a given legal system. constitute a prerequisite, given the principle of indivisibility This relevance can be measured from the inclusion of and the interdependence of all rights. Any constitution such rights into precepts of greater value under the scope that includes the principle of equality in matters of basic, of internal codes of law, such as constitutional codes or civil and political rights would raise, as an underlying international treaties and covenants. principle, a mandate of generalisation that would directly In that case, certain rights, which could be considered or indirectly require inclusion of the social rights linked to fundamental from an axiological point of view, are so them. This has occurred in various current codes of law that from a dogmatic perspective as well. That connection, do not explicitly recognise social rights or grant them the however, is not inevitable. Codes of law could incorporate status of fundamental rights. Thus, for example, the right discriminatory or excluding interests as fundamental. Thus, to decent housing has been logically inferred from other for instance, the US Constitution considers the right to bear rights, such as that of the inviolability of the home, privacy arms as fundamental, and the European Constitutional or private/family life. In the case of López Ostra v. Spain Treaty (2004) establishes the clear priority of market (1994), the European Court of Human Rights held that the freedom over social rights. public authorities had not asserted control over a polluting Over and against the theory, however,AUTHOR it is not, in industry COPY that negatively affected the health and safety of fact, the specific guarantees that allow a given right to persons living in the immediate surrounding area. It found be classified as fundamental. On the contrary, it is the that this lack of control constituted a violation of the right inclusion of a right into the positive body of law as to privacy and family life (rights to the environment, health fundamental that requires legal operatives to maximise and shelter were inter-related). the mechanisms needed to guarantee and protect it. From All rights, not just social, but also political and an axiological point of view, if we can say that a certain participatory, are rights created by legislatures in the equivalence exists between the expressions “fundamental sense that, for their full exercise, legislative intervention rights”, “human rights” and “individual rights”, then from is essential in one way or another. The law is a privileged a dogmatic perspective we can also say that there is a source of legal production, both by virtue of the formal definite equivalence between the expressions “fundamental legitimacy of the bodies from which it originates and rights” and “constitutional rights”. In this way, the potential due to its ability to be generalised in scope. As such it absence of legislative and jurisdictional guarantees of a constitutes a primary guarantee of the satisfaction of constitutional right – whether civil, political or social – does any rights. not lead to the conclusion that it is not fundamental. On the Similarly, all rights – civil, political and social – must contrary, it demonstrates the absence of compliance, or of be established by legislatures. This means, of course, sufficient compliance, with the implicit mandate governing that the manner in which they are legislatively expressed the behaviour of political and legal operatives. It is not that can vary in scope. Greater or lesser regulation certainly the right is not fundamental, but rather that the political can strengthen or weaken the possibility that the rights powers have engaged in behaviour that distorts that right or in question can be legally claimed through the courts. have failed to act. Such actions and failures de-legitimise the Regulation, in and of itself, however, does not prevent those claims that the right involved is not fundamental. rights from having at least a minimum content that lies

political, cultural, religious and legal implications, interrelated in a complex way, beyond the reach of the authorities currently in power and which developed in the last decades of the 20th century from a dramatic intensification is susceptible to some type of jurisdictional guardianship, of trans-national interactions that paradoxically, although they have been radically even in the absence of legislative regulation. transformed, have intensified hierarchies and inequalities. Santos, B.de S. 2005.A globalização e as ciências sociais. São Paulo: Cortez. The definition given to this The ICESCR maintains that public authorities have the term by Giddens is also valid: “intensification of worldwide social relations that duty to ensure at least the essential content of those rights, link distant localities in such a way that local happenings are shaped by events even in times of crisis or economic and political difficulties. occurring many miles away and vice versa”. Giddens, A. 1990. Sociology, at 64. Oxford: Polity. Likewise, various codes of law recognise the duty of States 11 When we speak of development, it is important to stress that not all to honour the minimum or essential content of rights development is social development, just as poverty is not an exclusively economic recognised in constitutions or international covenants and problem and economic growth is not development, since it is not enough to grow 29 economically in order to promote social development. Development is a synergistic treaties. That content is dependent upon the context in movement, which is confirmed in that class of social changes in which there are which such rights are applied and allows historic rights to modifications in human and social factors guaranteeing the stability of social systems: be updated on an on-going basis. This essential content does in systems that are highly complex and removed from equilibrium, as human societies not presuppose an abstract or transcendent understanding. are, the development only occurs when internal patterns (among the components of the whole) and external patterns (with the surrounding environment) of interaction The border between what we may consider essential or manage to install themselves, which better assure conditions of existence of the basic, and what we may characterise as additional or non- whole, in other words, of society itself. A society in which just a few individuals essential, is always moveable, historic and open. improve their living conditions, but in which the rest of the population – the majority – cannot manage to improve their general living conditions is not a society that is In any case, that minimum will always be a barrier that developed, even though it may be a society that is growing in economical terms. cannot be crossed, which requires a permanent delineation 12 Cf. Martín, C. de C. 2006. Teoría constitucional de la solidaridad, at 11. demanding real integration between justice and politics, and Madrid: Marcial Pons. 13 Analysing the policies of the war against poverty in Argentina and other between judges and legislators. Under any circumstances, regions in Latin America, Vuolo et al. note: “current policies ‘against’ poverty are and even in times of economic crisis, constitutional as poor as the intended beneficiaries of such policies. In reality, they are policies recognition of social rights entails recognition by the ‘of’ poverty, whose purpose is to administer and manage the poor, while keeping them in a socially static position so that they do not upset the operation of the rest existing authorities of a core that is untouchable even for of society”. Vuolo, R. et al. 2004. La pobreza de la política contra la pobreza, at jurisdictional bodies. As a result, none of those powers can 14. Buenos Aires: Centro Interdisciplinario para el Estudio de Políticas Públicas. fail to recognise social rights. All persons must be assured 14 Cf. Ritter, G.A. 1999. Storia dello Stato sociale. See Gaeta, L. and Carnevale, of them, especially those who find themselves in more P. (Transl.) History of the Social State, at 33. Roma: Laterza. 15 Among these, in this sense, one might include the assistance that guaranteed vulnerable positions. access to the public baths in the Athenian polis and the agrarian laws of Republican Rome, which ensured access to land or to a minimum quantity of food. In pre- Colombian America, the Incan empire was one of the first manifestations of a system Notes of social security, understood as a rational system of conjugation of collective effort 1 See, e.g., the Advisory Opinion of 28 May 1951 to the International Court of in order to provide a type of social security. The property system in existence at Justice on reservations to the Convention on the Prevention and Punishment of the that time provided for the cultivation of certain lands through common labour. The Crime of Genocide and Judgment of 7 July 1989 by the European Court of Human produce was directed at meeting the nutritional needs of orphans and those who Rights, in the case of Soering v. United Kingdom, n. 14038/1988. were elderly, ill or disabled, all of whom lacked the ability to be productive on their 2 Martin, C., Rodríguez, D. and Guevara, J. 2004. Derecho internacional de own. los derechos humanos, at 91. Mexico City: Fontamara. 16 See, e.g., laws on poverty, which, during incipient capitalism, tended to replace 3 Cf. Silva, R.M. 2002. Derecho internacional de los derechos humanos, at 374. the ancient ideas of charity and/or beneficence with the objective of re-education for Mexico City: Universidad Nacional Autónoma de México. work. As Castel points out, in countries of both Catholic and Protestant tradition, 4 Statute of the International Court of Justice, Article 38.1. the law recognised a distinction between the “deserving” poor (willing to work in 5 Cf. Graham, M.A. and Vega, J.C. 1996. Jerarquía constitucional de los tratados exchange for assistance) and the “undeserving” (devoted to vice and idleness, and, internacionales, at 42. Buenos Aires: Astrea. therefore, dangerous to society). Castel, R. 1995. Les métamorphoses de la question 6 Cf. de la Torre, H.M. 1996. Derechos humanos: dignidadAUTHOR y conflict, at 19. sociale: uneCOPY chronique du salariat, at 47. Paris: Fayard. Mexico City: Universidad Interamericana. According to Gallardo, the foundation 17 The Levellers were a group of radical dissenters in the English Civil War of human rights is the transfers of power that occur between social groups, as well (1642–1649) who called for the abolition of the monarchy, social and agrarian as the institutions in which they are articulated and the logic that inspires social reform, and religious freedom. The Diggers were an offshoot of the Levellers in relations. These transfers of power may or may not be effective and may be more 1649 who believed in a kind of agrarian communism in which common land would or less precarious. Gallardo, H. 2000. Política y transformación social: discusión be made available to the poor. About these popular revolts, Fontana emphasises that sobre derechos humanos. Quito: Tierra Nueva. For Flores, along a similar line of what was at stake, in reality, was not the civil right to property itself, but various thought, human rights are the practices and means by which spaces of emancipation alternative definitions of the right to property. Thus, claims made by the popular are opened, which incorporate human beings into the processes of reproduction classes clearly became social issues. Fontana, J. 1982. Historia: análisis del pasado and maintenance of life. Flores, J.H. 2000. El vuelo de Anteo: derechos humanos y y proyecto social, at 81. Barcelona: Crítica. crítica de la razón liberal. Bilbao: Desclée de Brouwer. 18 See, e.g., Massachusetts Body of Liberties, Article 79. This instrument was 7 Cf. Habermas, J. Facticidad y validez: sobre el derecho y el Estado democrático written in 1641 by the Reverend Nathaniel Ward. That clause stated, “If any man de derecho en términos de teoría del discurso. See Redondo, M.J. (Transl.) 2005. at his death shall not leave his wife a competent portion of his estate, upon just Factuality and validity, at 129. Madrid: Trotta. complaint made to the General Court she shall be relieved”. 8 Social rights are associated with systems of social security, health, education, 19 Supra, note 9, at 22. “[T]he expression ‘social rights’ appeared in a draft protection of the family, supply of food, etc., which were created and consolidated in submitted to the Convention of 1783 by the agronomist Gilbert Romme …. In its Europe and in many Latin American countries between the last third of the 19th century session on April 24, 1783, Robespierre, for his part, proposed to the Convention, in and the second post-war period; see Esping-Andersen, G. 1998. The Three Worlds of the name of ‘fraternity’, the need to moderate great fortunes through a progressive Welfare Capitalism. Princeton NJ: Princeton University. According to Abramovich and tax and to ‘make poverty honourable’, by guaranteeing everyone the right to freedom Courtis, they are the “fruit of the attempt to translate into expectations (individual or and existence”. collective),… legally supporting the access to certain goods configured in consonance 20 Tocqueville states about the period that “the French Revolution, which with the logic of this model”. Abramovich, V. and Courtis, C. 2006. Los derechos abolished privileges and destroyed all exclusive rights, has allowed one such right to sociales en el debate democratico, at 17. Madrid: Bomarzo. subsist and in an ubiquitous way: that of property ... Today, that the right of property 9 According to Pisarello, “this characterisation of social rights as rights which does not appear but as the last relic of an aristocratic world which has been destroyed are most needed explains that their exercise and enshrining by law tend to recruit … a political struggle will ensue between those who have and those who have not. adherents among those who possess an egalitarian sensibility”. Pisarello, G. 2007. The great battlefield will be property and the primary issues of policy will turn on Los derechos sociales y sus garantías, at 11. Madrid: Trotta. modifications, more or less profound, which will have to be introduced into property 10 Following Santos, the term “globalisation” is used in this article to identify law”. Tocqueville, A. de. Recuerdos de la revolución de 1848. Suárez Fernández, a multi-faceted, pluralistic and contradictory phenomenon, with economic, social, M. (Transl.) 1994. Memories of the 1848 Revolution, at 34–35. Madrid: Trotta.

21 [John Maynard Keynes (1883–1946) was an economist whose theories 25 On the link between capability and freedom and between capability and revolutionised macroeconomic thought, rejecting the free-market approach in diversity, see, e.g., Sen, A. 2006. El valor de la democracia, at 9 and 86. Barcelona: favour of a cyclical orientation that focuses on, inter alia, the effect of liquidity on Ediciones de Intervención Cultural. the relationship between economic output and aggregate spending/demand. Ed.] 26 On the idea that all rights have a cost, see Holmes, S. and Sunstein, C. 1999. 22 This statement is made without prejudice to the experiences of the The cost of rights: why liberty depends on taxes. New York: Norton. “constitutionalisation” of social rights in the historic constitutions of Mexico of 27 This is the body of independent experts that monitors implementation of the 1917 and of the Weimar Republic of 1919. ICESCR. 23 According to the Jacobin Constitution of 1793, resistance to oppression is a 28 [Frequently defined as “the living wage, a measure of physical and social consequence of all the other rights of man. needs”. Simmons, D. 2015. Vital Minimum. Chicago IL: University of Chicago 24 The principle of dignity of the person is inscribed in ethical and political Press. Ed.] traditions different from traditional liberal thought on socialist ideology. In positive 29 See, for example, Article 19 of the Basic Law of the Federal Republic of terms, it is recognised by Article 10.2 of the Universal Declaration of the Rights of Germany (1949) and Article 18 of the Portuguese Constitution of 1976. Man (1948) and in different constitutions, of which the following constitutions, in addition to the Brazilian of 1988, are examples: the German Constitution of 1949, the Spanish Constitution of 1978 and the Colombian Constitution of 1991.

REGIONAL AFFAIRS

UNECE: Aarhus Convention

Compliance Committee – Update on 50th and 51st Meetings – by Elsa Tsioumani*

This report provides an update on the deliberations and on the basis of Article 15 of the Convention, which requires outcomes of the Compliance Committee of the Convention Parties to establish arrangements for reviewing compliance on Access to Information, Public Participation in Decision- with the Convention. The Committee is composed of nine making and Access to Justice in Environmental Matters members serving in their personal capacity, nominated by (Aarhus Convention)1 at its 50th (6–9 October 2015) and Parties, Signatories and non-governmental organisations 51st meetings (15–18 December 2015). (NGOs), and elected by the MoP.4 It considers any submission, referral or communication brought before it Background AUTHORby Parties, COPY the Secretariat or the public respectively; and The Aarhus Convention, adopted in the framework monitors, assesses and facilitates the implementation of, of the UN Economic Commission for Europe (UNECE), and compliance with, the reporting requirements under the is a multilateral environmental agreement that takes a Convention. It reports on its activities at each ordinary MoP rights-based approach to environmental protection: it links and makes recommendations as it considers appropriate. environmental and human rights, as well as government Upon its recommendations, the MoP may decide upon any accountability and intergenerational equity, by awarding appropriate measures to bring about full compliance with procedural rights to members of the public of present and the Convention, providing advice and facilitating assistance future generations to live in an environment adequate to their to the Party concerned; making recommendations; issuing health and wellbeing (Article 1). The Convention provides declarations of non-compliance or cautions; suspending for the right of everyone to have access to environmental the special rights and privileges of the Party concerned; information that is held by public authorities; the right or taking any other non-confrontational, non-judicial and to participate in environmental decision making; and the consultative measures.5 right of access to justice with regard to decisions that appear to have contravened environmental law. As such, 50th Meeting the Convention focuses on interactions between authorities The 50th meeting of the Committee, held from 6–9 and the public in a democratic context.2 October 2015,6 was opened by Compliance Committee The Convention’s Compliance Committee was Chair Jonas Ebbesson (Sweden), who reported on the established by the first session of the MoP in October 20023 outcomes of a virtual closed session of the Committee held via the Skype online communications service. The virtual * LL.M., ERC Research Fellow, University of Edinburgh School of Law; meeting had addressed communications C/71 on Czech Lawyer, Thessaloniki, Greece; and regular contributor to EPL. Republic,7 C/88 on Kazakhstan8 and C/93 on Norway.9

The Committee continued deliberations and the communicants for comments. It in closed session on communications C/32 continued deliberations in closed session on the EU,10 C/81 on Sweden,11 C/89 on on communications C/81 on Sweden, Slovakia,12 C/92 on Germany,13 C/93 on C/91 on UK, C/93 on Norway, C/98 on Norway, and C/98 on Lithuania,14 and Lithuania and C/99 on Spain. It further reviewed progress regarding several other reviewed progress with regard to several communications. It entered into open other communications and considered the discussion on communications C/102 on preliminary admissibility of others. Belarus, C/104 on the Netherlands,15 and The Committee discussed C/105 on Hungary,16 all of them concerning communication C/96 on the EU22 and developments related to nuclear energy. C/106 on Czech Republic23 in open Communication C/102 alleges that session. Communication C/96 was activists and NGOs opposing plans to submitted by the European Platform construct a nuclear power plant in Belarus Against Windfarms and concerned the were subject to harassment and persecution, adoption by the European Commission in the form of detentions, arrests, bans to of a list of 248 key energy infrastructure enter the country, searches, and seizure of Jonas Ebbesson, Compliance Committee Chair projects to support implementation of information material. This amounts to a Courtesy: UNECE Directive 2009/28/EC on renewable violation of Article 3(8) of the Convention energy and its implementation at Member which states that persons exercising their rights in conformity State level through the National Renewable Energy with the provisions of the Convention shall not be penalised, Action Plans, allegedly in violation of public participation persecuted or harassed in any way for their involvement. requirements under the Convention. Communication Communication C/104 concerns the plant life-time extension C/106 alleges that Czech legislation and the practices of of the Borssele nuclear power plant in the Netherlands. administrative authorities and courts exclude the public Communication C/105 concerns the planned extension of from participation in decision-making procedures on the Paks nuclear power plant in Hungary. projects related to nuclear energy. The Committee further held a preliminary, largely On other business, the Committee discussed the draft procedural discussion on a statement by Belarus to the revised Guide to the Compliance Committee, agreed its fifth session of the Meeting of the Parties (MoP), held in procedure on new communications, and also discussed the Maastricht, the Netherlands, 30 June–1 July 2014.17 Belarus use of electronic tools in its working methods, in particular had requested interpretation of certain provisions of the the possibilities for increasing its use of audio and web Convention,18 concerning, among others: whether the size conferencing to facilitate management of its caseload. It of the land parcel falls under the definition of environmental agreed to expand use of audio and web conferencing with information; the conditions under which a request for respect to preparation of draft findings in closed session; but environmental information can be deemed “unreasonable” noted that such methods were not appropriate for the hearing according to the Convention19 when in general the public of communications or submissions, and representatives of is not required to state an interest; and how to apply the the Party concerned and the communicant were expected Convention provisions on public participation in decision to attend the hearing in person. making in terms of new and innovative activities.AUTHOR COPY The MoP decided on a procedure to be followed, which Notes would also apply to similar requests, according to which 1 The Convention was adopted on 25 June 1998 in Aarhus, Denmark, at the Fourth Ministerial Conference of the “Environment for Europe” process. It entered the Secretariat would prepare a draft response, consult with into force on 30 October 2001 and has 47 Parties as of 5 February 2016. See http:// the Compliance Committee and the Bureau, and submit www.unece.org/env/pp/ratification.html. the response to the Party concerned. In case of serious 2 See http://www.unece.org/env/pp/introduction.html. 3 Decision I/7 on review of compliance, Doc. ECE/MP.PP/2/Add.8. differences of opinion, the Bureau would report on the 4 The list of Committee members is available at http://www.unece.org/environ- matter to the Working Group of the Parties. mental-policy/conventions/public-participation/aarhus-convention/tfwg/envppcc/ aarhuscc-members.html. 51st Meeting 5 For additional information on the organisation and work of the Committee, 20 see Tsioumani, E., in cooperation with the Aarhus Convention Secretariat. 2013. Held from 15–18 December 2015, the meeting “Compliance Committee: Deliberations”. EPL 43(1): 46–50. heard from its Chair Ebbesson on the outcomes of a 6 The meeting documents are available at http://www.unece.org/environmen- virtual meeting held on 24 November 2015, which had tal-policy/conventions/public-participation/meetings-and-events/public-participation/2015/fiftieth-compliance-committee-meeting-under-the-aarhus-convention/fif- continued deliberations on communications C/71 on tieth-compliance-committee-meeting-under-the-aarhus-convention.html#/. The final Czech Republic, C/92 on Germany, C/93 on Norway and report (advance unedited version) is available at http://www.unece.org/fileadmin/ C/99 on Spain.21 DAM/env/pp/compliance/CC-50/CC50_report_advance_unedited.pdf. 7 Documentation regarding communication ACCC/C/2012/71 on Czech Republic The Committee concluded its draft findings, in closed is available at http://www.unece.org/envenv/pp/compliancecommittee/71tablecz.html. session, with regard to communication C/32 on the EU, 8 Documentation regarding communication ACCC/C/2013/88 on Kazakhstan C/71 on Czech Republic, C/89 on Slovakia and C/92 on is available at http://www.unece.org/env/pp/compliance/compliancecommittee/88tablekaz.html. Germany. Following finalisation of minor points via an 9 Documentation regarding the communication ACCC/C/2013/93 on Norway is electronic decision-making procedure, the Secretariat available at http://www.unece.org/environmental-policy/conventions/public-partici- would send the draft findings to the Party concerned pation/aarhus-convention/tfwg/envppcc/envppcccom/acccc201393-norway.html.

