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Read an excerpt of this book! Add to Wishlist. USD Sign in to Purchase Instantly. Explore Now. Buy As Gift. Overview Is 'sustainable development' a charade sold to an increasingly misled public? This book presents a wide-ranging, penetrating critique of sustainability and what it actually means. The author argues that despite the rhetoric of socially and environmentally sustainable development and the ever-increasing number of legislative environmental policies, the real issues such as consumption, population growth and equity are either sidestepped or manipulated in international policy and law.

Analyzing the main areas of concern - economic growth, market structure, trade, aid, debt, security and sovereignty - he shows that the entire development structure and the underpinnings of the debate are leading down quite a different path to that intended by sustainability. The human rights that have been invoked include both procedural rights such as rights to information, participation and legal redress and substantial guarantees such as rights to life, health and enjoyment of property.

It is convenient to consider each of these two categories of case in turn. In contrast, few such difficulties have emerged in the context of civil and political rights of a procedural character. This is mainly because enhancing respect for such rights can help promote broader and more meaningful participation in processes of environmental governance. Both environmental agreements and human rights texts include reference to three specific procedural guarantees: a right to obtain information, to participate in decision-making and to be an effective remedy for breaches of the law.

This Convention, the first to guarantee such rights in a legally binding environmental instrument, requires not only that states implement these rights at a national level, [87] but also that they promote their application in international environmental decision-making processes. The right to environmental information has generally been construed narrowly by human rights bodies. The applicants asserted that the Italian government had violated the provision by failing to provide the public with information concerning the risks of operation of a chemical facility near the town of Manfredonia in southern Italy.

Concluding that there was no breach in this instance, the Court held that article 10 did not impose a positive obligation to collect and disseminate information, but instead only prohibited governments from interfering with the freedom to receive information that others are willing to impart. It may be noted here that international environmental law is developing a somewhat broader approach to informational rights. The Aarhus Convention imposes, in articles 4 and 5, obligations upon parties to provide access to environmental information, and to that end to collect and disseminate relevant information.

However, other instruments are not as expansive. For instance, as the Permanent Court of Arbitration held in the OSPAR Arbitration, [93] the Convention for the Protection of the Marine Environment of the North-East Atlantic [94] cannot be seen to establish a general freedom of information scheme as known to some domestic legal systems. Turning from informational to participatory rights, it is striking that human rights and environmental texts refer to the similar basic requirement that individuals have an opportunity to participate meaningfully in government.

A civil right that has often engaged the attention of human rights bodies in cases involving environmental issues is the guarantee of effective administrative or judicial remedies. The International Covenant on Civil and Political Rights ICCPR requires states to ensure that persons whose rights are violated have access to an effective remedy, to be determined by competent judicial, administrative or legislative authorities.

However, it has been frequently relied upon by applicants asserting a failure to provide an adequate judicial hearing of disputes concerning matters such as the granting of permits to carry out activities affecting the environment. It has been made clear that article 6 can only have an application where an interest of the applicants has, or may be, directly affected. Complainants to human rights bodies have made a range of innovative arguments in an effort to pursue remedies for environmental damage by reference to established rights including the right to life, the right to health, the right to respect for private life and home, and the right to peaceful enjoyment of possessions.

The following discussion considers the key human rights cases in which such submissions have been made, and assesses the extent to which these have involved intersections with international environmental law.

The environment and the Millennium Development Goals

Although the right to life has been invoked in a number of petitions, most of these have been found to be inadmissible on the grounds that the applicants had not pointed to a real and imminent threat to life. These violations resulted from a variety of factors, including the construction of a highway through Yanomami territory, the failure to establish a promised Yanomami Park, the authorisation of resource exploitation, and allowing the penetration of Yanomami lands by outsiders carrying contagious diseases.

Civil and criminal proceedings were instigated against several individuals in local government who had failed to take preventive measures in the face of warnings from an expert consultant that precisely such an explosion would occur. However, no criminal sanctions were ultimately imposed by the Turkish courts, and in civil proceedings the applicant was awarded only a small sum in damages.

In the ECtHR it was held that there had been a breach of the right to life. The Court developed its reasons by reference to European and international environmental law relating to civil and criminal liability including the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment.

