Volume 6/3
Evanson Chege Kamau, Bevis Fedder and Gerd Winter
The Nagoya Protocol on Access to Genetic Resources and Benefit Sharing: What is New and What are the Implications for Provider and User Countries and the Scientific Community?
In culmination of the efforts by the Conference of the Parties (COP) of the Convention on Biological Diversity (1992) to adopt an international regime to regulate access and benefit sharing, the Nagoya Protocol was adopted at the COP 10 in Aichi-Nagoya, Japan, on 29 October 2010. The preceding negotiations aimed to produce a legal tool or regime that would oblige the parties to the Convention as well as resolve the long-standing stalemate between providers and users of genetic resources and traditional knowledge. The entire process leading to the adoption of the Protocol was marked with contention. Many issues remained unresolved until the last minute, when in night-long sessions a bargain was struck between provider and user states. The resulting text therefore abandons many legitimate issues raised by provider states that still existed in the final text of the ICG (Informal Consultative Group) as handed over to the Plenary for adoption. What is new in the Protocol? Who got what? In its current status, is the Protocol able to resolve the stalemate? Should parties adopt it and what are the stakes? This article gives an evaluation of the outcome of the negotiations based on these and other questions and assesses which implications this might have on provider and user states and the scientific community.
Gary Cox
The Trafigura Case and the System of Prior Informed Consent Under the Basel Convention – A Broken System?
The much publicised Trafigura case of the illegal dumping of hazardous petrochemical waste in and around Abidjan in Côte d’Ivoire has reignited the debate about the international trade in hazardous wastes as well as issues of international corporate social responsibility. The incident, which took place in August 2006, highlights major flaws in the existing international regulatory system, particularly around the prior informed consent (PIC) procedure. PIC forms the keystone of the 1989 Basel Convention on the Transboundary Movement of Hazardous Wastes. This article focuses on the effectiveness of the PIC procedures under the Basel Convention in the light of the response to the Trafigura incident. The incident exemplifies the failures of the PIC system under the Basel Convention. It reveals confusion on the part of regulatory authorities, failure to take prompt and appropriate action by the authorities involved, a lack of proactive supervisory intervention on the part of the Basel Secretariat, and a more far-reaching lack of developing country support for capacity building and technical assistance. There is a need for a more thorough-going approach to the assessment of environmentally sound management in developing countries. More fundamentally, meaningful consent encompasses the human rights dimension of hazardous wastes on local communities. Efforts aimed at increasing co-operation between the Basel, Rotterdam, Stockholm and MARPOL Conventions should be fully supported but they should be rapidly complemented by addressing deficiencies at ‘the sharp end’ around compliance and the effectiveness of the current system of PIC. A more integrated multilateral environmental regime dealing with all aspects of hazardous chemicals and wastes is warranted based on a wider focus on common concern for the global environment.
Christopher Smith
The Bali Firewall and Member States’ Future Obligations within the Climate Change Regime
At the 13th Conference of the Parties to the United Nations Framework Convention on Climate Change, held in Bali in 2007, the COP decided to launch a process to reach an agreed outcome at its 15th session held in Copenhagen in 2009. This decision, known as the Bali Action Plan, contains two subparagraphs that set out broadly the parameters within which future possible legal obligations pertaining to developed and developing nations regarding the mitigation of climate change are to be addressed as part of this process as per the decision. The purpose of addressing these obligations is to enable the implementation of the Convention, so the subparagraphs should have a basis in the Convention. One subparagraph deals with future possible legal obligations pertaining to developed country Parties and the other deals with those pertaining to developing country Parties. The content of each subparagraph differs and therefore a fundamental difference in the future possible legal obligations pertaining to developed and developing country Parties is pre-defined within the Bali Action Plan. This difference, as it is perceived by most developing country Parties, has become known colloquially as the Bali firewall. This article will set out the content of the pre-defined sets of parameters and investigate the basis for this content, and difference in content in relation to the other, in the provisions and principles set out in the Convention. It will then conclude on the validity of the Bali firewall in terms of the content of the Convention. Additionally it will analyse whether the ‘outcome’ of the 15th Conference of the Parties falls in line with the future legal obligations of member states within the climate regime as perceived by most developing country Parties in terms of the Bali firewall. Lastly it will analyse member states’ future legal obligations within the climate change regime in the context of the overall objective of the Convention and the changing situation of the Parties over time.