10 Documentation regarding communication ACCC/C/2008/32 on the EU 17 The report of the meeting is available at http://www.unece.org/fileadmin/DAM/ is available at http://www.unece.org/env/pp/compliance/compliancecommit- env/pp/mop5/Documents/Post_session_docs/ece_mp.pp_2014_2_eng.pdf. See tee/32tableec.html. Tsioumani, E. “Parties Adopt Maastricht Declaration”. EPL 45(1): 27–31. 11 Documentation regarding communication ACCC/C/2013/81 on Sweden 18 The statement by Belarus is available at http://www.unece.org/fileadmin/DAM/ is available at http://www.unece.org/env/pp/compliance/compliancecommit- env/pp/mop5/Statements/MoP-5_7a_Belarus_statement.pdf. tee/81tablesweden.html. 19 Article 4(3)(b). 12 Documentation concerning communication ACCC/C/2013/89 on Slovakia 20 The report of the meeting, in a draft unedited version, is available at http://www. is available at http://www.unece.org/env/pp/compliance/compliancecommit- unece.org/fileadmin/DAM/env/pp/compliance/CC-51/ece_mp.pp_c.1_2015_9_ad- tee/89tableslovakia.html. vance_unedited.pdf. The meeting documents are available at http://www.unece. 13 Documentation concerning communication ACCC/C/2013/92 on Germany org/environmental-policy/conventions/public-participation/meetings-and-events/ is available at http://www.unece.org/environmental-policy/conventions/ public-participation/2015/fifty-first-compliance-committee-meeting-under-the-aar- public-participation/aarhus-convention/tfwg/envppcc/envppcccom/ac- hus-convention/fifty-first-compliance-committee-meeting-under-the-aarhus-con- ccc201392-germany.html. vention.html#/. 14 Documentation concerning communication ACCC/C/2013/98 on Lith- 21 Documentation regarding communication ACCC/C/2014/99 on Spain is avail- uania is available at http://www.unece.org/environmental-policy/conven- able at http://www.unece.org/environmental-policy/conventions/public-participa- tions/public-participation/aarhus-convention/tfwg/envppcc/envppcccom/action/aarhus-convention/tfwg/envppcc/envppcccom/acccc201499-spain.html. ccc201398-lithuania.html. 22 Documentation regarding communication ACCC/C/2013/96 on the EU is 15 Documentation concerning communication ACCC/C/2014/104 on the available at http://www.unece.org/environmental-policy/conventions/public-partici- Netherlands is available at http://www.unece.org/environmental-policy/con- pation/aarhus-convention/tfwg/envppcc/envppcccom/acccc201396-european-union. ventions/public-participation/aarhus-convention/tfwg/envppcc/envppcccom/ac- html. ccc2014104-netherlands.html. 23 The communication ACCC/C/2014/106 on Czech Republic is available at 16 Documentation concerning communication ACCC/C/2014/105 on Hungary is http://www.unece.org/fileadmin/DAM/env/pp/compliance/C2014-106/Communica- available at http://www.unece.org/environmental-policy/conventions/public-partici- tion/Communication.pdf. pation/aarhus-convention/tfwg/envppcc/envppcccom/acccc2014105-hungary.html.

AEWA/MoP-6 Protecting Migrating Water Birds

Commemorating the 20th anniversary of the Agreement the conservation and sustainable use of waterbirds. The on the Conservation of African-Eurasian Migratory 2015 Individual Award was presented to Abdoulaye Waterbirds (AEWA), the Agreement’s Sixth Meeting of Ndiaye, for his work on wetland management and bird the Parties (MoP-6) was convened in Bonn, Germany conservation across Western, Central and Eastern Africa. from 9–14 November 2015 under the theme “Making The Institutional Award went to the Association Inter- Flyway Conservation Happen”.1 The meeting focused on Villageoise du Ndiaël, for floodplain restoration efforts performance in achieving longer-term planning, as well near the Ndiaël special wildlife reserve – a Ramsar site as a range of relatively standard issues addressed by most in Senegal. CoPs and MoPs, such as inter-convention cooperation Later in the meeting, the CMS-led Migratory Species and synergies, as well as budgetary and financial matters. Champion Programme also awarded special honours. In this case, three Migratory Bird Champion Awards were Background AUTHORbestowed: COPY AEWA was negotiated and adopted under the auspices • the Norwegian Government was recognised for of the Convention on the Conservation of Migratory supporting the conservation of the Lesser white-fronted Species of Wild Animals (CMS) – one of a growing goose; number of agreements and memoranda of understanding • the European Commission, for its actions to combat (MoUs) fostered by that convention. It was an innovation, the illegal killing of birds; and when adopted, because it did not focus solely on a single • the German Government, for its long-term efforts to species targeting a known group of countries within that reconcile energy sector development with migratory species’ migratory range (“Range States”), as contemplated animals conservation. by CMS, and demonstrated in the other CMS-fostered Agreements and MoUs at the time. Instead, AEWA’s In addition, a formal celebration of AEWA’s 20th focus encompasses all migratory waterbirds of Africa anniversary featured recognition of its uniqueness and and Eurasia, giving it a range of coverage across four successes. continents. The Convention currently includes 75 member States, and identifies 121 potential Range States, including Political, Administrative and Financial 54 African States, 17 Asian States, 49 European States and Matters one North American range State (Canada, which is not Communication Strategy currently a member).2 Communications and awareness are high-priority matters for AEWA, given the number of impacts on Recognition of Important Contributions waterbirds caused by actions that are not directly aimed at MoP-6 began on a hopeful note, with recognition waterbirds (the use of lead shot in hunting small animals, of individuals and institutions for their contributions to fishing nets and practices that harm waterbirds, etc.).

MoP-6 adopted a new Communication Strategy, which is described as “feature[ing] a more global perspective and confirm[ing] AEWA’s relevance to the SDGs and Aichi Biodiversity Targets”.

New Official Translation At the meeting, it was also noted that a new and more accurate official version of AEWA’s text in Arabic is under development and nearing finalisation.

MoP Operational Arrangements Some concerns arose in the course of the MoP’s relatively standard item regarding the selection of membership on the Standing Committee. After the Secretariat’s presentation of nominees had been formally adopted, Norway, as chair of the Committee, stated that Ghana and Uganda should AEWA Executive Secretary Jacques Trouvilliez and Ward Hagemeijer of Wetlands not be included in the Committee, having served their International, cutting the cake to celebrate the 50th anniversary of the International six years each. The delegations of Uganda and Ghana Waterbird Census objected, raising a challenge based on the wording of the Courtesy: IISD/ENB (www.iisd.ca/unep/aewa/mop6/11nov.html) MoP-2 Resolution on this issue.3 The Standing Committee members from Uganda and Ghana noted that although change, but these issues are more appropriately addressed they had taken up service on the Committee during the under the heading “Conservation Matters”, infra. intersessional period after MoP-4, they had only been elected at MoP-5. They cited the language of the Resolution Progress on Existing Action Plans and that states that each Standing Committee member’s term Strategies of office “shall expire at the close of the second ordinary Possibly another indication of AEWA’s difference and session of the MOP following that at which they have been success can be seen in the fact that MoP-6’s discussions nominated”.4 Reading this literally, they stated their belief on planning and strategies focused on the progress to date that their terms should not expire until the end of MoP-7. on existing plans, rather than either drafting new ones or Norway, however, stood by the interpretation which viewed editing the old in detail. Reports on the implementation the Resolution as stating that no member should serve for of various planning instruments were able to identify more than six years. successes, despite funding deficiencies. When asked for a legal ruling, UNEP indicated that Among the challenges noted was a lack of full it would only do so if all Parties wished. Given that the national reporting by all members, but even here, the fact African countries strenuously objected to any request for that 55 percent of its membership has submitted reports such advice, the matter was left to the Parties. Citing the would make AEWA the envy of many, perhaps most, MoP Rules of Procedure (which require that two-thirds of other MEAs. A review of the national reports received the delegations present must agree before any matter that indicates that States need to work harder in the following has already been decided may be reconsideredAUTHOR in the same previously COPY agreed AEWA target areas: the development meeting),5 the MoP Chair then called the discussion to an and implementation of national Single Species Action end, with Norway indicating that at MoP-7 it would seek Plans; phasing out the use of lead shot; and the AEWA a revision of the Resolution. Communication Strategy. Also discussed were progress to date on AEWA’s Awareness of and Cooperation/synergies with the International Implementation Tasks 2012–2015 and its Actions of Other Conventions Implementation Review Process. The latter is designed to AEWA’s operational approach has always included an provide factual data on the impact of human activities on effort to be aware of and to work with other multilateral migratory waterbirds. Both activities are reportedly moving environmental agreements (MEAs) and MoUs. Following forward, despite suffering heavily from lack of funding. this standard, MoP-6 received comprehensive reports on the resolutions of various MEA CoPs and MoPs, with particular Budgetary and Financial Matters emphasis on such outcomes from CMS’s recent CoP-11 The financial and budgetary discussions predictably and Ramsar’s CoP-12. A resolution adopted in the context emphasised the lack of sufficient funding, and calls for of these reports focuses on “Synergies within the CMS contributions. In addition, the budgetary discussion Family” of instruments – which, predictably, stopped short included mention of the establishment of national-level of any unification. In particular, it clearly signalled once Migratory Waterbird Funds, and debate about whether it is again the strong feeling of independence within AEWA, appropriate to apply the UN Scale of Assessments in setting stating once again that the AEWA Secretariat should not the Parties’ annual contributions, in light of the fact that be merged with that of CMS. AEWA is not a global agreement. Ultimately, the budget Also related to inter-Convention synergies, MoP-6 adopted included no increase over the previous budget, and considered the manner in which it addresses climate continued to apply AEWA’s adjusted scale of contributions.

Conservation Matters matters stress the importance of advance awareness, Predictably, the scientific and technical matters facing environmental impact assessment and strategic impact MoP-6 were more easily resolved than the political and assessment procedures early in any effort to plan or develop administrative ones. The species annexes, for example, responses. The MoP also adopted a separate resolution on were changed mostly in ways that reflected scientific climate change adaptation measures for waterbirds. agreement as to taxonomic issues. In this connection, the final resolution noted that 11 AEWA species had also been Conservation and Sustainable Use added to the IUCN Red List.6 In addition to the foregoing, the MoP adopted resolutions encouraging and supporting on-going conservation efforts, Conservation Status including references to legislative work; coordination with A very interesting contribution was the AEWA AEWA’s planning documents and statistical overviews; and conservation status report,7 presented by Wetlands monitoring harvests and other species mortality. Much of International. This report assesses the quality of available this work highlights useful technical guidance and analysis information, notes some areas in which waterbird developed during the most recent intersessional period and populations are declining, and compliments AEWA on before, and encourages monitoring and reporting to enable its contribution, attributing to its efforts the fact that the further improvement of those resources. proportion of waterbird populations designated as “in decline” has not increased over the past 20 years. In the Action Planning and Implementation words of the presentation, “action plans indeed work”. Consistent with its relationship to CMS, AEWA focuses significant attention on the development and implementation New and Alien Species of action plans and management at the species level. In Another important report focused on species addition to detailed discussion of some of these processes, introductions in a rather uncommon way – by assessing MoP-6 noted the importance of coordinating such plans the status of introduced non-native waterbird species with the broader conservation-related planning undertaken and hybrids.8 Although international focus on the at the national and international level, including for introduction and impact of alien species has declined, example the processes relating to the adoption and updating this report highlighted that there remains a significant of National Biodiversity Strategies and Action Plans, as need for coordinated action, including actions for priority envisioned by the Convention on Biological Diversity, and species; developing risk assessment standards; increasing other strategic planning processes. cooperation between AEWA and the EU on regulations; and Under the heading “International Single-species and aligning AEWA and other reporting obligations. Multi-species Action Plans and Management Plans”, MoP-6 discussed the development of new action plans for the Conservation Guidance Documents Grey-crowned crane, Taiga bean goose, Long-tailed duck, MoP-6 continued AEWA’s commitment to the Eurasian curlew and Shoebill, as well as a revised plan for development of expert guidance documents in support the conservation of the coastal seabirds of the Benguela of the conservation of migratory waterbirds. Among the upwelling system. They also received a formal statement documents adopted in the meeting were the following: from the EU Federation of Associations for Hunting • “Guidance on Measures in National Legislation for and Conservation explaining its opposition to a current Different Populations of the Same Species,AUTHOR Particularly proposal COPY to reinstate a complete moratorium in France on with Respect to Hunting and Trade”; the hunting of the Eurasian curlew, pending the adoption • Guidelines on national legislation for the protection and implementation of a harvest management system. of species of migratory waterbirds and their habitats; Predictably, the lack of funding has been a major cause • Guidelines on the sustainable harvest of migratory of delay in this work, as governments and agencies appear waterbirds; and unwilling to commit to the amount of funding needed in • Guidelines on sustainable deployment of renewable order to undertake the level of detailed development of new energy technologies in the context of protecting information and reliable data that is necessary for proper migratory species. plan development. Unfortunately, proper scientific results cannot be expected from the modern penchant for hiring a Cross-sectoral Matters consultant to cut-and-paste information from increasingly The MoP also continued to focus significant attention on outdated research documents into a patchwork of data used the conservation activities in other sectors that have impacts to support the consultant’s desired result. on waterbird conservation. Among the issues addressed were renewable energy systems (as noted above), including Conclusion wind, solar, ocean, hydro, biological and geological sources AEWA was initially criticised for departing from the of power; marine activities (such as gill-net, long-line and basic CMS model, which envisioned the Agreements and trawl fishing resulting in seabird by-catch), increasing MoUs adopted under its auspices as narrowly focused on levels of marine plastic debris and the on-going need a single species, genus or geographic region (migratory to control these activities beyond the 200-mile limit of range). Critics denigrated AEWA’s approach as setting national exclusive economic zones; invasive predators; up a second umbrella under the CMS umbrella, so that and climate adaptation. The MoP’s resolutions on these the work envisioned for such agreements in CMS – the

0378-777X/15/$27.50 © 2016 IOS Press Environmental Policy and Law, 46/2 (2016) 165 adoption of species management plans and action plans conservation, and as a global instrument addressing issues – would have to be done by sub-units under AEWA. It common to all waterbirds. was feared that AEWA would create only a new level of MoP-7 will be held in 2018. The host country is not yet bureaucracy, delaying the development of those sub-units, decided. [TRY] which the critics thought should become Agreements or MoUs in their own right. Time has shown these critics Notes 1 IISD’s coverage of the meeting is found in Beintema, N., Harris, K. and Hestad, wrong, however. Even though sharing the challenge D. 2015. “6th Session of the Meeting of the Parties to the Agreement on the Con- of most other species conservation instruments – low servation of African-Eurasian Migratory Waterbirds”. Earth Negotiations Bulletin funding priority – AEWA has managed to place a number 18(66). Online at http://www.iisd.ca/unep/aewa/mop6/. Unattributed quotations in this article are all taken from this source. of issues and actions that normally fail to move forward at 2 AEWA website at http://www.unep-aewa.org/en/parties-range-states. the primary political level of the major MEAs in the hands 3 AEWA/MOP Resolution 2.6. of the type of scientific/technical experts that operate so 4 Ibid., at para. 2(f). 5 AEWA MoP Rules of Procedure, Rule 38. efficiently in the other CMS-species instruments. Thus, 6 IUCN Red List of Threatened Species, online at http://www.iucnredlist.org/. worldwide action on critical issues affecting waterbird 7 AEWA/MOP 6.14. mortality (and beyond)9 have been dealt with in an 8 AEWA/MOP 6.15. 9 For example, lead-shot issues were comprehensively addressed by AEWA in 2002, expeditious, competent and practical matter. AEWA is at MoP-2 (Resolution 2.2 “Phasing-out Lead Shot for Hunting in Wetlands”). These is- clearly functional and effective, both as an overarching sues are of much broader relevance, and are still not completely addressed by other, more umbrella for individual species/genera-based waterbird political, international bodies. See Thomas and Guitart, at p. 127 in this issue.

NATIONAL AFFAIRS

Canada Canada in the Post-2015 World by Paul Fauteux*

The Paris Agreement, adopted by consensus on 12 Remarkably well attended, despite the early Monday December 2015 by the 195 countries represented at the morning hour, by a standing-room-only audience of some 21st Conference of the Parties (CoP-21) to the United 150 officials, researchers, academics and representatives of Nations Framework Convention on Climate Change national and international environmental non-governmental (UNFCCC), kicked off the formal commitments regarding organisations (NGOs) and think tanks, the event was de-carbonisation of the global economy. The Sustainable launched by IISD President Scott Vaughan, who welcomed Development Goals (SDGs), adoptedAUTHOR by the United participants COPY and introduced the first panel. Nations General Assembly (UNGA) on 25 September 2015, similarly mark a breakthrough in the progressive Panel 1: How can Canada advance the development of international environmental policy and law. SDGs implementation nationally and as The International Institute for Sustainable Development part of its support for developing countries? (IISD), in collaboration with the International Development This panel was moderated by IDRC President Jean Research Centre (IDRC), hosted a half-day conference in Lebel, who focused his introductory remarks on the data Ottawa on 23 January 2016 to discuss the implications of revolution and the importance of big data in the necessary the Paris Climate Change Conference and the SDGs for mobilisation of all concerned to achieve the SDGs. In this Canada and the international community.1 Discussions connection he noted that Canada was one of the leading focused on what is in these agreements, what the key countries in the open data market and had hosted the 3rd challenges are in their implementation and what Canada International Open Data Conference, in which 1,000 needs to do in this connection, both at home and abroad. people from some 40 countries had participated in Ottawa in May 2015. The first panellist was Deirdre Kent, Director General * An expert in international law and one of six Canadians to hold the for Development Policy for Global Affairs Canada, the Diploma of The Hague Academy of International Law; a former diplomat, serving, inter alia, as Director General of Environment Canada’s Climate new name of the Canadian Foreign Ministry. Deirdre noted Change Bureau (in that capacity he co-led the Canadian delegation in the that SDGs were different from what had come before, international negotiations on the Marrakesh Agreement concerning the because of both their comprehensive nature and the UNGA implementation of the Kyoto Protocol); played a key role in the elaboration consensus by which they had been adopted. She highlighted of Canada’s 2002 Climate Change Plan; currently in private practice of law and mediation with Colas Moreira Kazandjian Zikovsky, a Montreal-based the Peace, Justice and Strong Institutions target, which firm specialising in international trade and business law. was new and critical for Canada, as well as the trillions

0378-777X/15/$27.50 © 2016 IOS Press 166 Environmental Policy and Law, 46/2 (2016) of dollars that would be necessary to achieve the very by the International Chamber of Commerce, the GBA ambitious goal of not just reducing, but eliminating world includes 20 organisations and associations and got its poverty by 2030. The private sector, foundations and NGOs inspiration from the Rio+20 Conference in 2012, which, all need to be mobilised, not just donor countries, and need in Drexhage’s view, marked a fundamental change in the to get it right at the outset and learn previous lessons about approach of the international business community to SD reporting, indicators, coordination and coherence. For these issues. He expressed concern both about the risk that the reasons, Canada is consulting widely, as was the UN, and implementation of SDGs would lead to an international was fully committed to the 2030 Agenda, which was front cacophony and the fact that they were only mentioned in and centre in the mandate letter of Marie-Claire Bibeau, the mandate letter of Canada’s Minister for International Canada’s new Minister for International Development and Development, when in reality they had cross-cutting La Francophonie. CoP-21 was an example of the leading implications for all Cabinet Ministers. To address these role Canada hopes to play in implementing Agenda 2030, problems, he suggested that Canada do a Voluntary and transparency, use of data and playing the convener National Review (VNR) of SDG implementation soon, both were areas where Canada could keep a positive momentum. to set an example and because “by doing it ourselves, we’ll see the problems and be able to help others address them”. David Runnalls, Acting Director of Sustainable Prosperity and visiting Professor of Geography at the University of Ottawa, said that building a coherent approach to climate change will be a key part of implementing SDGs and that dealing with these two issues in an integrated manner will require a fundamental rethinking of how we do things. Fighting climate change will be really hard for Canada, given that Saskatchewan and Alberta make up almost half of its national emissions. Two fundamental challenges for SDG implementation were their universal applicability (i.e., to developed as well as developing countries) and the need for a strong governance regime. Courtesy: IDRC and IISD (http://www.iisd.org/event/canada-post-2015-world) Stressing the importance of data, Runnalls noted that SDG indicators will require greater business involvement and Livia Bizikova, Director of IISD’s Knowledge for the UN system will need to overhaul how it deals with Integrated Decision-Making Program, spoke about the private sector. In his view, many companies were implementing SDGs at the national level. Contrary to the contributing to SD but the general public was not aware concept of sustainable development (SD), which had been of it because they weren’t communicating it. criticised for its vagueness, SDGs clearly define what we Robert Wolfe of Queen’s University spoke about mean by SD, which includes culture and governance. They follow-up and review of SDGs, on which final negotiations also contain quantified targets, which provide a clear idea are still to come. While SDGs in themselves will not of what SD should look like. The principle of universality cause anything to change, and nor will writing them down means that every country doesn’t have to do exactly the necessarily bring policy coherence, the review process same things, so the relevance of SDGsAUTHOR for the specific might COPY do both. The focal point for this work is the High context of individual countries will have to be assessed Level Political Forum (HLPF) on SD, which is tasked based on current data and trends. The integrated nature with “orchestrating”, i.e., coordinating and encouraging, of SDGs will also be challenging, because it goes against the efforts of States, UN entities, businesses and NGOs. the usual narrow focus of development programmes. All If, as envisioned in a recently released report of the UN SDGs have social, environmental and economic aspects, Secretary General (SG), the HLPF reviews national reviews as well as impacts on other goals. Livia gave examples of on SDG implementation every four years in a format that countries that have started efforts to identify the relevance only allows a few minutes per minister, there would be no of SDGs nationally. She stressed the critical role of data serious scrutiny and the process could end up worthless. to capture progress and noted that, while 151 of the 231 The SG report also contained too much on the development SDG indicators proposed by the UN Statistical Commission dimension and too little on how developed countries should are well established and many statistical agencies already review themselves. Wolfe therefore agreed with Drexhage’s report on them, there are many open questions, such as suggestion that Canada do a VNR soon, in which it would monitoring at the sub-national level, data aggregation and talk about what it is doing both at home and to help how to deal with the overwhelming number of indicators. others. Canada could also contribute by improving the Finally, Bizikova presented a snapshot of progress with architecture and encouraging all international organisations SDGs from a report by the Kofi Annan Foundation, which to strengthen peer review relevant to SDGs. placed Canada 11th out of the 34 member countries of the In the ensuing discussion, appreciation was expressed Organisation for Economic Co-operation and Development. for the fact that, four months after the election of Canada’s The next speaker was John Drexhage, a consultant new government, this was the first meeting on national who represents the extractive industry as part of the implementation of SDGs after the Paris Conference. On a Global Business Alliance for 2030 (GBA). Chaired more cautious note, Runnalls opined that the UN Commission