Cases brought in reliance on these two provisions are in many respects akin to common law actions for private nuisance. Much as common law nuisance involves striking a balance between conflicting private property interests, [] these human rights cases have often attempted to balance the interests of individuals in the quiet enjoyment of their property against broader community interests such as economic development.

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In finding for complainants affected by noise and other forms of pollution they have nonetheless promoted a degree of incidental environmental protection. Most cases involving article 8 of the ECHR have related to noise pollution. Lopez-Ostra v Spain [] is arguably the most important decision of the ECtHR relating to environmental harm violating the right to private life and the home, and involved a major pollution incident.

In this case the applicant had brought a petition before the Court after suffering serious health effects from fumes emitted from a tannery waste-treatment plant located just 12 metres from her home. The start-up of the plant had emitted noxious fumes causing health problems for a number of local residents, and as a result the town council evacuated those affected, including the applicant, and rehoused them free of charge in the town centre.

The authorities also ordered a partial closure of the plant, but permitted certain waste-treatment activities to continue. The Court observed that:. A similar conclusion was arrived at by the Court in Guerra in which the ECtHR reiterated that environmental pollution may violate article 8 by affecting the well-being of individuals and preventing them from enjoying their homes. However, the compensation that the applicants sought for biological damage was refused, a result that perhaps confirms that existing human rights, focused as they are on human wellbeing, offer only indirect protection of environmental interests.

This overview of the developing environmental jurisprudence of human rights bodies suggests no collision or conflict with mainstream environmental jurisprudence, or any challenge to conventional understandings of rules and principles of international environmental law. In the majority of cases there has been no detailed consideration or application of environmental norms, and when international environmental law has been referred to it has been in broad and uncontroversial terms.

Therefore, in addressing environmental questions through the specific terminology of international human rights law it would seem that the case law of human rights bodies has as yet posed no threat to the integrity of international environmental law. Indeed, given the synergies between procedural rights in both the human rights and environmental contexts, determinations on issues such as access to information, participation in decision-making, and right to legal redress for injury, form an important body of precedent for the implementation of similar rights recognised in environmental law.

These decisions will be of considerable assistance in understanding and applying the detailed provisions of the Aarhus Convention as states begin to implement its provisions at national and international levels. It should not be thought, however, that the relationship between human rights guarantees and international environmental law is necessarily unproblematic. The absence to date of conflict, or any tendency towards fragmentation, is largely reflective of the nature of the complaints that have been brought. It has been seen that complainants have pointed to substantive human rights that assist them in addressing underlying environmental interests.

However, it is possible to envisage conflicting scenarios in which the recognition of economic, cultural or social rights may involve collision with norms requiring the protection of environments, ecosystems or species. When competing rights are in issue, priorities will need to be set and trade-offs made, and such a process may pose some risk of normative fragmentation for international environmental law. Whereas much discussion of the relationship between human rights and environmental protection has involved reference to several important synergies, the overwhelming impression emerging from assessments of the interaction between international trade and environmental regimes is that problems of underlying tension and conflict pertain much more prominently than any systemic complementarity.

By virtue of its breadth and its institutional sophistication, international trade law has far-reaching implications for environmental governance at the domestic and international levels. The increase in global trade, a key dimension of economic globalisation, has inevitably meant that some domestic and international measures to protect human health or the natural environment carries ramifications for international trade law.

The most fundamental issue arising from this interaction is whether trade and environmental policies are mutually supportive, [] or whether the liberalisation of trade is inimical to environmental conservation and protection. This debate concerning the compatibility of the trade and environment agendas has been particularly prominent in international law.

Notwithstanding the attempt to integrate the agendas through the principle of sustainable development, [] a range of questions continue to be raised concerning the extent to which there is conflict or congruence between the trade law and environmental law. Since it commenced operation on 1 January , over complaints have been notified to the WTO, with over Panel and Appellate Body reports adopted. This has in turn implicated environmental rules and standards. While the WTO dispute system may only be used to resolve disputes relating to WTO rules, [] it is not a closed or self-contained regime.

The key organising principles of the WTO system are the most-favoured nation principle, [] and the national treatment principle.

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  • However, they are subject to article XX of the GATT, which sets out certain limited exceptions for health and environmental measures:. The cases were brought under the GATT panel system in response to restrictions imposed by the United States on imports of yellowfin tuna harvested in a manner that resulted in excessive by-catch of dolphins in the Eastern Tropical Pacific Ocean. Under the Marine Mammal Protection Act US MMPA tuna imports were prohibited unless the harvesting states maintained a program to reduce incidental taking of marine mammals comparable with that of the United States, and unless the average rate of such incidental taking was similar to that for United States-flagged vessels engaged in tuna fishing.