Simon West
"Command Without Control": Are Market Mechanisms Capable of Delivering Ecological Integrity to REDD?
Market mechanisms have been increasingly touted over the last 40 years as the most ecologically effective and economically efficient way to solve environmental problems. The problem of deforestation has been increasingly recognised in the climate change regime over the last 15 years as a major source of greenhouse gas emissions. Correspondingly many politicians, academics and commentators believe that linking forestry conservation projects to international carbon markets is potentially a cost-efficient way of reducing emissions and stabilising temperature rise below two degrees Celsius. This belief has been translated into a broad set of policy proposals generally named REDD (reducing emissions from deforestation and forest degradation). This paper will assess whether a market-linked REDD programme is in fact capable of preventing deforestation efficiently and within the timescale needed. The history of forestry activities within the climate regime will be outlined, before proposals for a market-linked REDD are analysed in the context of contemporary academic discourse and in the context of ‘real-world’ experience. The ability of a market-linked REDD mechanism to ensure adequate measurement, reporting and verification (MRV), land tenure, public participation, and public-private interaction is questioned. Indeed, the paper concludes by suggesting that the lessons drawn from studying previous market-linked schemes for environmental protection indicate that a market-linked REDD scheme will not achieve the desired reductions in greenhouse gasses in the timescale required, and could in fact be an expensive distraction from other simpler and faster methods of carbon reduction.
Emeka Polycarp Amechi
Litigating Right to Healthy Environment in Nigeria: An Examination of the Impacts of the Fundamental Rights (Enforcement Procedure) Rules 2009, in Ensuring Access to Justice for Victims of Environmental Degradation
Nigeria like most other African countries is presently experiencing severe environmental degradation and uncontrolled depletion of its natural resources. Such degradation has had adverse consequences on the health and well-being of Nigerian citizens including their enjoyment of the right to a healthy environment. The degrading state of Nigeria’s environment is not due to lack of regulatory frameworks but as a result of lack of political will to enforce environmental regulations in Nigeria. Hence, in most instances of environmental degradation, the only option left to victims is to petition the court for appropriate relief. However, this route is fraught with many procedural injustices that have contrived in denying access to justice for many victims of environmental degradation. It is in the light of this that the adoption of the Fundamental Rights (Enforcement Procedure) Rules 2009, which provide rules of procedure for the enforcement of fundamental rights in Nigeria, is germane to victims of environmental degradation. This article examines the impacts of the Rules in ensuring access to justice for victims of environmental degradation in Nigeria.
Geetanjoy Sahu
Implementation of Environmental Judgments in Context: A Comparative Analysis of Dahanu Thermal Power Plant Pollution Case in Maharashtra and Vellore Leather Industrial Pollution Case in Tamil Nadu
This paper explores a relatively neglected aspect of understanding the post-environmental judgment scenario: the impact of environmental judgment at the grassroots level and why there has been variation in the implementation of environmental judgments. It examines two Supreme Court environmental judgments on industrial pollution in two different states of India-the Dahanu Power Plant Case in Thane District of Maharashtra and the leather industrial pollution case in Vellore District of Tamil Nadu-and raises one central question-what factors determine the effective implementation of Supreme Court’s environmental judgments.