0378-777X/15/$27.50 © 2016 IOS Press Environmental Policy and Law, 46/2 (2016) 167 on Sustainable Development (UNCSD) had been one of the area of considerable Canadian expertise, was the cheapest, worst institutional innovations on the face of the Earth and fastest and easiest way to reduce GHG emissions, and would that the HLPF risked becoming similarly irrelevant. also help meet SDGs by creating jobs and improving lives. Experience gained through the Canadian Climate Change Panel 2: What do the outcomes of the Paris Development Fund in India and Egypt demonstrated the Climate Change Conference mean for importance of leveraging available financing and focusing on Canada? market transformation, rather than project implementation, Peter Wooders of IISD moderated the second panel for maximum impact and sustainability. and its first speaker was Dany Drouin of Environment Anne Hammill, Director of Resilience at IISD, Canada, Negotiator for Climate Finance on the Canadian discussed adaptation in the Paris Agreement and delegation to CoP-21. Catherine McKenna, Canada’s opportunities for Canada. She recommended that Canada Minister of the Environment and Climate Change, had build on its Adaptation Platform and use it as a tool facilitated negotiations on Article 6 of the Paris Accord for knowledge sharing, and that it lead by example in on international cooperation (the new code word for national adaptation planning by updating its 2011 Federal carbon markets), which, along with differentiation and Adaptation Policy Framework. Given the link between finance, was one of the last three issues to be resolved. adaptation and SDGs, and reporting burden overload, The International Emissions Trading Association was very Canada was well placed to suggest ways of streamlining grateful for Canada’s role on Article 6, as a result of which so that SDG reporting became part of adaptation “transferable mitigation outcomes”, also code for carbon reporting. Canada should also provide greater financial markets, were permitted as long as there was transparency support to adaptation in developing countries and reclaim and robust accounting to avoid double counting. The Paris its role as champion in this area. Agreement signing ceremony on Earth Day in New York The following points emerged in the discussion that would draw a lot of attention and, as the threshold for entry followed: into force was relatively low, it could happen before 2020. • Energy efficiency will have to be followed by green McKenna had stated that Canada’s Intended Nationally energy, because it can’t fight climate change alone; Determined Contribution (INDC) set by the previous • About 60 jurisdictions in the world have put a price on Canadian government (an economy-wide target to reduce carbon, so there won’t be a single carbon price; greenhouse gas (GHG) emissions by 30 percent below 2005 • The bottom-up approach means that it will be up levels by 2030) was “a floor” and would be reviewed with to individual countries to determine the role that the Provinces and Territories at a First Ministers Meeting agriculture will play in fighting climate change (as (subsequently scheduled for 3 March 2016 in Vancouver). part of Land Use, Land Use Change and Forestry) Canada’s next target will be the subject of an important and the lion’s share of bilateral aid for adaptation goes conversation, since the low-hanging fruit will no longer to agriculture, so there is a disconnect between the be available. adaptation and mitigation conversations on agriculture; Jennifer Allan of IISD Reporting Services, a contributor • Eradicating poverty by 2030 without increasing GHG to the Earth Negotiations Bulletin, highlighted a number of emissions beyond 1.5°C above pre-industrial levels will characteristics of the Paris Agreement. It takes a bottom-up be a gigantic challenge, and much more investment is approach (as opposed to the Kyoto Protocol’s top-down needed in innovation. approach) to increase participation in theAUTHOR international COPY effort to fight climate change and sends a market signal that Scott Vaughan made the following points in his closing development will be done differently. It is unexpectedly remarks: ambitious in its references to efforts to limit the temperature • Integrating climate change and SDGs is essential increase to 1.5°C above pre-industrial levels, balancing but difficult in Canada, so imagine what it is like in anthropogenic emissions with removing emissions by developing countries; carbon sinks, and human rights. It provides for transparency • Recent findings show that we’ve already hit 1°C above by creating legally binding obligations to submit and report pre-industrial levels (UK Meteorological Service) and (as opposed to INDCs, which are not legally binding) that 2015 was the hottest summer ever (NASA), so there and near universal participation (96 percent of global is a real urgency to address the climate crisis. emissions), including that of least developed countries and small island developing States. It puts adaptation on With respect to Canada’s role, he noted, “we can a par with mitigation, of which it had previously been a actually have policy discussions in Ottawa again”. Canada poor cousin. It also recognises loss and damage caused can exercise leadership on data but there are still a number by climate change in a separate article and, while there of issues that need to be resolved. He cited integration as are no provisions on liability and compensation, this will the single most important aspect of the SDGs, noting that, now be a legitimate issue in the UNFCCC negotiations unlike policy coherence, integration was the most difficult going forward. thing to achieve. Pierre Langlois, President of Econoler (an Energy Service Company), spoke about the contribution of demand- Notes side clean energy to the Canadian climate change initiative, 1 Materials for this event, including speaker presentations and a video recor- with a focus on developing countries. Energy efficiency, an ding, are available at http://www.iisd.org/event/canada-post-2015-world.

India Solid Waste Management Legislation – A Review – by Prashant Bhave* and Karan Sadhwani**

India, the first country in the world to amend following gives a brief understanding of some of the most its Constitution to add a clause for protecting the important of the more recent legislative acts that have environment,1 is also witnessing the fourth fastest incorporated the objective of solid waste management. economic growth in the world.2 Rapid urbanisation, globalisation, rising population and standard of living Indian Penal Code have caused an increase in the quantity of solid waste Chapter XIV of the Indian Penal Code, 1860,9 deals generated in the country. According to the Central with offences affecting public health, safety, convenience, Pollution Control Board (CPCB), Government of India decency and morals, in three clauses: (GoI), 143,449 million tonnes (MT) of solid waste is • Section 268. Public nuisance. generated per day in India out of which only 32,871 MT • Section 269. Negligent act likely to spread infection of per day, i.e., 23 percent, is treated.3 disease dangerous to life. One hundred and thirteen countries were represented at • Section 270. Malignant act likely to spread infection the United Nations Conference on the Human Environment, of disease dangerous to life. which produced the Stockholm Declaration (of which India was a signatory) in 1972.4 That document emphasised The Sarais (Inn) Act the need to address environmental protection – a goal The Sarais (Inn) Act, 1867,10 includes §12, which sets that India accomplished through its 42nd constitutional the penalty to be imposed on one who permits a sarais amendment in 1976, which integrated environmental (inn) to be “filthy or overgrown”. issues into the Constitution, by adding two new articles: a Directive Principle of State Policy under Article 48A and The Obstruction in Fairways Act a Fundamental Duty under Article 51A(g) focused on the The Obstruction in Fairways Act, 1881,11 includes “Protection and improvement of environment”.5 (in §8) provisions regulating or prohibiting persons Later, it was felt that a separate department was needed from discarding rubbish in any waterway leading to a for handling environmental issues, and in January 1980 port causing or likely to give rise to a bank or any other the Central Government set up the Tiwari Committee obstruction or danger to navigation. under the chairmanship of N.D. Tiwari to recommend legislative measures for environmental protection.6 This Indian Ports Act led to the formation of the DepartmentAUTHOR of Forests on 1 UnderCOPY the Indian Ports Act, 1908,12 the improper November 1980, which was transferred to the Ministry discharge of ballast or rubbish is addressed in Chapter of Environment and Forests (MoEF) in 1985, and in 2014 IV, §21. The proposed penalty for these actions is found given its current name, the Ministry of Environment, Forest in §21.2. and Climate Change. The Factories Act History of Laws Related to Solid Waste Chapter III, §11(a) and (b) of the Factories Act, Management in India 1948,13 deals with cleanliness. In addition, §12 deals with Kautilya, the Prime Minister of Magadh during the “Effective arrangement for disposal of wastes and effluent”. regime of Chandra Gupta Maurya (c. 300BC), in his Arthashastra7 dealt exhaustively with the question of The Atomic Energy Act environmental protection. Mauryan King Ashoka and The Atomic Energy Act, 1962,14 deals with development, Emperor Shivaji depicted compassion for environment.8 control and use of atomic energy for the welfare of the Although not addressing solid waste management in people of India. Sections of this act also deal with disposal totality, certain sections of various laws that preceded of radioactive waste in India. the enactment of the Environment (Protection) Act, 1986 (discussed below), dealt with these issues in India. The Criminal Procedure Code The Criminal Procedure Code, 1973,15 deals with offences relating to public nuisance in Chapter X B, §133 * Associate Professor and Head, Civil and Environmental Engineering Department, Veermata Jijabai Technological Institute, Mumbai. (Conditional order for removal of nuisance) and Chapter X ** M.Tech. Scholar, Civil and Environmental Engineering Department, VJTI, C, §144 (Power to issue order in urgent cases of nuisance Mumbai. or apprehended danger).

The Water (Prevention and Control of Pollution) Act waste was felt. The following laws give guidelines for the The Water (Prevention and Control of Pollution) Act, disposal of different types of solid waste. 1974,16 regulates the disposal of solid and other wastes in water bodies. The Environment Protection Act After the Bhopal gas tragedy in 1984, the Environment Basic Principles Applicable under Protection Act (EPA), 1986,22 was enacted. It is considered Environmental Legislation as an umbrella legislation which empowered the The basic principles underlying environmental laws Government to take steps for environmental protection. and treaties are: Furthermore it also filled the gaps in the then prevalent • The polluter pays principle, laws. All of the rules cited below (apart, of course, from • The principle of non-discrimination, the Tribunal Act and the Constitutional amendment) were • The precautionary principle, notified in the exercise of the powers conferred under §§6, • The principle of common but differentiated 8 and 25 of this Act. responsibility, and • The principle of intergenerational equity.17 The Constitution (Seventy-Fourth Amendment) Act This amendment aimed to enable each area in transition Environmental Management Policies from a rural to urban area to form either a Nagar Panchayat In its endeavours in the area of environmental – a Municipal Council (for smaller urban areas) – or a management, the GoI has published a number of policies, Municipal Corporation (for larger urban areas). One of the described under the four following headings. primary functions of these bodies is upholding and following the provisions of the Municipal Solid Waste (Management National Conservation Strategy and Policy and Handling) Rules, 2000,23 discussed below. Statement on Environment and Development The National Conservation Strategy and Policy Bio-medical Waste (Management and Handling) Statement on Environment and Development, 1992,18 give Rules guidelines for the disposal of solid and other wastes in an The Bio-medical Waste (Management and Handling) environmentally friendly manner. Rules, 1998,24 provide guidelines for the handling and disposal of biomedical waste in an environmentally friendly Policy Statement for Abatement of Pollution manner. In 2011, a notification of an amended draft, Bio- In a resolution passed by the MoEF, GoI’s Policy medical Waste (Management and Handling) Rules, was Statement for Abatement of Pollution, 1992,19 encourages published but the same was not accepted. As of this writing, the abatement of pollution in its various forms including the Ministry of Environment, Forest and Climate Change solid wastes. has proposed a new notification of draft Bio-medical Waste (Management and Handling) Rules, 2015.25 Environmental Impact Assessment In exercise of the powers conferred by §§3(1) and Fly Ash Utilisation 3(2)(v) of the Environment (Protection) Act, 1986, In 1999, the Central Government issued an untitled read together with Rule 5(3)(d) of the Environment notification containing directions for restricting the (Protection) Rules, 1986, the EnvironmentalAUTHOR Impact excavation COPY of top soil for the manufacture of bricks and Assessment Notification, 1994 (amended in 2006),20 promoting the utilisation of fly ash in the manufacture directs that expansion or modernisation of any activity or of building materials and in construction activity within new project shall not be undertaken in any part of India a specified radius of 100 km from coal or lignite-based unless it has been accorded environmental clearance by thermal power plants.26 the Central Government. One of the major functions of this policy is for disposal of wastes in an environmentally Recycled Plastics Manufacture, Sale and Usage friendly manner. Rules In 2003, the Government notified amended rules for the National Environment Policy manufacture, sale and use of recycled plastics, carrier bags The National Environment Policy, 2006,21 expanded and containers.27 These Rules have since been replaced.28 on the National Conservation Strategy and Policy Statement on Environment and Development, and Policy Municipal Solid Waste (Management and Handling) Statement for Abatement of Pollution to further the cause Rules of environmental management. In the Municipal Solid Waste (Management and Handling) Rules, 2000, the MoEF sought to regulate the management Current Status of Laws Related to Solid and handling of municipal solid wastes.29 These rules paved Waste Management in India the way for assigning to the local bodies the task of collection, The provisions of earlier laws dealt with solid waste storage, transportation, segregation, processing and disposal management on some levels but due to the ever increasing of solid waste. The local bodies are made accountable for population, and subsequent increased exploitation of natural the proper disposal of solid waste with annual reports to be resources, the need for laws dealing exclusively with solid submitted to Pollution Controlling Bodies.

In 2013, a notification of draft Municipal Solid amendments led to the announcement of draft e-waste Waste Management Rules, 2013, was published, inviting (Management) Rules, 2015.40 objections or suggestions from the public within a specified 60-day period. This notification was to result Plastic Waste (Management and Handling) Rules in rules that would supersede the 2000 Rules. The High Superseding the Recycled Plastics Manufacture, Sale Court of Karnataka, however, issued an order directing and Usage Rules, 1999, the Plastic Waste (Management that the 2013 draft Rules should be kept on hold.30 A and Handling) Rules, 2011, were enacted, imposing stricter Bengaluru-based non-profit group named Environment provisions in terms of manufacturing and packaging. One Support Group had filed submissions in the court, of the major provisions under the new Act is the explicit questioning the proposed amendments and arguing that recognition of the role of waste pickers.41 The Ministry the 2013 Draft Rules were highly regressive and against of Environment, Forest and Climate Change has notified the High Court’s direction. The petitioners brought to a proposed amendment to these rules – the draft Plastic the attention of the court that the proposed amendments Waste Management Rules, 2015.42 by the Ministry promoted dumping of unsegregated waste in landfills. They also argued that the intention International Laws/Treaties Related to Solid of the amendments appeared to be actively promoting Waste Management incineration technologies for burning unsegregated Basel Convention waste, which violates the existing rules and also that The Basel Convention on the Control of Transboundary incineration technologies had failed wherever they had Movements of Hazardous Wastes and their Disposal (the been tried in India. The 2013 notification was scrapped Basel Convention) was adopted on 22 March 1989 by the as a result.31 Conference of Plenipotentiaries in Basel, Switzerland. At present, the rules, once again modified, have again The Convention entered into force on 5 May 1992. India been notified as part of the draft Solid Waste Management deposited its instrument of ratification on June 1992. Rules, 2015, and are currently up for public comments.32 There are currently 183 Parties to the Convention. The overarching objective of the Basel Convention is to protect The Batteries (Management and Handling) Rules human health and the environment against the adverse In 2001, the MoEF enacted the Batteries (Management effects of hazardous wastes. Its scope of application covers and Handling) Rules.33 These rules, later amended,34 apply a wide range of wastes defined as “hazardous wastes” based to every manufacturer, importer, re-conditioner, assembler, on their origin and/or composition and their characteristics, dealer, recycler, auctioneer, consumer and bulk consumer as well as two types of wastes defined as “other wastes” involved in the manufacture, processing, sale, purchase and (household waste and incinerator ash).43 use of batteries. The rules give guidelines for the disposal of batteries in an environmentally friendly manner. Rotterdam Convention The Rotterdam Convention on the Prior Informed Hazardous Waste (Management and Handling) Consent Procedure for Certain Hazardous Chemicals and (Management, Handling and Transboundary and Pesticides in International Trade (the Rotterdam Movement) Rules Convention) entered into force on 24 February 2004. In 1989, the Government enacted the Hazardous India acceded to the Convention on 24 May 2005 and Waste (Management and Handling) AUTHORRules,35 aimed at it became COPY operative on 23 August 2005. Over 170 managing, handling and disposing of hazardous waste countries have identified 265 departments/institutes in an environmentally friendly manner. These rules were as Designated National Authorities (DNAs) to act on superseded by the Hazardous Wastes (Management, their behalf in the performance of the administrative Handling and Transboundary Movement) Rules, 2008.36 functions required by the Rotterdam Convention. The In 2009, an amendment was made,37 which filled the gaps DNAs for India are in the Ministry of Chemicals and and expanded upon the provisions of the 2008 Rules. Fertilizers, and the Department of Agriculture and Cooperation. India has also designated Official Contact National Green Tribunal Act Points in the Ministry of Environment, Forest and The National Green Tribunal Act, 2010,38 is an act Climate Change. This Convention lists 47 chemicals, of Parliament of India which created a judicial forum to including 33 pesticides and 14 industrial chemicals, expeditiously and exclusively deal with cases pertaining to that have been banned or severely restricted for health the environment under Article 21 of the Indian Constitution. or environmental reasons by two or more Parties and It repealed two previous acts related to this issue: the which the Conference of the Parties has decided must National Environment Tribunal Act, 1995, and the National be subject to the Prior Informed Consent procedure Environment Appellate Authority Act, 1997. when moving in international trade.44

E-Waste (Management and Handling) Rules Stockholm Convention on Persistent Organic In 2011, the Government adopted the e-waste Pollutants (Management and Handling) Rules, 2011. These Rules aim The Stockholm Convention on Persistent Organic at the disposal of electronic waste in an environmentally Pollutants (POPs) is a global treaty to protect human friendly manner.39 Recently, a notification of proposed health and the environment from POPs. The Convention

0378-777X/15/$27.50 © 2016 IOS Press Environmental Policy and Law, 46/2 (2016) 171 initially identified 12 chemicals, the production and Public Interest Litigation release of which it sought to restrict or eliminate. Writ Petition (Civil) No. 286/1994, Dr B.L. Wadehra v. Currently, the Convention lists 23 such chemicals. The Union of India & others, (Management of municipal Convention was adopted in May 2001 and came into force solid waste) on 17 May, 2004. India ratified it on 13 January 2006, so This writ petition was filed under Article 32 of the that its ratification entered into force on 12 April 2006. Constitution of India. The Petitioner asked the court to Article 7 of the Convention requires each Party to develop issue directions to the Municipal Corporation of Delhi a National Implementation Plan (NIP) to demonstrate how (MCD) and New Delhi Municipal Council (NDMC) it will implement its obligations under the Convention. to take action in accordance with the Municipal Laws India’s NIP was developed with Global Environment specifically for collection, removal and disposal of Facility (GEF) funding. The Ministry of Environment, garbage and other wastes. The MCD submitted that the Forest and Climate Change serves as India’s focal point total number of garbage collection centres was 1,604 for GEF and the Stockholm Convention. Designated (337 community bins, 1,284 dustbins, 176 open sites and national authorities are in the Department of Agriculture 7 steel bins). The garbage collection trucks collected the and Cooperation, and the Department of Chemicals garbage from the collection centres and took it to the and Petrochemicals. India has ratified 12 initially listed nearest Sanitary Land Fill (SLF). In its reply, NDMC chemicals.45 stated that, on average, 300–350 tonnes of garbage is generated in the NDMC area and asserted that there Minamata Convention were only 944 garbage collecting places (650 trolleys At its Conference of Plenipotentiaries held 9–11 October and 394 dustbins). On 1 March 1996, the Court issued 2013 in Minamata and Kumamoto, Japan, the Minamata an order, which began by noting that the ambient air was Convention on Mercury, a global treaty to protect human so polluted that it was difficult to breathe and that the health and the environment from the adverse effects of people of Delhi were suffering from respiratory diseases mercury, was formally adopted and opened for signature and throat infections. It noted that the River Yamuna, by States and regional economic integration organisations. the municipality’s main source of drinking water, To date, the Convention has 23 ratifications and a total of was the free dumping place for untreated sewage and 128 countries are listed as signatories. India signed the industrial waste. Quoting Article 21 of the Constitution, Convention on 30 September 2014.46 which guarantees the “Right to life” and Articles 48A and 51A(g), the court directed the defendants to SAICM strictly implement the solid waste management regime, In February 2006, over 190 countries including according to detailed instructions.49 India acceded to the Strategic Approach to International Chemicals Management (SAICM), an international policy Writ Petition (Civil) No. 657/1995, Research framework to foster sound management of chemicals. Foundation for Science, Technology and Natural Initial activities under SAICM included development or Resource Policy v. UOI & others, (Import of updating of national chemicals profiles, strengthening hazardous waste) of institutions, and mainstreaming sound management This writ petition called on the Supreme Court of chemicals in national strategies. Towards this end, to impose a ban on the import of toxic wastes from India initiated the preparation of the NationalAUTHOR Chemicals industrialised COPY countries. The court’s order of 13 March Management Profile to assess India’s infrastructure and 1997 appointed the High Power Committee headed by Prof. capacity for management of chemicals. In addition, the M.G.K. Menon to look into various aspects of hazardous Ministry: wastes and to suggest measures. On 12 February 2001, (i) initiated studies preparatory to inventorying lead, the Court acknowledged receipt of that report and a report cadmium, mercury and arsenic in paints, distemper relating to hazardous wastes that had been off-loaded at and pigments in the country, Alang in Gujarat. The Court further directed the Union of (ii) initiated discussions with leading national India to file an affidavit indicating whether the material laboratories, imported was hazardous or not, when a particular technical (iii) notified the e-waste (Management and Handling) report was not filed as previously requested.50 Thereafter, Rules, 2012, for the management of electronic waste, the Court issued a number of Comprehensive Directives and dated 14 October 2003, with a time period of 3 weeks to (iv) finalised the draftDangerous Goods (Classification, 12 months to, inter alia, amend various policies such as Packaging and Labelling) Rules, 2013, in line with the Hazardous Waste Rules 1989 (amended 2003); review the UN’s Globally Harmonized System.47 the items on Schedule VIII List A of the Basel Convention, other than the 29 banned items already included in the Judicial Responses for Environmental Hazardous Waste Rules; amend the rules incorporating the Issues principles of Article 9 of the Basel Convention; upgrade Within Indian jurisprudence, there are two especially the laboratories at certain ports, and take other actions.51 relevant types of judicial cases: public interest litigation In its order dated 14 October 2003, the Court directed the (PIL) in the Supreme Court of India,48 and petitions filed Central Government to constitute a Monitoring Committee in the National Green Tribunal (NGT). to oversee timely compliance of its directions.

