Ecological Debt and Multilateral Environmental Agreements MEAs Frank
Ecological Debt and Multilateral Environmental Agreements (MEAs) Frank Maes Department of Public International Law – Ghent University
Research Questions l “Ecological debt” as a concept in MEA’s l “Ecological debt” as a concept in international law l Legal principles/concepts more or less related to or substitutes for “ecological debt” Ecological Debt and Multilateral Environmental Agreements
Working definition l The ecological debt of country A consists of: 1. The ecological damage caused over time by country A in other countries or in an area under jurisdiction of another country through its production and consumption patterns; and/or 2. The ecological damage caused over time by country A to ecosystems beyond national jurisdiction through its consumption and production patterns; and/or 3. The exploitation or use of ecosystems and ecosystem goods and services over time by country A, at the expense of the equitable rights to these ecosystems and ecosystem goods and services by other countries or individuals. Ecological Debt and Multilateral Environmental Agreements
Ecological debt in MEAs l Examined MEAs: l l l United Nations Framework Convention on Climate Change (UNFCCC) & Kyoto Protocol Convention on Biological Diversity (CBD) & Cartagena Protocol United Nations Convention to Combat Desertification (UNCCD) Vienna Convention for the Protection of the Ozone Layer (Vienna Convention) & Montreal Protocol Convention concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention) Ecological Debt and Multilateral Environmental Agreements
Ecological debt in MEAs No direct references l ‘Indirect’ references l l l Principle of intra- and intergenerational equity Principle of common but differentiated responsibilities Adaptation Fund (Kyoto Protocol) Equitable Benefit Sharing (CBD) Ecological Debt and Multilateral Environmental Agreements
Principle of intra- and intergenerational equity l l l Principle 3, Rio Declaration: “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations”. Protecting the environment for present and future generations Several MEAs: UNFCCC (Preamble, art. 3(1)); CBD (Preamble, art. 2); UNCCD (Preamble) l Future orientated, not to the past Ecological Debt and Multilateral Environmental Agreements
Principle of common but differentiated responsibilities l Principle 7, Rio Declaration: “States shall cooperate in a spirit l Global environmental problems Developed countries have different responsibility Several MEAs refer tot this principle: UNFCCC (art. 3(1), l l of global partnership to conserve, protect and restore the health and integrity of the Earth's ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command. ” 4(1)); Kyoto Protocol (art. 10, art. 13 (4), c and d); Implementation: Montreal Protocol (art. 5), Kyoto Protocol (art. 3) Not limited to the future Ecological Debt and Multilateral Environmental Agreements
Adaptation Fund (Kyoto Protocol) l l l ° 2001 - not yet operational Finance implementation of concrete adaptation projects and programmes Generated by 2% share of proceeds on CDM project activities + additional funding Special Climate Change Fund, Least Developed Countries Fund Might evoluate towards an implicit recognition of an ecological debt, finance will however not sufficient to cover ecological debt as such Future orientated, not to the past Ecological Debt and Multilateral Environmental Agreements
Equitable Benefit Sharing (CBD) l l Art. 15 (7) and 19 (1) & (2) CBD: Fair sharing of benefits arising from the use of genetic resources Biodiversity Prospecting Agreements No other links concerning use of natural resources with equitable compensation Future orientated, not to the past Ecological Debt and Multilateral Environmental Agreements
Ecological Debt and Multilateral Environmental Agreements The Brazilian Proposal l Use of an agreed simple climate model l GHG emission reductions of industrialised countries based on contribution to temp. increase on earth, not on current emissions l Takes into account the historical responsibility of countries
Ecological debt and international law l l l Ecological damage and liability Polluter pays Exploitation and use Ecological Debt and Multilateral Environmental Agreements
Ecological damage & liability l l “States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction” (Principle 13, Rio) environmental damage and civil liability – quid ecological damage – quid reasonable restoration (e. g. CLC 1992) to whom attribute compensation for ecological damage substantial/significant damage Ecological Debt and Multilateral Environmental Agreements
Polluter pays l Polluter pays principle: “National authorities should endeavour to promote the internationalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment" (Rio, Principle 16) - internal or transnational context identifying the polluter how much pollution and the time-frame preventive measure can be borne by the polluter Ecological Debt and Multilateral Environmental Agreements
Exploitation and use l “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction” (Principle 2, Rio) Ecological Debt and Multilateral Environmental Agreements
Exploitation and use Differentiation between exploitation under jurisdiction (sovereignty and sovereign rights) and beyond l Beyond: principle of common heritage of mankind (Moon, Area in LOSC (art. 136)), however GHG emissions are not beyond l Ecological Debt and Multilateral Environmental Agreements
Equitable exploitation and use l l Exploitation and use under jurisdiction of States in case of international watercourses (New York Convention 1997) Principle of equitable and reasonable utilization (art. 5) to be balanced against the obligation not to cause significant harm (art (7) - no definition of equitable and reasonable: weighting of all relevant factors (art. 6) - no hierarchy between factors, except “vital human needs” (art. 10) - no explicit reference to past activities - implementation case by case, based on agreement Ecological Debt and Multilateral Environmental Agreements
Exploitation and use l Compensation for historical damage to the environment due to exploitation, is rare in international law - Case concerning [rehabiliation of] certain phosphates lands in Nauru (Nauru v. Australia), ICJ, 1989 -1993. This case has been solved by a out of court settlement between the parties concerned. Australia seems to have paid $A 57 million in cash and pledged $A 50 million over a period of 20 years Ecological Debt and Multilateral Environmental Agreements
Conclusion l l No clear legal obligation in MEA’s to support the concept of “ecological debt” No support for the concept of “ecological debt” in international case law For the time being no political support to introduce the concept of “ecological debt” in international law Principle of common but differentiated responsibilities and polluter pays principle seem for the moment the most suitable principles to provide a legal basis for “ecological debt” Ecological Debt and Multilateral Environmental Agreements
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