    Imports were also prohibited from intermediary nations that processed tuna that had not been caught in conformity with MMPA standards. The decisions attracted strong criticism on the grounds that they privileged trade considerations over legitimate efforts to achieve the protection of marine wildlife. However, when considering the impact of these decisions upon international environmental law it must be noted that in neither case did the United States seek to make arguments beyond the terms of the GATT itself. Beyond suggesting that trade measures pursuant to a multilateral agreement to protect cetaceans would be GATT-consistent [] the Panels made no reference to environmental instruments potentially having a bearing on the cases.

    The environmental case law of the WTO was inaugurated in Gasoline but again it was not deemed necessary to address issues of international environmental law when rejecting the WTO-consistency of United States gasoline standards designed to improve air quality. In conformity with the Endangered Species Act US , the United States government imposed a prohibition on the import of shrimp harvested using methods that involved high rates of mortality for species of sea turtle protected by CITES.

    The complainants were ultimately successful, with a Panel finding that the import ban was inconsistent with WTO rules and that article XX did not apply. However, it effectively reversed the rationale for this conclusion, thereby opening the door for unilateral environmental measures in certain circumstances. Indeed there is much that is significant about the Appellate Body report for national and transnational environmental management.

    The Appellate Body adopted a two-stage test for determining whether the measures adopted by the United States were justified under article XX. If so, the second stage involved determining whether the measure met the requirements of the article XX chapeau in not being applied in a manner that would constitute unjustifiable discrimination or a disguised restriction on international trade. According to the Appellate Body it was not acceptable for the United States to have adopted measures that prohibited imports from some countries where shrimp were caught using the same turtle-friendly methods employed in the United States simply because those countries had not been certified.

    The main significance of this case is the ultimate finding that temporary measures imposed by the United States were permissible pending international agreement on sea turtle conservation. To justify this conclusion the Appellate Body referred to principle 12 of the Rio Declaration, which states that environmental measures should only be based upon consensus and co-operation as far as this is possible.

    The United States was therefore permitted to apply a unilateral measure so long as it continued to negotiate an internationally-agreed action-plan to improve the protection of endangered sea turtles. No article XX case before or after the Shrimp-Turtle Cases has engaged in the same detailed consideration as to the relevance of international environmental law to the interpretation and application of the GATT.

    The only dispute in which the prospects of such reliance has so far emerged was Chile: Measures Affecting the Transit and Importation of Swordfish [] in which Chile justified closing its ports to Spanish vessels on the basis of UNCLOS, which it was said required it to take measures to protect a straddling fishery under threat of collapse.

    The dispute, which also involved the commencement of parallel proceedings under the UNCLOS dispute settlement system, [] was ultimately settled. The SPS Agreement is perhaps the WTO agreement most closely situated at the intersection between free trade and environmental protection agendas, and in respect of sanitary and phytosanitary SPS measures it elucidates upon the general environmental exemption contained in article XX b of the GATT.

    Under no circumstances may they be disguised attempts at protectionism or discrimination.

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    Disputes over the interpretation and application of these provisions are a burgeoning area of environment-related litigation in the WTO and there is the potential for a range of issues of international environmental law to be implicated in their resolution. Most obvious is the specific question as to whether the precautionary principle may be relied upon to justify quarantine and other health-related trade measures, or whether the SPS Agreement establishes a sui generis system for the evaluation of scientific uncertainty and risk.

    To defend its actions the EC relied specifically on the precautionary principle, arguing that it was a binding rule of customary international law. For their part the United States and Canada argued that it was only an emerging principle that might eventually crystallise into a general principle of law recognised by civilised nations.

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    Each of the Panels found that to the extent that the principle could be considered as part of customary international law, and be used to interpret articles 5. The Appellate Body reached the same conclusion, but for somewhat different reasons. On the issue of the precautionary principle the Appellate Body avoided answering the question as to its character.