Writ Petition (Civil) No. 888/1996, Almitra H. Patel v. monitoring the implementation of the provisions of, inter Union of India & others, (Management of solid waste alia, the Prevention of Cruelty to Animals (Establishment in Class-I cities) and Registration of Societies for Prevention of Cruelty This writ petition alleged that the practices adopted to Animals) Rules, 2000; the EPA, 1986; the Municipal by the municipalities for disposal of garbage in urban Solid Wastes (Management and Handling) Rules, 2000; areas were faulty and deficient. The management of solid and the Prevention of Cruelty to Animals (Slaughterhouse) waste by the municipalities had direct impact on the Rules, 2000. On 10 October 2012, another order was issued health of the people in the country. The petitioner noted regarding the need to form committees to supervise the that guidelines and recommendations had been made framework developed by the MoEF. Very few committees by the Central Pollution Control Board (CPCB) for the responded to the implementation of said framework. management of municipal waste. In its reply, the CPCB Consequently it has been decided that a Judicial Officer submitted that the responsibilities for management of must be nominated (a retired District Judge) to serve as solid waste were vested with the municipal corporations convener of these Committees.53 of the municipalities which are under the administrative control of respective states/union territories. At the Petitions Filed with the National Green Tribunal central level, the Ministry of Urban Affairs is the Ministry On 18 October 2010, pursuant to the National Green that should deal with matters relating to municipal Tribunal Act 2010, the NGT was established, “for the solid wastes. The Board noted that it had taken several effective and expeditious disposal of cases relating to initiatives for improving the collection, transportation, environmental protection and conservation of forests disposal and utilisation of municipal solid wastes. On 16 and other natural resources including enforcement of any January 1998, on the basis of this reply and the replies of legal right relating to environment and giving relief and the various other departments and state governments, the compensation for damages to persons and property and for Supreme Court constituted a committee under chairman matters connected therewith or incidental thereto”..54 It is a Shri Asim Barman that was specifically directed to look specialised body equipped with the necessary expertise to into all aspects of solid waste management in Class-I handle environmental disputes involving multi-disciplinary cities of India. That committee submitted its report in issues. Some of the NGT’s orders most relevant to this March 1999, including several recommendations on paper are listed below: technical and other aspects of the management of solid • In its order dated 26 February 2014, the NGT directed waste, under the following headings; (i) mandatory the civic agencies that, in addition to the small fine recommendations for citizens/associations; (ii) mandatory provided under the Municipal Corporation Act, the recommendations for local bodies/state governments; Tribunal will also invoke the “polluter pays principle” and (iii) discretionary recommendations for urban local and direct payment of much higher costs for throwing bodies. On the basis of this, the process was commenced garbage and rubbish on to roads, into drains and even that led to the adoption of the Municipal Solid Wastes by the roadside.55 (Management and Handling) Rules, 2000, supra. The • In its order dated 22 April 2014, the NGT imposed Supreme Court, on 24 November 1999, ordered the CPCB damages of IRs 20 lakh (1 lakh = 100,000 Indian to carry out inspections and a comprehensive report rupees) each on the Nagpur Municipal Corporation and with regard to five cities (Bangalore, Kolkata, Chennai, its contractor Hanjer Biotech Energies for not operating Delhi and Mumbai). In that report, theAUTHOR CPCB gave their theCOPY solid waste disposal plant at Bhandewadi properly.56 observations on the implementation of the Barman • In its order dated 3 November 2014, the NGT requested Committee’s recommendations.52 the Chief Secretaries of the states/territories to submit an action plan (with detailed timetable) and annual Writ Petition (Civil) No. 309/2003, Laxmi Narain Modi reports on implementation of the Municipal Solid v. Union of India & others, (Regarding the disposal of Wastes (Management and Handling) Rules, 2000.57 solid waste generated in slaughterhouses) • In its order dated 13 January 2015, the NGT banned In its order dated 26 July 2004, the Supreme Court the dumping of construction material and debris directed CPCB to collect information from various State in the Yamuna river, imposing a fine of IRs 50,000 Pollution Control Boards/Committees as to the modes on violators. The order also restrained real-estate adopted in the respective areas for disposal of solid developers from carrying out any construction work waste in slaughterhouses. The matter was heard on 3 on the floodplains under its “Maily se Nirmal Yamuna October 2005, with an additional six weeks granted to Revitalisation Plan 2017”. It also ordered that people those wishing to file detailed responses with regard to the who throw religious items and waste into the Yamuna slaughterhouses, placing on record steps taken or proposed will have to pay a fine of IRs 5,000.58 to be taken with the time schedule so as to comply with • In its order dated 18 March 2015, the NGT imposed a fine the various provisions of environmental law, including the of IRs 5,000 on individuals spotted littering or throwing requirement of disposal of solid wastes by slaughterhouses, waste on to station platforms and railway tracks.59 and the establishment and running of slaughterhouses. • In its order dated 28 April 2015, the NGT came down In a subsequent order on 23 August 2012, the Supreme heavily on the NDMC over its failure to check waste- Court highlighted the extreme necessity of constituting burning in the Lodhi Gardens. It imposed a complete State Committees for the purpose of supervising and ban on burning of waste in the open including garbage,

leaves, plastic and crop residues and a fine of IRs 5,000 on aeroplane flight paths), as well as rodents, rats and other on violators.60 burrowing animals (potential vectors of diseases to workers • In its order dated 28 May 2015, the NGT imposed a fine at solid waste disposal sites). of IRs 10,000 each on the Chief Secretary and Principal Secretary-cum-Additional Chief Secretary (Revenue) Lack of Efficient, Economical and Innovative of the State for their failure to file an affidavit on the Technologies issue of an alternative site for dumping the municipal Technologies such as biomethanation, composting, solid waste of Guwahati.61 incineration, pyrolysis, gasification, waste to energy etc., • In its order dated 2 July 2015, the NGT imposed a are practised on a large scale in developed countries; complete ban on plastic bags in the pilgrimage towns of however, they are not being implemented extensively and Haridwar and Rishikesh, slamming the authorities for effectively in India. These technologies are perceived as their lackadaisical attitude to keeping the Ganga clean, largely unsuccessful, if adopted on a massive scale. warning of action against those violating the order and a fine of IRs 5,000 for each violation.62 No Charges for Waste Disposal • In its order dated 13 July 2015, the NGT pulled up the In India, several municipalities charge businesses for Haryana government for failing to file a status report disposing of the solid waste they have generated; but not on solid waste management, despite several directives their citizens. In Europe, countries such as Germany have stretching back 12 years, when the matter was first taken adopted “Pay as You Throw” schemes for solid waste, up by the Supreme Court. The tribunal directed the effectively making their citizens major stakeholders in the state to file status reports on the collection, storage and solid waste management process. If the public is charged for disposal of municipal solid waste in the state, failing waste generation and disposal, this will deter rampant waste which a fine of IRs 50,000 will be imposed. The solid generation and reduce the amount of waste going to landfill. waste treatment plant at Bandhwari has been lying The waste is instead disposed of in a more environmentally unused for almost two years and the tonnes of untreated friendly manner such as recycling and composting.65 garbage which are piling up at the premises are a serious threat to the environment. Close to 1,100 metric tonnes Non-involvement of Manufacturers of municipal solid waste are generated in Gurgaon and In European countries, the “Green Dot” system is being Faridabad and are dumped at Bandhwari daily.63 implemented, making manufacturers liable for recycling • In its order dated 21 July 2015, the NGT directed packaging material, which has effectively reduced the the Delhi Metro Rail Corporation to stop dumping burden on civic corporations.66 Manufacturers have construction waste on the Yamuna riverbed and clear been forced to find innovative ways to reduce packaging the dumped debris within five days.64 material. A similar system would lead to a reduction in waste generated.

Gaps/Failings in the Existing Solid Waste Ineffective Implementation Management System The laws for solid waste management are sufficient; Technical however, their implementation is largely neglected due Lack of Open Space either to civic apathy or manpower problems. There is The major defining characteristic of AUTHORsolid waste is that a perception COPY that, unless a gross infraction irreversibly it is bulky in nature, making management of such waste damages the environment, relevant laws will not be a space-intensive activity. For every stage of solid waste enacted. With increased public participation and the management (i.e., storage, segregation, disposal either by formation of the National Green Tribunal, India may be composting or landfilling), space is required. Often in cities on the road to enacting and implementing the laws needed. and urban areas, the space factor is a constraint. Members of the public do not want waste to be stored near their Socio-economic Problems of Conservancy Workers households. Due to this space constraint, it is also difficult The work of conservancy workers – carrying out to erect transfer stations. Establishing landfills far away solid waste management in India – has a history of from waste generation sources entails heavy transportation social stigma. This has caused the social and economic charges making it difficult for civic corporations to bear status of conservancy workers to be largely ignored. the financial burden. The conservancy workers form the backbone of any solid waste management and unless the workers are Lack of Post-disposal Monitoring motivated by incentives in terms of better socio-economic Landfills are a major contributor to greenhouse gases. conditions, solid waste management cannot be effectively Thus current pressures relating to climate issues sometimes implemented. prompt developed countries to close down landfills. In India, landfill is the most used form of solid waste disposal. Non-technical After being dumped in landfill, the waste is not sorted, Civic Attitudes with the result that layers of waste are indiscriminately Solid waste management will continue to be ineffective dumped on one another. The leachate pollutes the ground until the attitude of people towards waste changes. For water. Open landfills also attract birds (causing problems example, the segregation of dry and wet waste has to

15 Code of Criminal Procedure, 1973. Online at http://www.icf.indianrailways. happen at source. Composting must be carried out at gov.in/uploads/files/CrPC.pdf. community level. People need to maintain cleanliness along 16 The Water (Prevention and Control of Pollution) Act 1974 (Act No. 6 of 1974). Online at http://www.moef.nic.in/legis/water/wat1.html. with dumping waste at designated locations. 17 Kulkarni, V. and Ramachandra, T.V. 2006. Environmental Management, at 50–51. New Delhi: The Energy and Resources Institute (TERI) Press. Insufficient Political Will 18 GoI. 1992. “National Conservation Strategy and Policy Statement on Environ- Politicians in India are faced with basic problems such ment and Development”. Online at http://www.moef.gov.in/sites/default/files/introduction-csps.pdf. as providing water and electricity. In this situation, they 19 GoI. 1992. Policy Statement for Abatement of Pollution. Online at http://www. may view solid waste management as the least important moef.gov.in/sites/default/files/introduction-psap.pdf. issue before them. 20 Ministry of Environment and Forests (MoEF). 27 January 1994. Environment Impact Assessment Notification (as amended). S.O.60(E), online at http://www.envfor.nic.in/legis/eia/so-60(e).pdf; and Notification of Cabinet approval, 14 September Apathy of Civic Workers 2006, online at http://envfor.nic.in/legis/eia/so1533.pdf. The example of the Municipal Solid Wastes 21 GoI. 2006. National Environment Policy 2006. Online at http://envfor.nic.in/ sites/default/files/annual_report/nep2006e.pdf. (Management and Handling) Rules, 2000, demonstrates 22 Supra, note 4. that these rules are not followed by civic workers. Though 23 See http://moud.gov.in/legislation/constiution. the law mandates door-to-door collection of waste, it is 24 MoEF. Bio-Medical Waste (Management and Handling) Rules, 1998 (Notification: 20 July 1998). Online at http://envfor.nic.in/legis/hsm/biomed.html. rarely seen except in a few metropolitan areas. Illegal 25 See http://envfor.nic.in/content/draft-waste-management-rules-2015-comments. dumping of rubbish is rampant with little or no supervision. 26 MoEF. 14 September 1999. Notification. Online at http://envfor.nic.in/legis/ hsm/flyash.html. Ineffective, Inefficient Policies 27 MoEF. 2 September 1999. Recycled Plastics Manufacture and Usage Rules, 1999. Notification. Online at http://www.envfor.nic.in/legis/hsm/plastic.html; and There is disparity in the framing of policies between Recycled Plastics Manufacture and Usage (Amendment) Rules, 2003. Online at the policy makers and the grass-roots. It is particularly http://envfor.nic.in/legis/hsm/so698(e).html. apparent in terms of technology, manpower and resources, 28 MoEF. 4 February 2011. Plastic Waste (Management and Handling) Rules, 2011. Notification. Online at http://www.moef.nic.in/downloads/public-information/ and the mindset of the policy makers leading to ineffective/ DOC070211-005.pdf. inadequate policies. 29 MoEF. Municipal Solid Wastes (Management and Handling) Rules, 2000. Notification. Online at http://www.moef.nic.in/legis/hsm/mswmhr.html. 30 The Honourable High Court of Karnataka. In the matter of W. P. (C). Order Conclusion dated 11 October 2013. Order 46601 of 2012. This review shows that, for every type of waste 31 Suchitra, M. 2013. “Court stays proposed amendments to solid waste man- generated, legislation exists which, on paper, is adequate. agement rules”. Down to Earth, 21 October 2013. Online at http://www.downtoearth.org.in/news/court-stays-proposed-amendments-to-solid-waste-management- However, certain aspects of scientific collection, rules-42524; and Suchitra, M. 2013. “Municipal solid waste rules amendments: transportation, storage and eventual disposal are not being MoEF asked to formulate new draft”. Down to Earth, 2 November 2013. Online observed. The effective participation of major stakeholders at http://www.downtoearth.org.in/news/municipal-solid-waste-rules-amendments- i.e., the society and administration when in tandem with moef-asked-to-formulate-new-draft-42616. 32 Supra, note 25. the implementation of rules in the right spirit will change 33 MoEF. 4 May 2010. Batteries (Management and Handling) Rules, 2001. the situation of solid waste management in India. Notification. Online at http://www.envfor.nic.in/legis/hsm/leadbat.html. 34 MoEF. 16 May 2001. Batteries (Management and Handling) Amendment Notes Rules, 2010. Notification. Online at http://envfor.nic.in/legis/hsm/SO1002.pdf. 1 Bhave, P. and Kulkarni, N. 2015. “Air Pollution and Control Legislation in 35 MoEF. 28 July 1989. Hazardous Wastes (Management and Handling) Rules, India”. Journal of The Institution of Engineers (India) Series A 96(3): 259–265. 1989. Online at http://envfor.nic.in/legis/hsm/hsm1.html. 2 Robinson, J. 2015. “The 20 Fastest-Growing Economies This Year”. 36 MoEF. 6 January 2000. Hazardous Wastes (Management and Handling) BloombergBusiness, 25 February 2015, at http://www.bloomberg.com/news/artiAUTHOR- Amendment COPY Rules, 2000. Online at http://envfor.nic.in/legis/hsm/hwamdr.html; cles/2015-02-25/the-20-fastest-growing-economies-this-year. and see “Comments on Hazardous Waste Management & Handling Rules, 1989 3 Central Pollution Control Board, Ministry of Environment, Forest and Climate (as amended 2003)”. Online at http://mpcb.gov.in/hazardous/images/pdf/Re- Change. 2015. “Suggested/Indicative ‘Action Plan for Management of Municipal port%20with%20Annexure/Chapter%20IV%20Final.pdf. Solid Waste’”. Online at http://www.cpcb.nic.in/NGT-orderdatedFeb-05-2015.pdf. 37 MoEF. 24 September 2008. Hazardous Wastes (Management, Handling 4 The Environment (Protection) Act, 1986 (Act No. 29 of 1986). Online at http:// and Transboundary Movement) Rules, 2008. Notification. Online at http:// envfor.nic.in/legis/env/env1.html. envfor.nic.in/legis/hsm/HAZMAT_2265_eng.pdf; and MoEF. 21 July 2009. 5 Statement of Objects and Reasons appended to the Constitution (Forty-fourth Hazardous Wastes (Management, Handling and Transboundary Movement) Amendment) Bill, 1976 (Bill No. 91 of 1976) which was enacted as the Constitution Amendment Rules, 2009. Notification. Online at http://envfor.nic.in/legis/hsm/ (Forty-second Amendment) Act, 1976. Online at http://indiacode.nic.in/coiweb/ SO1799E.pdf. amend/amend42.htm. 38 Ministry of Law and Justice. 2 June 2010. National Green Tribunal Act, 2010 6 Jabbra, J.G. and Dwivedi, O.P. (Eds) 1998. Governmental Response to Envi- (No. 19 of 2010). Notification. Online at http://www.moef.nic.in/downloads/pub- ronmental Challenges in Global Perspective, at 148–149. Amsterdam: IOS Press. lic-information/NGT-fin.pdf. 7 [Described in informal online sources as “an ancient Hindu treatise on state- 39 See http://www.moef.nic.in/downloads/rules-and-regulations/1035e_eng.pdf. craft, economic policy and military strategy, written in Sanskrit”. Wikipedia – the 40 Supra, note 24. free encyclopedia. Entry entitled “Arthashastra”. – Ed.] 41 MoEF. 7 February 2011. Press Note: “Plastic Waste (Management and Handling) 8 Supra, note 1. Rules, 2011”. Online at http://mpcb.gov.in/images/pdf/PRESSNOTE_Pastic.pdf. 9 The Indian Penal Code, 1860 (Act No. 45 of 1860; 6 October 1860). Online at 42 Supra, note 24. http://ncw.nic.in/acts/THEINDIANPENALCODE1860.pdf. 43 Website of the Ministry of Environment, Forest and Climate Change, at http:// 10 The Sarais Act, 1867 (Act No. 22 of 1867; 15 March 1867). Online at http:// envfor.nic.in/division/introduction-12. ludhianapolice.in/download/SaraisAct1867.pdf. 44 Ibid. 11 The Obstructions in Fairways Act, 1881 (Act No. 16 of 1881). Online at http:// 45 Ibid. www.dgll.nic.in/WriteReadData/CMS/ObstructionAct.pdf. 46 Ibid. 12 The Indian Ports Act, 1908 (Act No. 5 of 1908). Online at http://www.mumbai- 47 Ibid. See also https://www.unece.org/fileadmin/DAM/trans/danger/publi/ghs/ port.gov.in/writereaddata/linkimages/6177609667.pdf. ghs_rev04/English/ST-SG-AC10-30-Rev4e.pdf for the full text of the Globally Har- 13 The Factories Act, 1948 (Act No. 63 of 1948; 23 September 1948). Online at monized System of Classification and Labelling of Chemicals. http://mpsdma.nic.in/Website_Material/Factories_Act.pdf. 48 [Indian legislation grants special status to PIL cases. See Dreyfus, M. 2013. 14 The Atomic Energy Act, 1962 (Act No. 33 of 1962; 15 September 1962). On- “The Judiciary’s Role in Environmental Governance: The Case of Delhi”. EPL line at http://dae.nic.in/?q=node/153. 43(3): 167–174. Ed.]