The premise of this paper is that, despite the existence of a well-established regulatory framework to enforce environmental laws and policies in India, there has been a variation in the implementation of environmental judgments. From the judicial activism perspective, emphasis is placed on how the nature and level of judicial intervention in the post-judgment scenario, ensures the effective implementation of its own directions. It is argued that judicial intervention in the implementation of its decisions has become crucial to enforce its directions, and that this intervention is undertaken not to take away the power and functions of implementing agency, but rather to translate its directions into action at the grassroots level. In turn, the successful enforcement of environmental judgments depends on the nature of judicial activism, or the way in which the judges bring changes in the implementation process. As a consequence, it is not the level of judicial activism in itself which is decisive, but the process of activism that contributes towards the effective implementation of its decisions. In establishing this argument, however, the paper also argues that the process of judicial activism in the implementation of its direction is triggered by the active and consistent involvement of civil-society groups at the grassroots level. It is also found that the consistent presence of civil society in monitoring the implementation of judicial decisions is largely dependent on the resource capacity of the civil-society groups. The paper argues that the striking differentiations at the implementation level in these two above-mentioned cases can be attributed to the nature and level of judicial activism triggered by the active and consistent presence of civil society groups.
Comments
"Waste not Want not"- Sustainable Waste Management in Malta
by Tilak A. Ginige
This paper aims to look at the implications of EU’s sustainable waste management policy as applied to the Maltese Islands. It will review the development of waste management in Malta, pre and post EU accession. It will bring the current analysis of the Waste Framework Directive 2008 in order to understand the implications to Malta.
When discussing waste management in the context of sustainable development, we are considering a system involving a process of change in which the core components, i.e. society, resource use, investment, technologies, institutions, and consumption patterns, need to operate in harmony with ecosystems.
Malta, whose efforts in waste management are reviewed in this paper, whilst serving as the locus for contribution to the waste management debate as early as 2005, has made great efforts in its strive to abide by the “Life Cycle Thinking” approach highlighted in Municipal Waste Management Workshop it hosted together with the EC’s JRC in 2005. The outputs of that workshop showed that the modern aim of waste management plans is to lay the groundwork for sustainable waste management. However, drafting the strategy and implementing it in the field are two different realities, as depicted in this review.
Volume 6/2
Emeka Polycarp Amechi
Linking Environmental Protection and Poverty Reduction in Africa: An Analysis of the Regional Legal Responses to Environmental Protection
Poverty has been identified as the main cause and consequence of environmental degradation in Africa . It follows that if poverty is the main cause of environmental degradation in Africa , then policies, programmes and legal provisions designed to protect the environment in the region will be unsuccessful without a significant improvement in the living standards, wellbeing and livelihoods of the poor. In the same breath, since poverty is a consequence of environmental degradation, then the protection of the environment is critical to the achievement of poverty reduction initiatives such as the Millennium Development Goals in Africa . Hence, it can be argued that there is a mutual relationship between the achievement of environmental protection and reduction of poverty in Africa . This article therefore examines the extent to which the various regional legal instruments for the protection of the environment in Africa recognise this mutual linkage by providing for the promotion of poverty reduction and socio-economic development as integral aspect of their objective of ensuring the protection of the environment in the region.
Senai Andemariam
Legislative Regulation of Traditional Medicinal Knowledge in Eritrea vis-à-vis Eritrea's Commitments under the Convention on Biological Diversity: Issues and Alternatives
On 21 March 1996, Eritrea acceded to the Convention on Biological Diversity which, among others, obliges states to sustainably conserve and develop customary uses of biological resources. Among the many forms of traditional practices of biological resources is traditional medicinal knowledge. Research has revealed that Eritrea has abundant pool of such knowledge and a high percentage of its population, as it is true with many developing and underdeveloped countries, resorts to traditional medicine for curing numerous ailments. However, no specific policy or legislative framework has yet been developed to sift, preserve and encourage the practice. Analysis of existing Eritrean laws and policies will show that they are neither adequate nor specific enough to be used in the preservation and development of Eritrean traditional medicinal knowledge. This article will, therefore, in view of the rich, yet unregulated, traditional medicinal knowledge resource in Eritrea, highlight the need for the development of a specific legal instrument legislation for Eritrea from the perspective of international and country level experiences. It will be argued that the development of a specific legislation is preferred to the alternative of keeping traditional medicinal knowledge as a component of a legal instrument developed for a larger mass such as health or traditional knowledge.