    The Illusion of Progress: Unsustainable Development in International Law and Policy

    Articles 5. In addition, because the import bans had been in place for over a decade, the EC had not sought to rely on article 5. The Appellate Body explained that:. In sum, therefore, the Appellate Body considered that the SPS Agreement itself permitted the taking of precautionary measures, where prudence and precaution demanded them. In this respect Pauwelyn has argued that the Appellate Body reached the correct conclusion, but for the wrong reasons.

    The evidence to date : Although trade liberalisation and environmental regimes reflect substantially different objectives, which are pursued through distinctive institutions, the foregoing review of relevant WTO jurisprudence has identified no evidence to suggest that the WTO has adopted parochial interpretations of international environmental law in conflict with prevailing understandings.

    In the Shrimp-Turtle Cases the Appellate Body referred to a range of international environmental instruments to justify its decision on several questions relating to the interpretation of the GATT. Quite to the contrary, it may be argued that by faithfully reciting the principle of sustainable development, and drawing upon environmental instruments, the Appellate Body was anxious to address the criticism that the WTO was indifferent or hostile to environmental concerns.

    The Beef Hormones Case is essentially neutral as regards its influence upon international environmental law as the Appellate Body found it unnecessary to enter into an evaluation of the precautionary principle. Nonetheless, the decision is controversial in the sense that the Appellate Body adopted a curious approach to relating this asserted rule of customary international law to WTO rules. Nonetheless, in dealing with these disputes they may be called upon to apply all relevant rules of international law, including those set out in environmental agreements, which are binding on the disputing parties.

    Future directions : Although the practice to date suggests no reason to be alarmed about any fragmentation of international environmental law as yet perpetrated at the hands of the WTO dispute-settlement system, there have only been a limited number of cases and there remain possibilities for divergences to develop in the future.

    In this regard it must be acknowledged, as Eckersley has observed, that it is in the WTO, and not the dispute resolution systems of environmental regimes, where disputes over trade restrictive measures are most likely to be adjudicated:. It is precisely because of this positionality of the WTO that the question of fragmentation of international environmental law remains a live one.

    There appear to be three main areas where issues of international environmental law are likely to arise in future WTO litigation. The first of these is when international environmental law has relevance for interpretive purposes. In essence the GATT was updated to reflect contemporary environmental standards.

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    The Appellate Body has therefore made it clear that the combined operation of article 3 2 of the DSU and article 31 3 of the Vienna Convention on the Law of Treaties [] means that environmental rules may be used to assist in the interpretation of WTO agreements. As international environmental law develops, this means that WTO law may likewise evolve. This will in turn depend on the extent to which environmental considerations are prioritised within the broader discursive context in which WTO dispute settlement takes place.

    Just as the Appellate Body sought in that dispute to meet the expectations of many WTO members that environmental considerations be given a more prominent place in international trade law, it is entirely possible that future decision-makers may be more sympathetic to the views of some WTO members from the global South that the WTO regime should not privilege the interests of Northern environmental movements at the expense of trade-led developmental policies.

    The second area in which the application of international environmental law may be in issue is when a WTO member relies upon a multilateral environmental agreement to justify trade restrictive measures that would offend the organising principles of the WTO regime. Approximately 40 multilateral environmental agreements include trade-related provisions, [] one of the earliest being CITES and the Cartagena Protocol the most recent. However, no WTO case has yet arisen where a respondent state has mounted a defence based directly upon these, or indeed any other, environmental instruments.

    Nonetheless, it is in this second context that the risk of fragmentation remains most real, as the WTO may yet be called upon to reconcile conflicting standards, and in so doing effectively render nugatory one of those norms.


    Moreover, where states have committed themselves to a multilateral environmental regime with trade consequences it appears politically unlikely that trade restrictions imposed in conformity with the environmental instrument will be the subject of a WTO challenge. Indeed this was a central question raised, but apparently avoided, in European Communities: Measures Affecting the Approval and Marketing of Biotech Products Biotech Products [] in which Argentina, Canada and the United States pursued [] a complaint in relation to delays in the approval by the EC of genetically modified GM crops within Europe.

    The target of the complaint in the case was a de facto moratorium imposed by the EC on approvals of GM products in Europe in Since the early s the EC has adopted a precautionary stance towards the importation and approval of genetically modified organisms GMOs. These replaced the earlier Directive, and under this new regime a number of applications for GMOs have been resubmitted for approval, and these remain under active consideration.

    The dispute in the Biotech Products Case revolves only around the delays experienced from under the previous regime, rather than the new approvals system.