49 PARIVESH Newsletter. “Public Interest Litigations – December 2002”. Online 59 NGT. 18 March 2015. Saloni Singh et al. v. Union of India et al. Orders of at http://www.cpcb.nic.in/upload/Newsletters/Newsletters_17_2002.pdf. the Tribunal. Online at http://www.greentribunal.gov.in/Writereaddata/Down- 50 Ibid. loads/141-2014(PB-I)OA18-3-2015.pdf. 51 Unattributed online list entitled “Hazardous Waste Supreme Court Directives”. 60 NGT. 28 April 2015. Vardhaman Kaushik v.Union of India et al.; and Sanjay Online at http://cpcb.nic.in/wast/hazardouswast/SupremeCourtDirectives.pdf. Kulshrestha v. Union of India et al. Orders of the Tribunal. Online at http://www. 52 Supra, note 41. greentribunal.gov.in/Writereaddata/Downloads/21-2014(PB-I)OA28-4-2015.pdf. 53 Supra, note 51; and Supreme Court of India. 30 January 2014. Order. Writ 61 NGT. 28 May 2015. Rohit Choudhury v. Union of India et al. Orders of Petition (Civil) No. 309 of 2003. Laxmi Narain Modi v. Union of India and others. the Tribunal. Online at http://www.greentribunal.gov.in/Writereaddata/Down- Online at http://supremecourtofindia.nic.in/outtoday/wc30903.pdf. loads/19-2015(EZ)OA-28-5-2015.pdf. 54 Website of the National Green Tribunal (NGT), at http://www.greentribunal. 62 NGT. 2 July 2015. Indian Council for Enviro-Legal Action v. National Ganga gov.in/history.aspx. River Basin Authority et al. Orders of the Tribunal. Online at http://www.greentribu- 55 NGT. 26 February 2014. Manoj Kumar Misra et al. v. Union of India et al. nal.gov.in/Writereaddata/Downloads/27-2015(PB-I)MA2-7-2015.pdf. Orders of the Tribunal. Online at http://www.greentribunal.gov.in/Writereaddata/ 63 NGT. 13 July 2015. Davinder Kumar v. Union of India et al.; and Almitra H. Downloads/300-2013(OA)_26Feb2014.pdf. Patel et al. v. Union of India et al. Orders of the Tribunal. Online at http://www. 56 NGT. 22 April 2014. Between Applicants Deshpande Jansamsaya greentribunal.gov.in/Writereaddata/Downloads/199-2014(PB-I)OA13-7-2015.pdf. Niwaran Samiti et al. and the State of Maharashtra et al. Judgement. Online at 64 NGT. 21 July 2015. Manoj Mishra v. Union of India et al.; and Manoj Kumar http://www.greentribunal.gov.in/Writereaddata/Downloads/32_2013(THC)(App) Misra et al. v. Union of India et al. Orders of the Tribunal. Online at http://www. (WZ)_22Apr2014_final_order.pdf. greentribunal.gov.in/Writereaddata/Downloads/6-2012(PB-I)OA21-7-2015.pdf. 57 NGT. 3 November 2014. Almitra H. Patel et al. v. Union of India et al. Orders 65 Waste Management World. 3 February 2005. E-paper: “Pay as you throw: of the Tribunal. Online at http://www.greentribunal.gov.in/Writereaddata/Down- Options, economics and prospects across Europe”. Online at http://www.waste-man- loads/OA-199-2014(PB)-3-11-2014.pdf. agement-world.com/articles/2005/03/pay-as-you-throw.html. 58 NGT. 13 January 2015. Manoj Misra et al. v. Union of India, Through the Secre- 66 Pro Europe website, at http://www.pro-e.org/Overview.html. tary, Ministry of Environment and Forest et al. Judgement. Online at http://www.greentribunal.gov.in/Writereaddata/Downloads/6-2012(PB-I-Judg)OA-13-1-2015.pdf.

Nigeria Sanitation and Waste Management – Part 1: Overview – by Muhammed Tawfiq Ladan*

The Nigerian environment is richly endowed with disposal are very unsatisfactory.8 Further, some of the waste abundant and diverse natural resources1 that are vital for materials are toxic, hazardous, infectious and harmful to both the survival, health and quality of life of the populace. human, animal and plant life.9 The costs of lost productivity, Rapid population growth2 without commensurate provision reduced educational potential, negative impacts on health, of infrastructure and basic social services, however, has and discouragement of potential tourists/investors, constitute led to poor environmental sanitation3 characterised by a major drain on local and national economies. increased urban slums, overstretched sanitaryAUTHOR facilities, the Wide-ranging COPY actions are required to solve generation and poor disposal of domestic, commercial and environmental sanitation and waste management problems industrial wastes,4 and a general reduction in the people’s in order to reduce and avert their adverse health, economic quality of life and standard of living.5 and developmental effects. This is a key element of the There cannot be a healthy nation without a healthy role of environmental courts in ensuring compliance with environment. A healthy environment, free from all forms the rule of law for effective environmental protection, a of pollution, promotes healthy living and improves the healthier nation and promoting sustainable development productivity level of a nation; it is also a fundamental for the benefit of present and future generations.10 human right of all Nigerians.6 Against this background, this paper aims at realising Waste management is worst in urban/peri-urban areas. the following objectives: Most city centres do not benefit from public waste disposal i. To identify and clarify a set of relevant key terms as services and their residents have to bury or burn their waste one of the core legal issues for consideration; or otherwise dispose of it haphazardly.7 In most cities and ii. To provide an overview of the legislative, regulatory peri-urban centres, refuse heaps are left unattended. Where and institutional mechanisms for environmental State or local government authorities do undertake waste sanitation and waste management with a view to collection, it is often irregular and sporadic. The treatment determining the nature and scope of the liability and recycling of waste is negligible while methods of regime for violation of environmental regulations storage, collection, transportation, compaction and final and standards related to public health protection and promotion of sound environmental sanitation through effective waste management in Nigeria; * Ph.D.; Professor, Department of Public Law, Faculty of Law, Ahmadu Bello University, Zaria, Kaduna State, Nigeria; Member, World Jurist iii. To underscore the critical role of environmental/ Association; and Hubert Humphrey Fellow. sanitation courts in upholding the rule of law for

public health protection by ensuring effective waste the environmental sanitation exercise is not in itself management and promoting access to environmental unlawful, but what is unlawful and unconstitutional is justice and remedy; the restriction imposed by the respondents during the iv. To conclude with some viable options for Nigeria. exercise”.13 The plaintiff in this case had earlier obtained judgement The first two of these objectives are addressed in this part after arguing that §39 of the Lagos State Environmental (Part 1) of this article, with the last two appearing in Part 2. Sanitation Law of 2000 could not be the basis of restricting human movement on Saturdays, as no regulation in force Understanding the Key Legal Terms and had indeed been made for that purpose. Having privatised Concepts and commercialised waste management in Lagos by The following discussion will provide a basis for making people pay for waste disposal, the State government this article, discussing key terms relevant to the topic lacked the right to turn around to restrict human movement under consideration – the statutory definitions of terms, for environmental sanitation.14 including judicial interpretation where necessary. It focuses Challenging the judgement on appeal, Lagos State on the concepts of “environmental sanitation”, “waste”, Government, in a further affidavit, made reference to “waste management”, “environmental enforcement” and and read §§28(1) and (2) of the amended Environmental “environmental courts”. Sanitation Edict of 1987, which, though not brought to the judge’s attention earlier, empowered the government and Nature and Scope of Environmental Sanitation its specified agents to restrict movement and arrest without The term “environmental sanitation”11 is defined as the warrant during such monthly exercises. Accordingly, the principles and practice of effecting healthy and hygienic Federal High Court Judge issued a fresh order putting a hold conditions in the environment to promote public health and on enforcement of the 16 March 2015 judgement that had welfare, improve quality of life, reduce poverty and ensure nullified the restrictions of movement during the monthly a sustainable environment. sanitation exercise until the outcome of the appeal filed by The essential components of environmental sanitation Lagos State is determined.15 include: i. Solid waste management; Waste and Waste Classification ii. Medical waste management; The term “waste” is any liquid, solid or gaseous iii. Excreta and sewage management; material, substance or object which is no longer wanted iv. Food sanitation; but intended to be discarded or disposed of because it v. Sanitary inspection of premises; has become useless and currently valueless.16 At the vi. Market and abattoir sanitation; national level, there is no definition of this term in vii. Adequate potable water supply; connection with sanitation or refuse (neither the National viii. School sanitation; Environmental Standards and Regulations Enforcement ix. Pest and vector control; Agency (NESREA) Act,17 including its 24 regulations,18 x. Management of urban drainage; nor the Harmful Wastes (Special Criminal Provisions) Act19 xi. Control of reared and stray animals; define it). The definitions of “waste” that exist are found at xii. Disposal of the dead (people and animals); the state level. Under §29 of the Lagos Waste Management xiii. Weed and vegetation control; andAUTHORAuthority COPY Law, 2007: xiv. Education and promotion regarding hygiene. “waste” means all waste materials, whether solid or liquid including but not limited to garbage, refuse Regarding the exercise of a State Government’s and other discarded waste materials resulting from environmental sanitation responsibilities, a court has industrial, commercial and agricultural operations, examined the question of whether the restriction of including waste from mines and quarries and shall citizens’ movements during such activities violates the also include – 1999 Nigerian Constitution (as amended) and whether a) any substance which constitutes a scrap material it is, therefore, unlawful and unconstitutional. In the or an effluent or other unwanted surplus case of Ebun-Olu Adegboruwa v. IGP, COP Lagos substance arising from the application of any State, Governor of Lagos State, Commissioner for process; and Environment and Ministry of Environment, Lagos State b) any substance or article which requires to (2015),12 a Federal High Court Judge in Lagos held that be disposed of as being broken, worn out, restricting the movements of citizens during the monthly contaminated or otherwise soiled; environmental sanitation exercise in the State did indeed c) anything which is discarded or otherwise dealt violate citizens’ constitutional rights to personal liberty with as if it were waste shall be presumed to be and freedom of movement guaranteed under §§35 and waste. 41 of the Constitution, because there was currently no law to that effect. He ruled against the arrest of persons In §3 of the Kaduna State Environmental Protection found moving during the exercise period; however, Authority (Substitution) Law, 2009,20 “waste” is defined as he did not overrule the sanitation exercise, because, “any waste that is harmful or injurious” to human, animal in his own words, “I must state, loud and clear, that and plant life.

In the British case of Kent County Council v. In Nigeria, the term “domestic waste” is statutorily Queensborough Rolling Mills Co. Ltd,21 adjudicating a defined by §29 of the Lagos Waste Management Authority similar definition in §75(2) of the UK Environmental Law as “garbage and other discarded solid waste from a Protection Act, 1990, the term “unwanted” was specifically private material resulting from dwelling or residential home addressed. The case considered material from a disused or tenement, a university or school or other educational site that was being cleared by a demolition company (the establishment, a hospital or nursing home and includes defendant). The company argued that the material was not liquid waste and carcass of animals”,24 and is also known waste because it was put to a useful purpose and therefore as municipal, household or community waste. Regulation could not be unwanted. Justice Pill held that although 106 of the National Environmental (Sanitation and Wastes the material was put to a purpose, this was not a relevant Control) Regulations 2009, defines “community waste”25 consideration in deciding whether or not it was waste. The as “non-hazardous wastes generated from households, important factor was the nature of the material at the time commercial and institutional land uses, construction sites, it was discarded. street wastes and recreational facility”. In Nigerian law, the words “unwanted” and “discarded” The Regulation further defined “municipal solid appear in federal legislation on nuclear safety and radiation waste” as “any garbage, refuse, sludge, rubbish, tailings, protection,22 which defined “wastes” in the nuclear context debris, litter and other discarded materials resulting from as including the following: residential commercial or institutional facilities which are (a) [any] substance which constitutes scrap material commonly accepted at a municipal solid waste management or an effluent or other unwanted surplus substance facility, but excludes wastes from industrial activities arising from the application or any process and also regulated by the NESREA”.26 includes any substance or article which is required to “Commercial wastes” are wastes generated from be disposed of as being broken, worn out, contaminated premises used wholly or mainly for purposes of trade, or otherwise spoilt; business, sports, civil services etc. This type of waste (b) any substance or article which in the course of appears also to be covered by the broader definition of carrying on any process provided for in this Act, is “community waste”. discharged, discarded or otherwise dealt with as if Statutorily defined by Regulation 106,27 “industrial it were waste, shall for the purposes of this Act, be waste” means “waste arising from processing and presumed to be waste unless the contrary is proved.23 manufacturing industries or trade undertakings and can take the form of liquid, non-liquid, solid and gaseous Legislative Classifications of Wastes substances”. There are various types of wastes and their classification Due to the complexity of the nature, volume and effect is a matter of convenience. For instance, wastes may be of wastes resulting from industrial activities characterised classified according to their sources, on the basis of their by their technological process, size, nature of products, character or by the appropriate means of their management types of wastes produced and the receiving environment as depicted in Table 1 below. of discharged wastes, the following standards, guidelines and best practices have been laid down for compliance Table 1. Classification of wastes AUTHORand enforcement: COPY

0378-777X/15/$27.50 © 2016 IOS Press 178 Environmental Policy and Law, 46/2 (2016) i. Effluent limitation, soil quality and noise standards persist very long in the form in which they are discarded. for the chemicals, pharmaceutical, soap and detergent Examples are glass, oil, metals, plastics, and mining and manufacturing industries;28 minerals-derived wastes.47 ii. Gaseous emission guidelines for emissions from pharmaceutical, petroleum-based, chemical and Particular Characteristics and Subcategories of inorganic chemical industrial sectors;29 “Hazardous Wastes” iii. Effluent limitation, soilquality and noise standards as “Hazardous waste” is any waste or combination of well as air emission guidelines for the food, beverages wastes that exhibits ignitable, corrosive, reactive or toxic and tobacco industries;30 characteristics and poses a substantial danger, now or iv. Effluent limitation, emission quality and noise in the future, to human, plant or animal life, and which standards as well as guidelines for emission control therefore cannot be handled or disposed of without special and emergency response plans for mining and precautions.48 Statutorily, “hazardous waste” has been processing of coal, ores and industrial minerals;31 defined at both the federal and state levels in Nigeria. For v. Quality standards for sources of domestic water and instance, Regulation 54 of the National Environmental disposal of industrial effluents and guidelines for food (Food, Beverages and Tobacco Sector) Regulations, handlers, pest and vector control, waste collection 2009,49 defines “hazardous wastes” as: and transportation, extended producers responsibility any solid, liquid or gas wastes that can cause death, programme, permissible limits for waste-water illness, or injury to people or destruction of the discharge, waste-water treatment facility, labelling environment if improperly treated, stored, transported and packaging of hazardous waste containers, as well or discarded. Substances are considered hazardous as treatment methods of healthcare wastes;32 wastes if they are ignitable (capable of burning or vi. Effluent limitation, soil quality and noise standards causing a fire), corrosive (able to corrode steel or and air emissions guidelines for the textile, wearing harm organisms because of extreme acidic or basic apparel, leather, tannery and footwear industries;33 properties), reactive (able to explode or produce toxic vii. Standards and guidelines for the base metals, iron and cyanide or sulfide gas), or toxic (containing substances steel manufacturing/recycling industries;34 that are poisonous). Mixtures, residues, or materials viii. Standards and guidelines for the domestic and containing hazardous wastes are also considered industrial plastic, rubber and foam sector;35 hazardous wastes.50 ix. Standards and guidelines for the construction sector;36 x. Standards and guidelines for the non-metallic minerals Similarly, §29 of the Lagos Waste Management manufacturing industries;37 Authority Law51 defines “hazardous waste” as follows: xi. Standards and guidelines for the electrical and Any waste possessing the following qualities: electronic equipment sector;38 a) liquid waste which has a flash point of less than xii. Standards and guidelines for the quarrying and or equal to 140 degrees F (60 degrees C) as blasting operations sector;39 determined by an approved test method; xiii. Standards and guidelines for the pulp and paper, wood b) non liquid waste which, under standard and wood products sector;40 conditions, is capable of causing a fire through xiv. Standards and guidelines for the motor vehicle and friction, absorption of moisture or a spontaneous miscellaneous assembly sector;41 AUTHORand COPYchemical change and when ignited, the waste xv. Standards and guidelines for telecommunications and burns vigorously and persistently that it extracts broadcasting facilities.42 a hazard; c) an ignitable compressed gas or oxidizer. It is evident from the above that the distinction between d) waste which may pose a substantial present industrial and commercial wastes, though often maintained, or potential hazard to human health or the may indeed be sometimes so blurred as to render the two environment when improperly treated, stored or types of waste indistinguishable in some cases. This is disposed of, or otherwise mismanaged; or perhaps the reason why the two types are sometimes e) wast e which may cause or contribute to an statutorily defined together.43 increase in motility, or an increase in irreversible Wastes resulting from agricultural activities are referred or incapacitating illness. to as “agricultural wastes”. They include materials like plant remains, tree and shrub trimmings, grass clippings, leaves, trees It is evident from these two statutory definitions that and stumps,44 chaff of millet, cobs of maize and corn stalks.45 hazardous wastes are potentially dangerous and harmful Like other wastes, industrial wastes can be further to human health and the natural environment, and classified into biodegradable and non-biodegradable. therefore require special handling for detoxification, Biodegradable waste is any substance that can be safe transportation and safe disposal. Hazardous wastes decomposed by micro-organisms46 or which can decompose are harmful wastes based on their definition in §15 over time via a bacterial action. This type of waste is largely of the Harmful Waste (Special Criminal Provisions, generated from agro-based or food-based industries. On etc.) Act:52 the other hand, non-biodegradable wastes are substances any injurious, poisonous, toxic or noxious substance which cannot be broken down by biological processes but and, in particular, includes nuclear waste emitting any

radioactive substance if the waste is in such quantity, These include: whether with any other consignment of the same or i. Radioactive waste (material and equipment); of different substance, as to subject any person to the ii Decommissioned explosives (ammunition, risk of death, fatal injury or incurable impairment fireworks, etc.); of physical and mental health; and the fact that the iii Waste resulting from prospecting, extraction, harmful waste is placed in a container shall not, by treatment, and storage of mineral resources; itself, be taken to exclude any risk which might be iv. Waste deposited or discharged into waterways expected to arise from the harmful waste.53 under Federal jurisdiction; and v. Any other waste so defined. Hazardous wastes therefore include any wastes that have the characteristics of radioactive, chemical, Beyond this, “radioactive/nuclear waste” is any healthcare/medical and e-wastes. They are further divided radioactive material that has been, or will be, discharged into particular categories:54 as being of no further use.55 It is formally defined in §48 of a) Waste that exhibits any of the following hazardous the Nuclear Safety and Radiation Protection Act:56 properties: i) explosive, ii) flammable liquids or a) A substance or article which if it were not wastes solids, iii) poisonous, iv) toxic, v) ecotoxic, and would be regarded as a useful radioactive vi) infectious substances. material or radiation source. b) Wastes that belong to any of the following b) A substance or article which has been categories: i) clinical wastes; ii) waste oils/ contaminated in the course of the production, water, hydrocarbons/water mixtures, emulsions; storage or use of radioactive material or by iii) wastes from the production, formulation and contact with or proximity to other wastes falling use of resins, latex, plasticisers, glues or adhesives; within the provisions of this decree. iv) wastes resulting from surface treatment of metals and plastics; v) waste arising from Most radioactive wastes result from the production industrial processes; vi) residues arising from of nuclear weapons, in electricity generation, in the industrial waste disposal operations; and vii) petroleum, agricultural and mineral exploration industries. wastes which contain certain compounds such as For example, a spent chip of uranium is radioactive waste. copper, zinc, cadmium, mercury, lead and asbestos. Healthcare waste is also specially defined: c) End-of-life waste of household electrical and [waste] which is electronic appliances or residues arising from a. generated during the diagnosis, treatment or the incineration of the same. immunization of human beings or animals or in d) Waste that contains dangerous substances above research or activities pertaining thereto or in the standard limits established by the Agency based production or testing of biological experiments; on scientific factors or as a result of international b. gen erated in medical and health institutions commitments. (dispensaries, hospitals, polyclinics and e) Special wastes which are highly dangerous outpatient departments, dental clinics, veterinary substances or objects that are under the concurrent stations, pharmacies, patent medical shops control of both federal and stateAUTHOR governments. COPYetc.), as a result of use or contamination during

Table 2. Categories of healthcare waste (Regulations 54, 57, 88 and 90) 1 Infectious waste Waste suspected to contain pathogens e.g,. laboratory cultures, waste from isolation wards, tissues (swabs), materials, or equipment that have been in contact with tubings, catheters, IGS toxins, live or attenuated vaccines, soiled plaster gauze and other materials contaminated with blood or excreta of infectious patients. 2 Pathological waste Human and animal tissues or fluids e.g., body parts, blood and other body fluids, foetuses, animal carcasses. 3 Sharps Needles, infusion sets, scalpels, knives, blades, broken glass that may cause punctures and cuts. This includes both used and unused sharps. 4 Pharmaceutical waste Waste containing pharmaceutical e.g., pharmaceuticals past their expiry date or no longer needed; items contaminated by or containing pharmaceuticals (bottles, boxes). 5 Genotoxic waste Waste containing substances with genotoxic properties e.g., waste containing cytostatic drugs (often used in cancer therapy), genotoxic chemicals. 6 Chemical waste Waste containing chemical substances e.g., laboratory reagents; film developer, disinfectants, solvents past their expiry date or no longer needed. 7 Waste with high heavy metal content Batteries, broken thermometers, blood-pressure gauges, etc. 8 Pressurised containers Gas cylinders, gas cartridges, aerosol cans. 9 General solid waste Waste generated from offices, kitchens, packaging materials from stores. 10 Microorganisms Any biological entity, cellular or non-cellular capable of replication or of transferring genetic material.