Tumai Murombo
Strengthening locus standi in Public Interest Environmental Litigation: Has Leadership Moved from the United States to South Africa?
There is an increasing shift towards globalisation not only of the world economies but also of the world’s legal systems. Broadening of locus standi in South Africa has deconstructed the fears that informed the conservative common law approach to the issue of locus standi or standing, with its roots in private law individual rights. Most of the reasons advanced for constraining locus standi in public interest environmental law, and constitutional matters for that matter, can all be ameliorated through procedural safe guards and rules tried and tested under the common law, such as rules regarding legal costs, and keeping frivolous and vexatious litigation out of the courts. However, the USA seems to be lagging behind in mainstreaming global international developments in public interest environmental litigation, particularly at the federal level by sticking to archaic common law rules on standing where a litigant wants to bring suit on behalf of the environment. The strict approach to standing in federal courts in the USA since the times of Sierra Club v Morton can be change if the federal judges are prepared to make use of comparative constitutional analysis in adjudication, drawing on lessons from a number of progressive new democracies, in this case the South African experience. I argue that the US federal courts have moved too slowly in following international and foreign developments in the modernisation of the rules governing public interest environmental litigation to the detriment of sustainable development and environmental civic organisations in the USA. I conclude that it is time for the US federal courts, and other conservative common law jurisdictions, to make use of comparative constitutional tools to modernise this blemish aspect of their jurisprudence, following the lead by South Africa.
Gary Cox
The Clean Development Mechanism as a Vehicle for Technology Transfer and Sustainable Development - Myth or Reality?
This paper critically examines the clean development mechanism (CDM) established under Article 12 of the Kyoto Protocol in terms of its effectiveness as a vehicle for technology transfer to developing countries, a specific commitment under the UNFCCC. Fundamentally, the paper poses the question of whether technology transfer as part of the CDM is a myth or a reality in the broader context of sustainable development. Technology transfer between countries of the North and South is explored in a historical context and the emergence of technology transfer obligations is traced in multilateral environmental agreements. The architecture of the UNFCCC and the Kyoto Protocol are examined in relation to technology transfer obligations. Empirical studies are reviewed to gain an understanding of how CDM operates in practice, with a closer examination of a small number of recent CDM projects. There is an update on the Technology Mechanism being established under the Copenhagen Accord. The paper concludes with a summary of the benefits of CDM to date and its current limitations in achieving the scaling-up of affordable environmentally sound technology transfer envisaged in the Bali Action Plan. The conclusion is that technology transfer must be a much more explicit objective of CDM with better targeting of projects in order to achieve locally sustainable equitable outcomes. Furthermore, the link between CDM and technology transfer needs to be much more explicitly made in order that, in the long run, such interventions will lead to viable low emission development pathways in developing countries.
Comments
Participatory Aspirations of Environmental Governance in East Africa
by Nicholas N. Kimani
New ways of thinking about governance are challenging our basic understandings about how we organise ourselves in a world that is increasingly characterised by uncertainty, ambiguity and unpredictability, and about how we should organise ourselves (emphasis added). Through consideration of developments in East Africa under the auspices of a United Nations Environment Programme (UNEP)-administered project, the Partnership for Development of Environmental Laws and Institutions (PADELIA), two important considerations clearly stand out. First, in regional approaches to environmental governance law-makers and policy-makers need to go beyond a formalist understanding of governance which lays sole emphasis upon respective countries’ institutions and legal frameworks. An appreciation of the extent to which shared understandings and common approaches to problem-solving may be tempered by contingent social, cultural and political circumstances is also necessary. Secondly, given the present trend in environmental governance where governmental authority is increasingly shifting away from state institutions towards civil actors, ever-increasing opportunities are presented to civil actors to shape and reshape their environmental laws and policy. As a result, what is left is for these actors is to be proactive and to take more initiative in safeguarding their own environment.
The Role of Trust Building in the Development of Biosafety Regulations in Kenya
by Justin Mabeya, Peter A. Singer and Obidimma C. Ezezika
The potential of biotechnology to contribute to the reduction of hunger, malnutrition and poverty in Africa can only be realised with the presence of biosafety legislation. Recently, Kenya enacted the Biosafety Act 2008 after more than six years of stakeholder engagement with farmers, academicians, researchers, members of the community, funders, regulators, and private sector players. In this article, we highlight the challenges and importance of trust among stakeholders in the development and implementation of biosafety legislation in Kenya . We show how open stewardship by government, time investment, consensus building and sustained stakeholder engagement could be key aspects in building trust among stakeholders in the development of national biosafety regulations. Through our analyses of the process of development of Kenya biosafety regulations, we provide a set of guidelines that could help other African countries develop and improve stakeholder trust in developing biosafety regulations.
Decentralizing Governance of Natural Resources in India: Lessons from the Case Study of Thanagazi Block, Alwar, Rajasthan, India
by Maria Costanza Torri
Numerous countries have undergone decentralisation reforms in the management of natural resources. However, the policies implemented are often not applied in ways compatible with the democratic potential with which decentralisation is conceived.
The paper analyses the issue of decentralisation in resource management, in Thanagazi block, Alwar District, Rajasthan. In this paper I present a case of community initiated decentralisation carried out through village organisations. The aim is to contrast it with the state initiated decentralisation system carried out through the local administrative unit, the Gram Panchayat. Some conclusive remarks will be made on the importance of promoting more inclusive and democratic institutions which take into account the local needs and priorities regarding the management of natural resources and development interventions.
Volume 6/1
Angus Macdonald
Improving or Disproving Sustainable Development in the Clean Development Mechanism in the Midst of a Financial Crisis?
The Clean Development Mechanism (CDM) of the Kyoto Protocol is a dual purpose mechanism aiming to reduce carbon emissions and promote sustainable development. However the CDM, as a market mechanism, seems incapable of fulfilling this latter purpose. Bui lding on the dichotomy between market liberalism and sustainable development as identified by D.M. Driesen, this paper argues that the CDM has become a schizophrenic mechanism trying to achieve two mutually exclusive aims. The paper discusses options for improving sustainable development in the CDM, but concludes these options are either impractical or impossible to pursue. The ‘development dividend’ (as per A. Cosbey, et al) is likely to forever be in arrears. The CDM should explicitly acknowledge its sustainable development failings. This brings into question the CDM’s very existence.
The paper also comments on the effect the financial crisis might have on the carbon market, so crucial for the CDM. The article suggests that the financial crisis will make it even more difficult for the CDM to pursue its sustainable development aim.
Damilola S. Olawuyi
From Kyoto to Copenhagen: Rethinking the Place of Flexible Mechanisms in the Kyoto Protocol's post 2012 Commitment Period
Amidst debates between the North and the South, Emission Trading (ET), Clean Development Mechanism (CDM), and Joint Implementation (JI) were adopted as flexible mechanisms under the Kyoto Protocol. These mechanisms allow developed countries to meet their emission reduction targets by investing in clean projects in other countries of their choice. The implementation of these mechanisms have however been faced with many problems which cast doubts on their efficacy as viable options for combating climate change. One main criticism of these mechanisms is that they lead to a trade off between sustainability and emission reduction. This paper examines the efficiency of these mechanisms in combating climate change. It reviews the main criticisms of the flexibility mechanisms in an attempt to answer the question whether the flexibility idea should still be retained as part of the post 2012 commitments. While arguing in favor of flexibility, this paper offers ideas on how their effectiveness can be enhanced in the post 2012 commitment period.