diagnosing, medical treatment and prevention of Thus, waste management covers waste generation, diseases in humans and animals; collection, processing and disposal as well as supervision of these operations.65 Proper management of solid, liquid, “Toxic chemical” is statutorily defined57 as a “substance gaseous and harmful/hazardous wastes aims at enhancing which on entry into an organism through ingestion, inhalation the quality of human, animal and plant life as well as and dermal contact is injurious, causes physiological or protecting the environment for sustainable development.66 biochemical disturbances or otherwise causes deterioration To ensure effective waste management in Nigeria, of the functions of the organism in any way”; and e-waste58 institutional roles and responsibilities between federal, state (or electrical or electronic equipment waste) is a component and local governments have been clarified67 and guidelines of electrical or electronic equipment that is no longer suitable have been issued addressing, inter alia, waste collection for use or that the last owner has discarded. and transportation; the extended products responsibility programme; permissible limits for waste-water discharges Other Types of Wastes and treatment facilities; labelling and packaging of Beyond these categories, the following types of wastes hazardous waste containers, and a national colour coding are also separately statutorily defined: system for healthcare waste.68 • “Municipal solid waste”59 means “garbage, refuse, The laws, regulations and guidelines recognise various sludge, rubbish, tailings, debris, litter and other discarded methods of waste management utilising a variety of materials resulting from residential, commercial or approaches: institutional facilities which are commonly accepted i. “Composting”:69 the biological decomposition at a municipal solid waste management facility, but of organic materials, substances or objects under excludes wastes from industrial activities regulated controlled circumstances to a condition sufficiently by the Agency”; stable for nuisance-free storage and safe use in land • “Packaging waste”60 means “any materials that are applications. The word “compost” means a product used for storage, protection, handling, delivery and of composting which is used or sold for use as a soil presentation of goods that the holder has discarded, amendment, artificial topsoil or growing medium or intends to discard or is required to discard, except for for some other application to land.70 the residues from the production”; ii. “Incineration”:71 the controlled burning of solids, • “Waste oil”61 means “any mineral, synthetic or industrial liquids, gaseous combustible waste to produce gases oils in liquid or semi-liquid state that have become unfit and residues containing little or no combustible for the use they had been originally intended, and in materials. The word “incinerator” means a facility particular used oils for internal combustion engines, designed or used for the primary purpose of oils for gearboxes, as well as oils for turbines and destruction of municipal solid waste by combustion. hydraulic oil”; iii. “Disposal site”:72 any area of land on which waste • “End-of-life waste”62 means a “post-consumer waste disposal facilities are physically located or final consisting of a product, appliance, equipment or discharge point without the intention of retrieval but machinery (e.g., a tyre, vehicle, television, cooker, does not mean a re-use or re-cycling plant or site. refrigerator, mobile phones, etc.) that may have physical iv. “Litter bins”:73 receptacles used for receiving integrity but has lost its utility value and which the discarded and disused items. owner has discarded, intended to discardAUTHOR or is required v. COPY“Sanitary landfill”:74 disposing of refuse on land to discard; and without creating nuisances or hazards to public health • “Leaf and yard waste”63 means “vegetative matter or safety but utilising the principles of engineering resulting from gardening, horticulture, landscaping to confine the refuse to the smallest practical area, to or land-clearing operations, including materials such reduce it to the smallest practical volume, and to cover as tree and shrub trimmings, plant remains, grass it with a layer of earth at the conclusion of each day’s clippings, leaves, trees and stumps”, but excludes operation or at such more frequent intervals as may “construction and demolition debris or contaminated be necessary. organic matter”. vi. “Waste treatment”:75 any method, technique or process for altering the biological, chemical or physical Waste Management characteristics of waste to reduce the hazards it Another critical statutory term, “waste management”, presents, including mechanical, physical, thermal, is very specifically defined: chemical or biological processes, as well as sorting, to (a) … planning, handling, treatment, processing the extent that they result in change in the properties of and disposal, including the supervision of these the waste overall, with a view to reducing the volume operations, as well as the measures for protection of or hazardous nature thereof, facilitating the handling the environment and of human life and health during or making it more suitable for processing disposal. the operation of the facilities and installations for waste vii. “Waste processing”:76 operations specified by law to disposal, and the care taken after the termination of enable waste recovery – the utilisation of the usable their operations, generation and of its negative impact substances and components of waste, including the on the environment, human life and health, including procedures for re-use, recycling and use of waste as waste handling.64 energy source (with the exception of waste burning) for

the final disposal of waste. As used here, “re-use” means Statutorily, in the environmental context, the term waste used again with or without cleaning or repairing. “enforcement” is defined to mean “actions to obtain viii. “Waste recycling”:77 obtaining substances from waste compliance with environmental laws, rules, regulations (secondary raw materials) and their substitution for or agreements or obtain penalties or criminal sanctions for primary raw materials. It includes the use of properties violations”.86 “Environment” is also statutorily defined to of the substances contained in the waste for their initial mean “the sum of all external conditions affecting the life, purpose or for other purposes, excluding the direct use development and survival of an organism”.87 of the energy of the waste. Section 20 of the Constitution of Nigeria88 sets out the ix. “Waste management facility”:78 an establishment, fundamental environmental objective by declaring that, “the including fixed or mobile machines, equipment, states shall protect and improve the environment and safeguard premises or land, used for the sole purpose of the water, air and land, forest and wildlife of Nigeria”. managing the final disposal of solid waste. x. “Waste storage”:79 temporary placement of waste for isolation, environmental and health protection, and human control, to ensure that waste is subsequently retrieved for treatment and conditioning or disposal. xi. “Waste handling”:80 the collection, segregation, transportation and storage of waste.

As is evident from the above, apart from the security it offers for human, animal and ecological health, proper management of wastes can be a great asset to agricultural and manufacturing industries. Firstly, bio-degradable industrial wastes, especially those which are agro-based, food-based or wood-based, can be turned into manure and used to Courtesy: Bioenergy Consult enrich agricultural production, thus promoting increased and cheaper food supply. Secondly, if certain types of industrial Hence, “environmental enforcement” is one of the key wastes (e.g., plastic, metal, glass, paper and so on) are elements of environmental governance, to ensure that the properly sorted and recycled, they provide a local and cheap ambitious goals of our environmental status are realised. source of raw materials for industries and a substantial saving Enforcement refers to the set of actions that the government in foreign exchange. Thirdly, the increased availability of can take to promote compliance with environmental law. local raw materials will lead to expansion in the number It is indeed the application of all available tools to achieve and capacity of industries and generate more employment, compliance, including compliance promotion, compliance improved income and social wellbeing.81 monitoring and non-compliance response. In a narrow Obviously, the harmful effects of poorly managed sense, enforcement can be defined as the set of actions that wastes, especially hazardous wastes, including the potential governments or others take to correct or halt behaviour that dangers of air and water pollution as well as hazards to fails to comply with environmental management requirements: human health, animal and plant life, must also be addressed. • Inspections to determine the compliance status of the AUTHORregulated COPY community and to detect violations. Environmental Enforcement • Negotiations with individuals or facility managers who Environmental management cannot be achieved are out of compliance to develop mutually agreeable without effective environmental governance including the schedules and approaches for achieving compliance. enforcement of environment laws and regulations at both • Legal action, where necessary, to compel compliance national and local levels. Through laws and regulations, and to impose some consequence for violating the law or the State controls those human and corporate activities that posing a threat to public health or environmental quality. have significant impact on the environment. These State • Enforcement may also include compliance promotion tools of environmental governance give all stakeholders (the (e.g., educational programmes, technical assistance, State, industry and civil society organisations) and different subsidies) to encourage voluntary compliance. sectors of the economy, as well as individuals, a precise indication of which activities they can undertake, which Why are compliance and enforcement important? An activities are forbidden and what their responsibilities are effective compliance strategy and enforcement programme in the event that their activities jeopardise any component brings many benefits to society: of the environment.82 This has justified the creation of • Firstly, and most important, they promote improved federal and state ministries of environment,83 as well as environmental quality and public health. the establishment of national and state environmental • Secondly, compliance reinforces the credibility of protection agencies and state environmental sanitation and environmental protection efforts and the legal systems waste management authorities84 with enforcement powers that support them. to ensure compliance with environmental regulation, • Thirdly, an effective enforcement programme helps standards and guidelines in the best interest of both the ensure fairness for those who willingly comply with current and future human generations.85 environmental requirements.

• Finally, compliance can bring economic benefits to to transport and dispose of the wastes in a designated individual facilities and to society. waste management facility. 6(1) All food vendors shall, in line with National Policy Environmental Courts Guidelines on Food Sanitation Environmental courts are a class of courts or tribunals a. ensure that litter and other wastes do not pollute designated for the trial of environmental offences and the environment; empowered to impose both civil and criminal sanctions b. maintain hygiene or cleanliness of the location on violators of environmental rules, regulations and of business at all times; and standards.89 c. collect and dispose of all waste generated in the In most states of the Nigerian federation, they are course of business to a designated collection magistrates’ courts or tribunals or such mobile courts as point. may be established or constituted by the Chief Judge of a 10(1) Every owner of premises shall state with jurisdiction and powers over all environmental a. provide potable water supply for the premises matters specified under any environmental protection law to ensure sound environmental sanitation and or sanitation and waste management law of a state.90 In personal hygiene; some states (e.g., Lagos), they are known as “appropriate b. provide adequate number of toilets for the courts”, which include a Customary Court, Magistrates’ occupants as prescribed in Schedule 3 to the Court and High Court of the State.91 At the national level, regulations. such a court is either the Federal or State High Court 64(1) States shall establish sanitation and integrated with general jurisdiction to hear and determine any civil waste management programs and ensure the provision proceedings in which the existence or extent of a legal and maintenance of right, power, duty, liability, privilege, interest, obligation a) abattoirs; or claim is at issue or to hear and determine any criminal b) adequate toilets and urinals in public places; proceedings involving or relating to any penalty, forfeiture, c) waste receptacles in the streets and premises of punishment or other liability in respect of an offence all kinds. committed by any person.92 They have jurisdiction over any matter conferred on the Federal High Court by any act Regulations 71–93 provide for various offences. Under of the National Assembly (Legislature) or conferred on the Regulation 71, for example: State High Court by any law of a State House of Assembly. It shall be an offence for an owner or occupant in care of premises or in control or management of a business to – Overview of Environmental Sanitation and a) release or cause litter to be released into the Waste Management Offences, Liability and environment; Sanctioning Regimes b) fail to contain and dispose of litter at construction At the national level, §25 of the NESREA Act empowers or demolition sites regularly; the Agency to make regulations on environmental sanitation c) fail to segregate waste for proper management; for the purpose of protecting public health and promoting d) fail to provide standard containers for storage of sound environmental sanitation in Nigeria. Any person sorted wastes before collection; who violates the provisions of the regulations under this e) fail to provide, service, maintain or empty section shall be guilty of an offence andAUTHOR punished under COPYreceptacles for litter and recyclable materials; the penalties imposed in those regulations. Section 27 of f) fail to keep litter away from 15 meters within the the Act makes it a punishable offence for any individual or premises or vacant plots; corporate entity to discharge hazardous substances into any g) fail to locate water source away from pollution component of Nigeria’s environment and imposes liability source; ranging from fines to imprisonment. h) fail to immediately clean up or remove debris from The purpose of the National Environmental (Sanitation around a dug well after installing or repairing and Wastes Control) Regulations, 2009, is to promote pumping equipment; sustainable development and environmentally friendly i) construct dug well within 15 meters of soak away practices in environmental sanitation and waste management pit or similar disposal unit or septic tank, refuse to minimise pollution. Under these Regulations: dump, landfill or other source of contamination; 3(1) No person is to discard, throw or drop any litter j) fail to supply information as required for approval or any similar refuse anywhere except in designated to operate waste management facility; litter bins. k) fail to maintain waste management facility in (2) No owner, operator, occupant or person in care, clean and orderly condition; management or control of premises is to allow the l) fail to comply with the decommissioning release of litter into the environment. conditions of waste management facility as may (3) No occupant or passenger of any vehicle is to throw be prescribed by the Agency; or drop any litter onto the streets, roads, highways, m) fail to submit to the Agency within a specific public spaces and other undesignated places. period, information or data about material (4) … any person whose activities generate waste shall received at dumpsite, landfill or incinerator ensure that the waste is handled by a person licensed operations;

n) carry out or allow open burning of any waste the Lagos State Protection Agency Law No. 9 of 1996 materials including confiscated items or materials; with the major aim of protecting and managing the o) own, operate or manage a waste management Lagos environment with other arms of the government’s facility that fails to meet the national standards; regulatory organisations and international agencies. Its p) fail to comply with requirements of the abatement other functions include: or enforcement notices; • Carrying out public enlightenment and education of q) suspend, dismiss or impose penalty on any the public on sound environmental sanitation and employee who reports any contravention of these management. Regulations to the Agency; and • Monitoring and controlling the disposal of solid, r) fail to provide and ensure the use of appropriate gaseous and liquid wastes by available facilities. personal protective equipment while handling, • Monitoring and controlling of all forms of environmental treating or disposing of wastes. degradation.

Under Regulation 77: The agency conducts workshops on pollution control It shall be an offence for any person or facility to: with small-, medium- and large-scale industries in the state. a) release or discharge untreated effluent into the It also monitors these industries, visiting them to confirm environment; their compliance with environmental laws. Punishments b) release effluent and sludge into the environment for non-compliance with the environmental laws range in excess of the permissible level; from sealing the operations of the industry involved93 to c) fail to report release of effluent and sludge into the prosecution of the violators according to the state’s the environment in excess of the permissible level environmental sanitation laws.94 as contained in Schedules 10 and 11 to these The Lagos State Waste Management Authority Regulations. (LAWMA) is a body created under the Lagos Waste Management Authority Law 2007, and charged with Regulations 78–85 provide for offences resulting from responsibility for solid waste collection. The law places badly managed hazardous, toxic and chemical wastes, a duty on the people to maintain clean surroundings. The while Regulations 86–93 provide for various offences functions of the Authority as contained under the law relating to badly managed healthcare wastes. include cleaning streets; removal, collection and disposal of The liability regime addresses both individual and wastes; removing and disposing of abandoned vehicles and corporate entities, and penalties include fines or terms carcasses of dead animals from public places; approving of imprisonment or both. For example, under Regulation and monitoring of all waste disposal systems in the state; 94, any person who violates the provisions of paragraphs and issuance, renewal and revocation of licences of private (a)–(i) of Regulation 71 “shall be guilty of an offence and waste collectors.95 shall on conviction be liable to a fine of N20,000 (Nigerian It is an offence for any person to improperly dispose of naira) or imprisonment for six (6) months or to both such wastes. Liability on conviction may include a fine of N5,000 fine and imprisonment”. or three months imprisonment.96 The law further prohibits Regulations 101–104 provide: the depositing of obnoxious, toxic or poisonous wastes in (101) Any person who violates regulation 77 of these dustbins.97 Contravention of this provision can be punished Regulations shall be guilty of an offenceAUTHOR and shall by a fine COPY of N50,000 or six months imprisonment.98 The on conviction be liable to a fine of not exceeding Lagos Waste Management Authority has the power to make N500,000:00 or imprisonment for two (2) years or to regulations for the effective implementation of this law and both such fine and imprisonment; to prescribe penalties for offences against these regulations.99 (102) Notwithstanding the provisions of these Regulations, The Kaduna State Environmental Protection Authority the provisions of the Harmful Wastes (Special Criminal (Substitution) Law, 2009, provides specific penalties on Provisions, etc.) Act, Cap. H1, Laws of the Federation some types of violations, including, for example, in §17: of Nigeria 2004, shall apply as appropriate, in respect The duty of the owner, caretaker or occupier of property to of offences under these Regulations. “keep [it] clean, neat and free from odour… Cut overgrown (103) Any person who violates regulations 78 to 85 of grasses and trim flowers and hedges … keep [it] and its these Regulations shall be guilty of an offence and shall surrounding free from weeds and poisonous plants; and… on conviction be liable to a fine of N5,000,000:00 or ensure drainage”. Penalties specified are a fine of not less to imprisonment for five (5) years or to both such fine than N2,000 or imprisonment for a term of one month or and imprisonment. both. In addition: (104) Any person who violates regulations 86 to 93 Where the tenement is a government building, the court of these Regulations shall be guilty of an offence and may recommend the ejection of the occupier who has shall on conviction be liable to a fine of N250,000:00 been convicted of any offence under this section on three or imprisonment for eighteen (18) months or to both consecutive occasions…. If any child contravenes any such fine and imprisonment. of the provisions of this section, the parent, guardian or such persons charged with the custody of the child At the state level, the Lagos State Environmental shall be held liable for the offence and dealt with Protection Agency (LASEPA) was established under accordingly…

Similarly under §20, a fine of not less than N5,000 Regulations No. 2, 2009; Regulation 13 of the Kaduna or imprisonment for a term of three months or both fine State Effluent Limitation and Management Regulations and imprisonment is applied to anyone who “Rears or No. 3, 2009 (which also includes the possibility of six keeps animals or birds likely to cause environmental months’ imprisonment); and Regulation 11 of the Kaduna nuisance…. such as offensive odour or noise or neglects State Control and Management of Hazardous Substances or fails to confine the animals or birds in his premises” or Regulations No. 6, 2009 (which also includes the possibility “Uses firewood to cook openly within his premises which of five years’ imprisonment). may constitute a nuisance within the surroundings of his It is evident from the above that liability of individual premises”. The same fine, with imprisonment set at six and corporate violators of environmental sanitation and months, applies under §28 for anyone who: waste management laws and regulations varies greatly. cause[s] or allow[s] the discharge or emission of any This leads to our discussion on the role of environmental contaminant into the environment…which is likely to courts in the above context. cause or tend to cause air pollution, or is in breach of standards specified by the Kaduna State Environmental That discussion will be included in Part II “The Authority as well as anyone who construct[s], Role of Environmental Courts” in EPL 46(3–4). Ed. install[s], or operates any equipment, facility, vehicle, vessel or aircraft capable of causing or contributing to air pollution; … burn[s] or cause[s] to be burnt tyres, Notes cables, waste or refuse of any kind … without a written 1 See Ladan, M.T. 2015. Natural Resources and Environmental Law and Poli- cies for Sustainable Development in Nigeria, at 324–325. Zaria: Ahmadu Bello Uni- permit …; or d) sell[s] or offer[s] for sale any fuel or versity Press Ltd. inflammable article in an unauthorised area. 2 Ibid. 3 See Federal Ministry of Environment. 2005. “National Environmental Sanita- tion Policy”, at 1–2. Under §35, that level of penalty also applies to any 4 Ibid., at 2–3. person who, inter alia, dumps or disposes of refuse or 5 Ibid., at 3. domestic waste anywhere other than the “designated place 6 Read the combined effect of §§33(1) and 34(1) of the 1999 Constitution (as amended), reinforced by Articles 4, 16 and 24 of the African Charter on Human and for dumping such refuse”; puts anything in an open drain Peoples’ Rights, Cap. A9 LFN (2004). that could obstruct the “free and uninterrupted flow of 7 Supra, note 3, at 1–4. domestic effluent”; “fails, neglects or refuses to participate 8 See Ijaiya, H. 2013. “The Legal Framework for Solid Waste Disposal and Management in Kwara State, Nigeria”. Journal of Environmental Protection 4(11): in any sanitation exercise lawfully authorised by the 1240–1244. See also Chidi, O. and Okoye, A.C. 2014. “Solid Waste Management authority;… fails to keep to the restriction of movement on in Akwa Metropolis and Public Awareness: Sensitizing the Populace Through the sanitation days within the hours specified to the exception Use of Social Cartoons”. Journal of Environment and Human 1(2): 15–24; and Oloruntade, A.J., Adeoye, P.A. and Alao, F. 2013. “Municipal Solid Waste Collection of persons on essential service” or undertakes “the business and Management Strategies in Akure, South-Western Nigeria”. Caspian Journal of of waste collection or disposal without accreditation or the Environmental Sciences 11(1): 1–10. authority of a license”. 9 Supra, note 3, at 1–4. Where no specific penalty is stated, §§35, 47 and 48 10 Supra, note 1. 11 Supra, note 3, at 5. impose generic penalties that may vary depending on 12 See George, T. 2015. “Court revokes ban on movement during environmental the clause and offender, with fines ranging from N1,000 sanitation”. The Cable. 16 March 2013. Available online at https://www.thecable. to N100,000, and also possibly including a duty to pay ng/?s=court+revokes+ban. AUTHOR13 SeeCOPY http://sundiatapost.com/2015/04/17/sanitation-court-suspends-execution- “compensation for any damage resulting for such breach”. of-lifting-of-movement-restriction-order/. In addition to the government agencies, some private 14 Supra, note 12. companies are also involved in the management of waste. 15 Supra, note 13. The Lagos State Government, through its Solicitor-General, Lawal Pedro (SAN), had filed an application for a stay of execution, urging Justice These private-sector waste-disposal operators visit homes, Idris to summarily suspend the enforcement of his judgement. carry away refuse bags, load them into their waiting trucks 16 See Kent County Council v. Queensborough Rolling Mills Co. Ltd (1990) and cart them away to their final destination.100 Their J.E.L. 257. 17 National Environmental Standards and Regulations Enforcement Agency (Es- potential criminal liability is stated in Regulation 16 of tablishment) Act, No. 25, 2007, Vol. 94. Official Gazette, Federal Republic of Nige- the Kaduna State Solid Waste Management Regulations ria, at A635–655. No. 1, 2009: 18 Promulgated between 2009 and 2013. For an overview of these regulations, 16. any person, Authority, Corporate body or see Ladan, M.T. 2012. Recent Trends in Environmental Law and Access to Justice in Nigeria, at 1–31. Berlin: Lambert Academic Publishing. See also Ladan, M.T. 2014. unincorporated entity including Government Agencies “Recent Trends in Environmental Regulations in Nigeria”. Environmental Policy or their representatives who fail to comply with any of and Law 44(5): 461–482. the provisions of these Regulations shall be found guilty 19 Harmful Wastes (Special Criminal Provisions) Act, Cap. H.1, LFN 2004. 20 Kaduna State Environmental Protection Authority (Substitution) Law, 2009, and liable, on conviction, in the case of an individual to at para. 23. a fine of not more than One Hundred Thousand Naira 21 Supra, note 16. (N100,000.00) or not more than five years imprisonment 22 Nuclear Safety and Radiation Protection Act, §48, Cap. N.142, LFN 2004. 23 See also Article 2(1) of the Basel Convention which defines wastes as “sub- and in the case of a firm, corporation or authority to stances or objects which are disposed of or are intended to be disposed of or are a fine of not less than One Hundred Thousand Naira required to be disposed of by the provisions of national law”. (N100,000.00) and not more than N1 million. 24 Lagos Waste Management Authority Law, 2007. 25 National Environmental (Sanitation and Wastes Control) Regulations, 2009, Part 7, para. 16. Similar penalty levels and types apply under Regulation 26 Ibid., para. 37. 20 of the Kaduna State Control of Water Pollution Sources 27 Ibid., para. 27.

28 See Schedules I–VI of the National Environmental (Chemical, Pharmaceuti- 63 Ibid. cals, Soap and Detergent Manufacturing Industries) Regulations, 2009. 64 Ibid. 29 Ibid., Schedule III. 65 Ibid., Schedule VII, Guidelines for Waste Collection and Transportation Ve- 30 See Schedules I–VII of the National Environmental (Food, Beverages and To- hicle; and Guidelines for Extended Products Responsibility Programme, Schedules bacco Sector) Regulations, 2009. VIII–IX. 31 See Schedules 1–13 of the National Environmental (Mining and Processing of 66 Supra, note 25. Coal, Ores and Industrial Minerals) Regulations, 2009. 67 Ibid., Regulations 63–65. 32 Supra, note 5, Schedules I–XVII. 68 Ibid., Schedules VII–XVIII. 33 See Schedules I–IX of the National Environmental (Textile, Wearing Apparel, 69 Ibid., Regulation 106, para. 11. Leather and Footwear Industry) Regulations, 2009. 70 Ibid., para. 10. 34 See the National Environmental (Base Metals, Iron and Steel Manufacturing/ 71 Ibid., para. 25. Recycling Industries Sector) Regulations, 2011. 72 Ibid., para. 17. 35 See the National Environmental (Domestic and Industrial Plastic, Rubber and 73 Ibid., para. 31. Foam Sector) Regulations, 2011. 74 Ibid., para. 51. 36 See the National Environmental (Construction Sector) Regulations, 2011. 75 Ibid., para. 62. 37 See the National Environmental (Non-metallic Minerals Manufacturing Indus- 76 Ibid., para. 71. tries Sector) Regulations, 2011. 77 Ibid., para. 73. 38 See the National Environmental (Electrical and Electronic Equipment Sector) 78 Ibid., para. 76. Regulations, 2011. 79 Ibid., para. 50 39 See the National Environmental (Quarrying and Blasting Operations Sector) 80 Ibid., para. 70. Regulations, 2013. 81 Supra, note 1. 40 See the National Environmental (Pulp and Paper, Wood and Wood Products 82 See Ladan, 2012, supra, note 18, chapter 1. Sector) Regulations, 2013. 83 Between 1999 and 2000/01 during President Olusegun Obasanjo’s Administration. 41 See the National Environmental (Motor Vehicle and Miscellaneous Assembly 84 See www.elri-ng.org for a list of national and state environmental protection Sector) Regulations, 2013. institutions and waste management legislative/regulatory frameworks, at 1–5. 42 See the National Environmental (Telecommunications and Broadcasting Facil- Lagos: Environmental Law Research Institute. ities) Regulations, 2011. 85 Supra, note 1. 43 See e.g., the Lagos State Waste Management Authority Edict, 1991, No. 7 of 86 Supra, note 30. 1992, §26. 87 Ibid., para. 10. 44 Supra, note 27, on the definition of “leaf and yard waste”. 88 Of 1999 as amended, see Cap. 2. 45 See Usman, A.K. 2012. Environmental Protection Law and Practice, at 96. 89 Ladan, M.T. 2009. “Nigeria”. In: Kotzé, L.J. and Paterson, A.R. (Eds) The Role Ibadan: Ababa Press Ltd. of the Judiciary in Environmental Governance: Comparative Perspectives. Kluwer 46 Supra, note 27, at para. 9. Law International. 47 See Ilegbune, T.O. 1994. “Legal Regulation of Industrial Waste Management”. 90 See e.g., supra, note 20, at §§3 and 54. In: Ajomo, M.A. and Adewale, O. (Eds) Environmental Law and Sustainable Devel- 91 See supra, note 24, at §29. opment in Nigeria, at 87. Lagos: NIALS. 92 See supra, note 17, at §37; and Nigerian Constitution, supra, note 6, at §§251– 48 Supra, note 27, at para. 23. See also supra, note 40, Regulation 62. 2, 257 and 272. 49 Supra, note 30, Part IX, para. 18. 93 Maduako, D. 2011. “LASEPA, Industries Meet on Pollution”. The Tribune, 4 50 Ibid. April 2011. A common example is the clampdown on seven Pentecostal churches 51 Supra, note 24, at §5. by the Lagos State Environmental Protection Agency (LASEPA) over abatement 52 Supra, note 19. of noise pollution. Odidi, G. 2012. “Between LASEPA and LASAA”. The Nige- 53 See also the National Environmental Protection (Management of Solid and rian Voice, at http://www.thenigerianvoice.com/nvnews/85748/50/between-lase- Hazardous Wastes) Regulations, 1991; and the Basel Convention on the Control of pa-and-lasaa.html. Transboundary Movements of Hazardous Wastes and their Disposal, 1989. 94 Oyewole, N. 2012. “Lagos asks security agents to enforce sanitation order”. 54 Supra, note 25, Schedule XIII. Daily Trust, 25 January 2012. 55 Supra, note 27. 95 Lagos Waste Management Authority Law, 2007, §4. 56 Supra, note 22. 96 Ibid., §18. 57 Supra, note 27. 97 Ibid., §13. 58 Ibid. 98 Ibid., §18. 59 Ibid. 99 Ibid., §6. 60 Ibid. AUTHOR100 Taiwo, COPY A.A. “Waste Management towards Sustainable Development: A Case 61 Ibid. Study of Lagos”. International NGO Journal 4(4): 173–179. 62 Ibid.

Qatar Animal Welfare: Law and Philosophy by Francis N. Botchway* and Dabia Masmalani**

In 1971, Qatar joined the community of nations as North Field gas reserves,1 coupled with the rapid upsurge an independent modern State. As with many developing in the price of oil in the 1970s and the first decade of the countries emerging from colonialism, social and political new millennium, the country has transformed itself into a rights were not a priority. Economic development has modern developed country with an average gross domestic always been the major priority. With the discovery of oil and product (GDP) per capita in 2013 of US$ 105,091.2 It is gas in 1973, and the more recent discovery of the massive rated one of the top three richest countries in the world. Having largely achieved its economic goals, the country * Associate Dean of Research, College of Law, Qatar University. is now turning its attention not only to sustaining this ** Graduate of Law, Qatar University. prosperity, but also to achieving social and environmental

0378-777X/15/$27.50 © 2016 IOS Press 186 Environmental Policy and Law, 46/2 (2016) advancement. One area that has not featured prominently in service, he does not fail in his duty to the dog, for the the social vision of the State is the welfare of animals. Apart dog cannot judge, but his act is inhuman and damages from the economic development alluded to earlier, other in himself that humanity which it is his duty to show possible explanations account for the apparent absence towards mankind.10 of attention to animal welfare. For example, the country is located in the Arabian Desert with very little wildlife, This is quintessential anthropocentrism. That is, the much of which is not readily visible.3 As a result, there is thinking that animals are of interest only for the use and little general knowledge of the various species of animals enjoyment of human beings – that concern or care for within the country.4 animals serves only to prepare the animals and make Islam is the national religion and also the foundation them available for human use as and when needed. This of the regulation of life in the country.5 Although secular approach concludes that humans need to treat animals well law in the form of the civil code based on the French as an inchoate or indirect concern for the perpetrator’s Napoleonic code6 is prominent, the provisions of Islamic mistreatment and for other humans. For themselves, jurisprudence on animal welfare might be seen as an animals do not have any rights and need not be treated well. adequate structural framework for the welfare of all life, Although this theory was hailed at the time of its enunciation including animal species. as progressive and serving the cause of animal welfare, in This article seeks to address the relationship between many ways it laid the foundation for the mistreatment Islamic philosophy and western philosophy on animal of animals. It regarded animals as chattels, property and welfare and rights, and on this basis to consider the extent disposable things. There were other philosophers who to which Islamic jurisprudence on the issue of animal shared Kant’s thinking on animals. Descartes saw animals welfare is translated into secular law and its implementation as nothing but complex automata with no language and no in Qatar. These issues are important mainly because, consciousness.11 John Locke offered a more humane bent although the country is founded on Islam, its aspirations but, as with Kant, he saw cruelty to animals as precursor are largely western.7 There are bound to be tensions in to cruelty to humans. In other words, animals need to be the harmonisation of Eastern and Western ideas in the treated well so that humans can be protected from those uncompromising march towards sustainable development.8 who would transfer their cruelty to animals to cruelty to This article addresses one facet of the possible stress points. humans. These concerns for the welfare of animals from a Ultimately, its aim is to harmonise Western philosophy and human perspective and for the benefit of humans are seen ideas with Islamic philosophy and Arab culture to provide in contemporary discourse about animals as well. a foundation or basis for a comprehensive and effective The classic formulation of sustainable development legislative and policy framework on animal welfare. The (enunciated in 1987 by the World Commission on authors also hope that this work will provide an intellectual Environment and Development under Gro Bruntland) is framework for the launching of educational programmes “development that meets the needs of the present, without for the humane treatment of animals in Qatar and among compromising the ability of future generations to meet all States participating in the Gulf Cooperation Council. their own needs”.12 There is no reference to animals. The authors examined western theories, including Although the needs of humans in the present and future those of Immanuel Kant and René Descartes, finding that may include proper treatment of animals, that treatment is they address animal welfare as an accessory of human life simply for humans to meet their needs.13 This is reflected in and freedom.9 This approach underpinsAUTHOR the human rights international COPY agreements on the environment. For example, and sustainable development approaches to international the Convention on Biological Diversity (CBD) begins, environmental protection. The authors argue that both Aware that conservation and sustainable use of human rights and sustainable development frameworks are biological diversity is of critical importance for meeting too deeply steeped in anthropology and the satisfaction of the food, health and other needs of the growing world human needs and desires, with limited emphasis on animals population, for which purpose access to and sharing of and “inanimate” ecosystems in their own right. both genetic resources and technologies are essential, Noting that, ultimately, the conservation and sustainable Western Philosophy, International and use of biological diversity will strengthen friendly National Law on Animal Welfare relations among States and contribute to peace for Initially, the theories and philosophies that underpin humankind, the discussion about the humane treatment of animals Desiring to enhance and complement existing are relevant, beginning with western philosophies during international arrangements for the conservation the enlightenment period. The most prominent western of biological diversity and sustainable use of its philosophy relating to animals is the well known position components, and on animal rights of German philosopher, Immanuel Kant: Determined to conserve and sustainably use biological Animals are not self-conscious and are there merely as a diversity for the benefit of present and future means to an end. We can ask, “why do animals exist?” generations.14 But to ask, “why does man exist?” is a meaningless question. Our duties towards animals are merely Thus, the Convention is intended to promote biological indirect duties towards humanity …. If a man shoots diversity and preserve biological species not only so that his dog because the animal is no longer capable of humankind will have those resources for use now and in

0378-777X/15/$27.50 © 2016 IOS Press Environmental Policy and Law, 46/2 (2016) 187 the future, but also so that relations among States will be independent of human needs and desires. As far back as cordial or peaceful. To the extent that animals are to be 580 BC, the Greek philosopher, Pythagoras, reasoned protected, their protection is for the benefit of humans. that souls of human and non-human animals incarnated The 1973 Convention on International Trade in in each other and therefore there was hardly any reason Endangered Species of Wild Fauna and Flora (CITES) why the species should be treated differently.20 This was (as amended) opens with a progressive statement that echoed by German philosopher, Friedrich Nietzsche, and “[recognizes] that wild fauna and flora in their many English thinker, John Stuart Mill, in the 19th century. In beautiful and varied forms are an irreplaceable part of the more recent times, philosophers like American Tom Regan natural systems of the earth”.15 However, as with the CBD, and Australian Peter Singer have argued vigorously that CITES seeks the protection of wild animals “for this and animals have a right to life and free from human use, pain the generations to come”.16 It also expresses consciousness or pleasure in their own right and not as property of or at “of the ever-growing value of wild fauna and flora from the sufferance or behest of human animals.21 However, the aesthetic, scientific, cultural, recreational and economic views on the rights and protection of animals in their own points of view”, and “that peoples and States are and should right and on the same level as humans are in the minority be the best protectors of their own wild fauna and flora”,17 and are often considered extreme and unrealistic. The but recognises that international cooperation is necessary dominant position appears to be that which either considers to avoid over-exploitation of these species through trade.18 animals, particularly the domestic and those in captivity The value of the species is for humans and although humans at zoos, parks and similar placements, as property, or the are responsible for the threats to the existence of the species, philosophy that seeks the protection of animals as necessary they are to protect the species so as to benefit from them for balanced human existence and happiness. economically, scientifically, culturally and recreationally. It is that view that informs contemporary Western The mention of the aesthetics of species is obscure in this environmental discourse and permeates the international connection; since we are yet to establish what animals discourse, particularly international conventions and find aesthetically important, it can be concluded that the declarations on the environment. It remains to be seen aesthetic benefit is also anthropocentric. whether the Islamic perspective reinforces this view or The 1968 African Convention on the Conservation of offers divergent ideas on the welfare of animals. Nature and Natural Resources is, perhaps, the international legal instrument with the most openly anthropocentric Islamic Jurisprudence and Animal Welfare language. Its preamble describes the heads of State and Law in Qatar government of independent African States as: At one level, it can be argued that the dominant Western FULLY CONSCIOUS that soil, water, flora and faunal philosophies about animal welfare and their manifestation resources constitute a capital of vital importance to in international treaties and other legal instruments appear mankind; to be coterminous with the principles of Islam as espoused CONFIRMING… that we know that it is our duty in the Koran and the Hadith. Both the Koran and Sunnah “to harness the natural and human resources of our refer to the humane treatment of animals. In the Koran, continent for the total advancement of our peoples in God said in the Surah22 An-Nahl: spheres of human endeavour”; (4) and the grazing livestock He has created for you; FULLY CONSCIOUS of the ever-growing importance in them is warmth and [numerous] benefits, and from of natural resources from an economic,AUTHOR nutritional, them COPY you eat. (5) And for you in them is [the enjoyment scientific, educational, cultural and aesthetic point of of] beauty when you bring them in [for the evening] view; … and when you send them out [to pasture]. (6) And they ACCEPTING that the utilization of the natural carry your loads to a land you could not have reached resources must aim at satisfying the needs of man …; except with difficulty to yourselves. Indeed, your Lord DESIROUS of undertaking individual and joint action is Kind and Merciful. (7) And [He created] the horses, for the conservation, utilization and development of mules and donkeys for you to ride and [as] adornment.23 these assets by establishing and maintaining their rational utilization for the present and future welfare In Surah 5, verse 4, the Koran says that “lawful for you of mankind.19 are all good things, including what trained dogs and falcons catch for you. You train them according to God’s teachings. Moving beyond the preamble, this Convention You may eat what they catch for you, and mention God’s mandated clearly that its fundamental principle is that name thereupon. God is most efficient in reckoning”. This “the contracting States shall undertake to adopt the is more about the domestication of animals and the benefits measures necessary to ensure conservation, utilization and that such domesticated animals bring. It is also consistent development of soil, water, flora and faunal resources in with the western ideas which place animals at the service accordance with scientific principles and with due regard and comfort of human beings. The most important point to the best interests of the people”. here is the mention of the efficiency paradigm in the use Some western philosophers and activists have of God’s provisions of food, specifically animal protein. In taken animal welfare discourse further away from its general, Islam discourages wastefulness and extravagance. anthropocentric pedigree and regarded the welfare of A radical departure from the anthropocentric paradigm animals as important for the sake of the animals themselves, of animal discourse in Islam can be found in Surah 6, verse

38, which states that “there is not an animal on earth, nor harms an animal which is used in transportation or cattle a bird that flies on its wings, but they are communities owned by somebody else on purpose shall be liable to like you…”.24 This is by far the most advanced statement a fine of not more than 5,000 Qatar Riyals (QAR) or regarding animals in the Koran. It makes it clear that imprisonment.27 This is an interesting provision in that animals form a community not dissimilar to human it is limited to cattle and animals used for transport. It is communities. It can be concluded therefore that the also located in the property ownership paradigm. What if animal communities deserve the same level of respect and the animal is not owned by anybody? What if the animal treatment as the human communities. What appears missing is not used for transport? This provision makes the animal in this emphatic statement about animals is the absence carry two burdens; it carries the burden of satisfying its of a link between different animal communities or, more owner and carries the burden of being harmed. Besides, specifically, between the human community and the non- the fine is paltry indeed. Given the wealth of Qatar and human animal communities. However, the Surah also asks, the non-deterrent nature of fines for various breaches of “Seest thou not that it is Allah Whose praises are celebrated the law such as traffic regulations, a fine of 5,000 QAR by all beings in the heavens and on earth, and by the birds or less is grossly inadequate28 and would be ineffective in with extended wings? Each one knows its prayer and psalm, preventing the wanton abuse of animals.29 It is interesting And Allah is aware of what they do”.25 This suggests that to note, however, that section 2 of Article 393 expands animals have higher cognitive and sentient abilities than protection for amphibious animals. It prohibits the mass are traditionally accorded them. Finally, in Surah 11, verse killing of water animals by the use of explosives, poison, 6, the Koran offers an indication of stewardship towards chemicals, electrical shock and other “genocidal” methods. animals when it states that “there is no moving creature on This is one of the few pieces of legislation in the world earth, but Allah provides for its sustenance…”. that directly protects water animals that is not located in a fisheries legal regime. Article 394 also extends protection to insects, specifically bees.30 This is also quite novel. It would have been even better if it was insects and birds in general. The language of the section which includes the phrase “bees or any domestic animal” makes the law broad and limited at the same time. The phrase “or any domestic animal” broadens the reach of the section, but then that reach is circumscribed by the “bee” qualifier. It is also limited to “domestic” animals which would mean that even the bees being protected must be owned by somebody. Bees and other animals in the wild or those that have strayed have no protection from abuse and cruelty. The punishment tariff of 2,000 QAR maximum or three months imprisonment is also too lenient. The Arabian oryx, national animal of Qatar Courtesy: Wikipedia The final provision in the penal code about animals is Article 395 which provides that whoever beats or abuses The Hadith has more elaborate provisionsAUTHOR relating to a domestic COPY or captured wild animal, makes an animal the place of animals in the life of the Prophet Mohamed suffer while being transported or burdens an aged, sick (Peace be Upon Him) and his companions. In the Mishkat or injured animal shall be liable to a fine not exceeding al-Masabih volume 2, it is said that “Doing good to 1,000 QAR or two months imprisonment. It also gives the beasts is like the doing of good to human beings, a deed court the power to seize and confiscate the animal victims of charity, whilst cruelty to animals is forbidden, just like of abuse, or if the animal is sick with a poor prognosis cruelty to human beings”. The Prophet is reported to have for recovery, it could be put to sleep. This is much more not only treated animals humanely, but also reprimanded generically protective; however, it suffers from some people who treated animals badly. It would thus appear of the ambiguities of the earlier provisions. There is no that Islamic jurisprudence provides a stronger foundation definition of what burden is enough for the animal to for the humane treatment of animals than classic western bear and there is no protection for animals in the wild thought. The next stage is to see the extent to which the that have not been captured. Besides, the punishment is laws of Qatar relating to animals are consistent with or disproportionate, since 1,000 QAR is a trivial sum to the reflect these Islamic foundations. average Qatar resident. The sums imply an unfortunately low opinion of the value of animals. Animal Welfare Law in Qatar Overall, the provisions in the Criminal Code are In Qatar, there is no comprehensive legislation on welcome, but do not go far enough. Although the location animal welfare. The most prominent law on animals of the animal protection provisions in the criminal code is found in the General Penal Code, Law Number 11, gives an indication of the seriousness with which animal established in 2004.26 It devotes three articles to the punitive protection is taken by the authorities in Qatar, the provisions consequences of animal abuse or cruelty. Article 393 are buried deep inside the code and it would take a keen states that anybody who kills without reason or seriously researcher to find them. Autonomous and complete one-

0378-777X/15/$27.50 © 2016 IOS Press Environmental Policy and Law, 46/2 (2016) 189 stop legislation would be facilitative of popular education fines no greater than 5,000 QAR and imprisonment of up and research. Secondly, the provisions place overwhelming to three months. emphasis on the property rights of owners of animals. This is seen in the use of “domesticated” in describing Animals in Captivity the animals to be protected. Articles 393 and 394 do not There is one national zoo in Qatar. Its exhibits include make clear where the owner is the source of the abuse big cats like lions, cheetahs, tigers and leopards. Other or harm to the animals. The property paradigm is deeply animals include zebras, giraffes and birds such as peacocks, anthropocentric and does not seek protection of animals in pheasants, quail and falcons. There are also amphibians their own right, un-appended to that of humans. Thirdly, and small reptiles. At the moment, the zoo is closed to the the punishment prescribed for the offence of harming public and the animals kept in a secure temporary location. animals is too lenient and would do little to achieve the There is a new zoo under construction. It is expected to goals of the law. be ready in 2017. This creates a very difficult situation for In addition to these textual shortcomings, the Code the animals as their care is not easily monitored by the omits to cover animals in the wild. It is true Qatar does not authorities and by interested visitors. It might be preferable have the broad assortment of wild animals one might find to return the animals to their natural habitats while the new in many parts of Africa, South America or Asia, but it does zoo is constructed. have animals such as deer, lizards, oryx, falcons and a huge There is nothing in Islamic jurisprudence against variety of birds, all of which deserve protection.31 Secondly, domesticating or keeping wild animals in captivity, the legislation fails to provide for an institutional oversight although it is mandated that they must be treated humanely. of animal protection and does not provide financial support From our observation, it is difficult to conclude that the of any kind for the management of animal species in Qatar. welfare of the animals at the zoo is in compliance with Article 395 allows the option of taking abused animals the Islamic strictures, seeing that the surroundings of the from their abuser but does not state where they are to be animals are not the same as they are used to in the wild. taken, who is to take care of them and how they are to be In the law, given that there is no provision addressing maintained or, where necessary, released into the wild. This institutional neglect or the inhumane treatment of animals, raises questions regarding the extent to which the law on it cannot be said that the zoo is committing any crime. animal welfare conforms to Islamic principles or strictures Besides, it is difficult to document exactly what crime, if on the treatment of animals. any, is being committed.