Ross Andrew Clarke
Moving the REDD Debate from Theory to Practice: Lessons Learned from the Ulu Masen Project
As the dust settles after Copenhagen and the barriers to reaching global consensus on combating climate change are put into stark relief, REDD still has potential to become a UNFCCC success story. In relation to REDD, there is agreement on many core issues and significant momentum remains towards a REDD mechanism firmly engrained in the post-2012 climate change framework. Yet most debate occurs in the abstract with policy and methodological decisions made with minimal conception of how these issues will play out in REDD participant countries. This article aims to break this trend and takes a prominent REDD pilot activity as its reference point. The Ulu Masen Project in Aceh , Indonesia , while only in its infancy, provides valuable lessons on legal frameworks, benefit-sharing and financing. Through analysis of UNFCCC negotiations on REDD and an examination of how relevant issues have been addressed in the Ulu Masen Project, the article aims to contribute to a more grounded, practical debate on a future UNFCCC REDD mechanism.
David J. Kelly
The Case for Social Safeguards in a Post-2012 Agreement on REDD
This paper explores the policy need and legal case for including social safeguards in a post-2012 agreement on reducing emissions from deforestation and forest degradation (REDD). One serious charge laid against so called ‘market-based’ approaches to REDD is the potential for forest dwelling communities to be dispossessed from their land and to lose other rights afforded to them in international human rights law. Rather than criticise current REDD proposals as being inherently negative for forest dwelling communities, this paper asks firstly, whether REDD can potentially work in their favour and secondly, how such an opportunity could be realised in a future REDD agreement.
After reviewing current REDD proposals and related threats, this paper argues for the inclusion of social safeguards within the post-2012 agreement on REDD. The primary cause of forest dwelling communities vulnerability is not REDD itself but the potential for REDD to operate in the absence of social safeguards. This paper presents four mutually reinforcing safeguards to protect forest dwelling communities in the context of a future agreement on REDD. This paper finds that a REDD market which requires minimum international standards of social protection is likely to benefit forest dwelling communities.
Philippa Venning
"REDD" at the Convergence of the Environment and Development Debates - International Incentives for National Action on Avoided Deforestation
Developing countries would be more likely to participate in any new international climate change agreement if they could earn and trade carbon credits from avoided deforestation, also known as ‘REDD’. This paper argues that REDD should be included in any new agreement but, unlike the Clean Development Mechanism, its credits should be accounted for at a national-level, rather than on a project-basis. Experience with the Kyoto Protocol and development assistance over many decades shows that to have effective and sustainable environmental and development benefits, a national-based approach to REDD would be needed to transmit international financial incentives into national development planning. Indonesia is used as an example to show how a national-based approach to REDD could be effectively implemented in the country with the highest deforestation rate in the world.
After a brief discussion of REDD and its status in the international climate change regime post-Copenhagen in Part I, Part II examines the different approaches to the scale of REDD being mooted in the negotiations for a new international agreement. Part III shows that many arguments against including REDD could be addressed with a national-approach. For remaining issues, particularly challenges in transferring profits from the sale of REDD-generated credits to local level incentives to protect forests, development lessons internationally and from Indonesia show that such transfers could be structured in an effective way not only to achieve environmental benefits, but also to achieve broader development and poverty reduction aims. These lessons, discussed in Part IV, further bolster the case for any post-2012 agreement to incorporate a national-based approach to REDD, integrated into national development plans.
Feja Lesniewska
REDD: The Copenhagen Effect
An agreement on reducing emissions from avoided deforestation and degradation at the UNFCCC Conference of the Parties 15 (COP 15) in Copenhagen December 2010 was not forthcoming. For a number of reasons this is a welcome outcome as several important outstanding legal and technical issues remain unresolved. This article examines the results from COP 15 including the Copenhagen Accord. It focuses on the key issues of principles, finance models, and environmental and social safeguards. It concludes with an assessment of the potential effect that the COP 15 will have on REDD negotiations this coming year prior to the UNFCCC COP 16 in Mexico December 2010.