Animal Welfare in Practice Animal Welfare Departments and Veterinary Clinics It is now appropriate to report on and relate the practice Although the facilities in animal welfare departments of animal welfare in Qatar to Islamic principles and to the and veterinary clinics are not best suited for the comfortable law. In other words, is the practice consistent with the law care of the animals, it is difficult to say that any breaches and Islamic philosophy? of the law are taking place. The authors also cannot say for As noted, the position regarding treatment of animals certain that the practices at those institutions are consistent in Islam is not devoid of ambiguity. At one level, animals with Islamic principles on animal welfare. are considered to belong to “communities”, yet at another level they are permitted to be taken for food. Again, they Birds and Other Animals for Sale in Markets are not to be harmed, but at the same timeAUTHOR can be used as In theCOPY Souq Waqif in Doha, although they may not be beasts of burden to transport humans and goods. It would violating the letter of the law, it is quite clear that sellers appear, however, that the position of Islam regarding of birds and other animals violate the spirit of Islamic animals is that all animals must be treated well and principles and the spirit of the law prohibiting cruelty protected. As in Western philosophy, they are to be used to animals. The animals are coloured in ways that may in a fair manner to service the needs of humans. Is this please humans but there is no way of determining their position manifested in the law on animal welfare in Qatar? consequences to the animals. In addition, they are kept First, the legislation previously discussed prohibits the outdoors where temperatures may be too high for their maltreatment of animals, broadly consistent with Islamic wellbeing. Even when they are taken into the shade or principles. However, the humane treatment of animals inside stores, air-conditioning may often not be provided. as stated in the law does not cover all animals. This is inconsistent with the Koranic requirement. Secondly, Stray Animals and Very Wild Animals Kept as the Koran requires all humans to take responsibility or Domestic Pets be involved in the protection of animals; however, the Finally, current practices regarding the treatment of law in Qatar does not place any obligation on anybody stray animals and the keeping of very wild animals as to protect or care for animals. A State-funded institution domestic pets are relevant.32 There is a policy of neutering would go a long way in fulfilling this Islamic principle. stray cats and dogs to reduce their prevalence. In extreme Thirdly, the punishment for mistreatment of animals cases, some weak animals are culled. The process of in Islam is reserved for the hereafter and there is no determining which animals live or die and/or which are immediate prescribed punishment in the temporal life. In allowed to reproduce is not very transparent. There is the legislation under discussion, however, the punishment no scientific or quasi-judicial process of making these is immediate and it is clearly stated, although limited to important determinations. The keeping of wild animals as

8 Ibid. domestic pets is prohibited by the law of Qatar; however, 9 See Regan, T. and Singer, P. 1976. Animal Rights and Human Obligations, at some people violate this law.33 Thankfully, the law has 60–66. Englewood Cliffs NJ: Prentice-Hall. 10 Infield, L. (Transl.) 1963. Immanuel Kant: Lectures on Ethics, at 239–240. sometimes been applied in these cases. For example, in 11 See Rosenfeld, L. 1940. From Beast-machine to Man-machine: The Theme 2013, a man was accused, tried, convicted and sentenced of Animal Soul in French Letters from Descartes to La Mettrie. New York: Oxford to three years’ imprisonment for stealing leopard cubs.34 University Press. It would appear, however, that the court placed more 12 World Commission on Environment and Development (WCED). 1987. Our Common Future. Available at http://www.un-documents.net/our-common-future.pdf. emphasis on the stealing than on violation of the laws 13 Ibid., Chapter 5. against privately keeping wild animals.35 14 See the Preamble to the CBD, at https://www.cbd.int/doc/legal/cbd-en.pdf. 15 See the Preamble to the CITES Convention, at https://www.cites.org/eng/disc/ text.php#texttop. Conclusion 16 Ibid. It would appear that the philosophy of protecting animals 17 Ibid. for the sake of humans has undergone a radical transformation 18 Ibid. 19 See the Preamble to the African Convention on the Conservation of Nature and in the last few decades. The views of Kant, Descartes and Natural Resources, at http://www.au.int/en/sites/default/files/treaties/7763-file-afri- others no longer represent mainstream ecological thought, can_convention_conservation_nature_and_natural_resources.pdf. and they certainly do not form the foundation of recent 20 See Violin, M.A. 1990. “Pythagoras: The First Animal Rights Philosopher”. legal instruments on the environment, which adopt a more Between the Species 6: 122–127. Available at http://digitalcommons.calpoly.edu/cgi/ 36 viewcontent.cgi?article=1757&context=bts. Also see “Animal Rights: A History. nuanced approach to the protection of animals. The Pythagoras”, at http://www.think-differently-about-sheep.com/A_Rights_a%20His- contemporary consciousness of the welfare of animals within tory_Pythagoras.htm. religions such as Islam is also a reflection of the evolving 21 See Singer, P. 1980. “Animals and the Value of Life”. In: Regan, T. (Ed.) Matters of Life and Death. New York: Random House. perspectives on animal welfare. Islamic literature displays both 22 There are 114 surahs (chapters) in the Koran. Surah An-Nahl (“The Bees”) is anthropocentric and ecological aspects (respect for animals chapter 16. and their welfare in their own right). 23 Surah 16, verses 5–8. 24 See Tlili, S. 2012. Animals in the Qur’an. New York: Cambridge University The law in Qatar regarding animal welfare does not Press. go far enough in reflecting Islamic edicts and doctrine. 25 Surah 24:14 and 17:44. The coverage of animal mistreatment under the penal 26 General Penal Code, Law Number 11 of 2004, available at http://www.al- meezan.qa/LawArticles.aspx?LawTreeSectionID=295&lawId=26&language=en. code is not comprehensive and does not offer educational 27 Ibid. benefits. Although including some novel approaches to 28 [As of March 2016 1 QAR is equal to approximately US$ 0.27. Ed.] the protection of animal species such as amphibians and 29 For examples of the keeping of wild animals as pets in violation of the law, see http://bigcatrescue.org/qatar-growing-number-of-cheetahs-kept-as-pets/. bees, the law’s punishment for violators is minimal in 30 Ibid. context. In practice, however, the protection of animals 31 See Ministry of Environment, supra, note 3; Casey, P. and Vine, P. 1992. The and the enforcement of the law are improving. This is seen Heritage of Qatar. London: Immel Publishing; and “The ‘Wild’ Night Life of Qatar”. in the establishment of the animal protection unit at the Helen Ziegler and Associates, available at http://www.hziegler.com/articles/wildlife- of-qatar-night.html. Ministry of Municipality Affairs, the encouragement of 32 Supra, note 29. animal shelters, and the establishment of an animal abuse 33 Ibid.; and see also http://edition.cnn.com/2012/04/04/world/meast/endan- prosecution unit at the General Prosecutor’s office.37 With gered-animal-pets/. 34 See “Man gets three years for stealing leopard cubs”. The Peninsula, 1 May the impetus that Islam offers, it should not be difficult to 2013, at http://thepeninsulaqatar.com/news/qatar/235122/man-gets-three-years-for- educate the people and for them to internalise the ethos of stealing-leopard-cubs. humane treatment of animals in Qatar. 35 Ibid. AUTHOR36 SeeCOPY Redgwell, C. 1997. “Life, the Universe and Everything: A Critique of Anthropocentric Rights”. In: Anderson, M. and Boyle, A. (Eds) Human Rights Notes Approaches to Environmental Protection. Oxford: Clarendon Press. 1 Jensen, J.T. 2006. “The Future of Gas Transportation in the Middle East 37 See Scott, V. 2014. “New Qatar office to tackle violators of environmental, Region: LNG, GTL and Pipelines”, at 254. In: Abraham, M. (Ed.) The Gulf Oil and animal welfare laws”. Doha News, at http://dohanews.co/new-prosecution-of- Gas Sector: Potential and Constraints. Abu Dhabi: The Emirates Center for Strategic fice-tackle-environment-municipal-law-breakers. Studies and Research. 2 See Tasch, B. 13 July 2015. “The 23 richest countries in the world”. Business Insider. Online at http://www.businessinsider.com/the-23-richest-countries-in-the- world-2015-7. 3 For a collection of wildlife in or associated with Qatar, see Ministry of Environ- ment. 2014. Irkaya: Celebrating Biodiversity in Qatar. Doha: Ministry of Environ- ment, at http://www.moe.gov.qa/Arabic/Documents/Irkaya_1-248.pdf; and Talhouk, A.M.S. et al. 1981. The Wildlife of Arabia. London: Stacey International. 4 Ibid. Efforts are now being made to document the wildlife resources of the country. 5 See Article 1 of the Permanent Constitution of Qatar, 2004, available at http:// www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---ilo_aids/documents/ legaldocument/wcms_125870.pdf. 6 See Elbarrawy, H. 2013. Introduction to Qatari Law. Cairo: Dar al-Nahda al-Arabia; and Negedah, A. 2015. “The Role of Sharia within the Current Qatari Law: A Comparative Study”. Qatar Legal and Judicial Studies Journal. For a general overview of the evolution of secular law in the Middle East, see Liebesny, H.J. 1975. The Law of the Near and Middle East. Albany NY: State University of New York Press. 7 See Ibrahim, I. and Harrigan, F. 2012. “Qatar’s Economy: Past, Present and Future”. QSCIENCE Connect 9; and General Secretariat for Development Planning. 2008. “Qatar National Vision 2030”. Doha: GSDP. Available at http:// www.gsdp.gov.qa/www1_docs/QNV2030_English_v2.pdf.

REFERENCES TO OTHER TOPICS

UN IRENA: Renewable Energy’s Potential Impact in –– Sustainable Development Follow-up Report the Gulf The Second Committee of the UN General Assembly The International Renewable Energy Agency (IRENA) has has published its report entitled “Sustainable development: released its Renewable Energy Market Analysis: The GCC Region, implementation of Agenda 21, the Programme for the Further noting that, if they increase their use of renewable energy to match current sustainable energy plans, the States of the Gulf Cooperation Implementation of Agenda 21 and the outcomes of the World Council (GCC) would avoid the need to withdraw 11 trillion litres Summit on Sustainable Development and of the United of water from other uses, save 400 million barrels of oil, and Nations Conference on Sustainable Development” (UN Doc. create more than 200,000 jobs. Full report: http://www.irena.org/ A/70/472/Add.1): http://www.un.org/en/ga/search/view_doc. DocumentDownloads/Publications/IRENA_Market_GCC_2016.pdf. asp?symbol=A/70/472/Add.1. –– Global Marine Assessment EU The United Nations Division for Ocean Affairs and the Law –– Assessment of the Paris Climate Agreement of the Sea has published The First Global Integrated Marine The EU Commission has released a Communication, entitled Assessment: World Ocean Assessment I under its Regular “The Road from Paris: assessing the implications of the Paris Process for Global Reporting and Assessment of the State of Agreement and accompanying the proposal for a Council decision the Marine Environment, including Socio-economic Aspects. The on the signing… of the Paris agreement …” (COM(2016) 110 final, report is composed of eight sections including major ecosystem 2 March 2016). The Communication proposes that the EU sign services, marine biological diversity, and marine ecosystems and and ratify the Agreement as soon as possible. Communication: habitat. Full report: http://www.un.org/depts/los/global_reporting/ https://ec.europa.eu/transparency/regdoc/rep/1/2016/EN/1- WOA_RegProcess.htm. 2016-110-EN-F1-1.PDF; Press release: http://europa.eu/rapid/ press-release_IP-16-502_en.htm. –– Agenda for Humanity United Nations Secretary-General Ban Ki-moon has released –– Appeal for Action on SDGs the report “One Humanity: Shared Responsibility”, containing Eighty non-governmental organisations have published an his five-part “Agenda for Humanity”, to be presented at the first open letter addressed to EU Commission Vice-President Frans World Humanitarian Summit, which will be held from 23–24 May Timmermans regarding implementation of the 2030 Agenda. 2016 in Istanbul. The Agenda’s proposed core responsibilities Referring to the UN Sustainable Development Goals (SDGs), of Member States actions are as follows: “[develop] Global it calls on EU Member States to “develop an overarching leadership to prevent and end conflict; Uphold the norms that Sustainable Development Strategy with a timeline of 2030 and a safeguard humanity; Leave no one behind; Change people's lives concrete implementation plan which coordinates the achievement – [converting] from delivering aid to ending need; and Invest in of the 17 goals, 169 targets and their indicators”. Full text: humanity”. Full report: http://sgreport.whsummit.org/. http://www.eeb.org/index.cfm/library/letter-to-vice-president- timmermans-2030-agenda-for-sustainable-development/. ICAO: Limits on Plane Emissions –– Monsanto Patent Revoked For the first time ever, negotiators under the auspices of the According to the International Federation of Organic International Civil Aviation Organisation (ICAO) have been able Agriculture Movements (IFOAM), the European Parliament to agree on aircraft-emissions-reduction standards. Under the has revoked a patent for melons issued to the agrochemical agreement the standards would bind new planes that come into giant Monsanto. Monsanto claimed the patented melon as an use from 2020 onward, and require planes in service to comply invention, although it was a product of conventional breeding by 2023. The agreed standards (which have drawn criticism for using a variety found in India that is naturally resistant to plant viruses. Opposition to the patent was led by a Europe-based their leniency) must still be approved by ICAO’s governing council, coalition “No Patents on Seeds”. The EU concluded that a when it meets later this year. News story: http://www.euronews.AUTHOR COPY patent was not the appropriate tool for protecting new varieties com/business-newswires/3156187-airline-manufacturers- developed in this way. Press release: http://www.ifoam-eu.org/en/ escape-threat-of-big-costs-from-new-un-climate-standards/. In news/2016/01/20/press-release-european-patent-office-revokes- our next issue EPL will publish a detailed examination of ICAO’s monsanto-patent-melons. related processes for the development of a groundbreaking market-based mechanism to control CO emissions from aircraft. 2 East African Community: Watershed Disaster Risk Bill GEF: Sustainable Cities The East African Legislative Assembly has passed a bill on The Global Environment Facility (GEF) has launched its Global “Disaster Risk Reduction and Management, 2013”. It aims to lessen Platform for Sustainable Cities, which is expected to raise US$ 1.5 the impact of natural and man-made hazards in the region, while also billion for urban sustainability programmes in 11 developing furthering the coordination of disaster preparedness, management, countries over the next five years. Website: https://www.thegef. protection and mitigation measures. The implementation of the bill org/gef/sustainable-cities. is part of the Sendai Framework for Disaster Risk Reduction (DRR) 2015–2030. According to Article 63 of the Treaty that established OECD Food and Fisheries Assessments the East African Community (EAC), the bill must now receive the Two OECD assessments relating to global food issues assent of the head of State of each EAC Member. Press release: were recently released: Alternative Futures for Global Food and http://www.eac.int/news-and-media/press-releases/20160310/ Agriculture, covering the challenge of developing a global food assembly-enacts-legislation-disaster-risk-reduction. system to feed an ever-growing population; and OECD Review of Fisheries: Policies and Summary Statistics, containing 2015 Australia: Research Reveals that Artificial Light statistics on fisheries in member countries and select non-member Poses An Additional Threat to Coral economies. Alternative Futures report: http://www.oecd.org/ New research by Israeli and Australian scientists reveals publications/alternative-futures-for-global-food-and-agriculture- that artificial light negatively impacts coral sustainability. When 9789264247826-en.htm; Fisheries Statistics: http://www.oecd. exposed to artificial light, the corals are no longer able to detect org/publications/oecd-review-of-fisheries-policies-and-summary- the moonlight, which is vital to spawning. Full text: http:// statistics-22254323.htm. elifesciences.org/content/4/e09991.

0378-777X/15/$27.50 © 2016 IOS Press Austria: Motion on Sustainable Production and UK: Pigeon Air Patrol Consumption Plume Labs, a London-based initiative, is raising awareness The Austrian Green Party has filed a motion for a resolution of that city’s air pollution by employing the help of racing pigeons to increase engagement by the environment minister and to measure air quality. Fitted with ultra-light “backpacks” representatives of the federal government in measures to containing GPS sensors and devices to measure ozone, volatile encourage extended lifecycles of products and to discourage compounds and nitrogen dioxide levels, the public can follow the planned obsolescence. Motion text: https://www.parlament. pigeons through a free “Plume Air Report” app and get real-time gv.at/PAKT/VHG/XXV/A/A_01551/fname_509054.pdf [in German]. information on air quality online at: http://pigeonairpatrol.com/. USA China: Study of Contribution to CO2 Emissions A group of 24 researchers have submitted a detailed letter to –– Illegal, Unreported and Unregulated Fishing Nature, which has been published under the title “The contribution In February, Congress adopted, and President Obama of China’s emissions to global climate forcing”, which describes signed into law, a new US law called the Illegal, Unreported their work using “a global coupled biogeochemistry-climate model and Unregulated (IUU) Fishing Enforcement Act. The Act’s and a chemistry and transport model”. The study concluded that operative provisions address all obligations of States under although almost a quarter of global carbon dioxide emissions FAO’s Agreement on Port State Measures to Prevent, Deter and are produced in China, “China’s present-day global radiative Eliminate IUU Fishing, which will enable the President to sign that forcing is about ten per cent of the current global total, made up Agreement and the Congress to ratify it, making the US the 23rd of both warming and cooling contributions; if in the future China of 25 Parties necessary for the instrument to enter into force. Act: reduces the cooling forcing, global warming could accelerate”. https://www.govtrack.us/congress/bills/114/hr774/text/enr; Port Letter: http://www.nature.com/nature/journal/v531/n7594/full/ State Measures Agreement website: http://www.fao.org/fishery/ nature17165.html. psm/agreement/en. –– Law of the Sea France: Extension of the Age Limit on Nuclear Once again, more than 30 years after its adoption in New Power Plants? York, the UN Convention on the Law of the Sea has been French Minister for Ecology, Sustainable Development and raised before the US House of Representatives Committee on Energy, Ségolène Royal, supports increasing the age limit of Foreign Affairs, pursuant to a resolution calling for its ratification. French nuclear power plants from 40 years to 50 years, which H.Res.631: https://www.congress.gov/bill/114th-congress/ she does not view as inconsistent with her long-expressed house-resolution/631. commitment to reducing France’s reliance on atomic energy from 70 percent to 50 percent. News report: http://www.reuters.com/ –– Safe Drinking Water and Human Rights article/us-france-nuclear-idUSKCN0W10LD. In the wake of the discovery of serious health risks from lead-contaminated drinking water in the town of Flint, Michigan, a group of six UN Special Rapporteurs and the Working Group of Netherlands: OECD Environmental Performance experts on people of African descent has issued a joint appeal to Review the US Government to take action. Declaring the situation a major The OECD’s 2015 review of the environmental performance of human rights crisis, the group also urged the US to ratify the UN the Netherlands praises the country for its efforts to limit the Convention on the Rights of the Child, the International Covenant economy’s carbon intensity and air pollution, but points out on Economic, Social and Cultural Rights, and other agreements. that the country will most likely not meet the renewable energy Press release: http://www.ohchr.org/EN/NewsEvents/Pages/ and energy efficiency goals set in the 2013 Energy Agreement DisplayNews.aspx?NewsID=17139&LangID=E. for Sustainable Growth. Full review: http://www.oecd.org/ netherlands/oecd-environmental-performance-reviews- Trees Can Increase Warming thenetherlands-2015-9789264240056-en.htm. Although trees assist in eliminating climate-warming carbon dioxide from the atmosphere, new research shows that changes Norway: New Plan for Reducing Oslo Traffic in European forests have also warmed the planet. A transition from The Guardian reports that the new governmental coalition in broader-leaved trees, such as oak, to economically more valuable Norway (the Labour Party, the Socialist Left and the Green Party) coniferous species, such as pine, over the last 260 years has led have presented a platform that aims by 2019 to reduce car traffic to a warmer atmosphere. Monahan, P. 2016. “Europe’s trees have in Oslo by 20 percent and only allow zero-emission vehicles into been warming the planet”. Science: http://www.sciencemag.org/ the city centre; and by 2030 to reduce car traffic by 30 percent news/2016/02/europe-s-trees-have-been-warming-planet. and carbon emissions by half: http://www.theguardian.com/ environment/2015/oct/19/oslo-moves-to-ban-cars-from-city- IUCN: Green List of Protected Areas centre-within-four-years. The International Union for Conservation of Nature (IUCN) reports that its development of the “Green List of Protected and Conserved Areas” is progressing. The List’s goal is “to provide a new global standard to measure progress of conservation outcomes and the impacts of equitable governance and effective management through associated social, economic, cultural and spiritual values”. The standard will specify criteria to measure the extent to which a protected area meets this objective, adhering to the best practices adopted by the International Social and Environmental Accreditation and Labelling Alliance. Website: https://www.iucn.org/about/work/programmes/gpap_home/ gpap_quality/gpap_greenlist/. [NAE, ATL]

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Thomas and Raimon Guitart) (Francis N. Botchway and Dabia Masmalani) OTHER INTERNATIONAL DEVELOPMENTS REFERENCES TO OTHER TOPICS 191 Water Scarcity Comes of Age 132 (Amado S. Tolentino, Jr) Environmental Disputes in Investor-State Arbitration 133 – A Need for Change – (Aditya Vora Viral) Musk Deer Trade and Worldwide Depletion 137 (Mudasir Ali ) Social Rights in International Law 149 – Premises for a (New) Fundamental Approach – (Rodrigo Garcia Schwarz)