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The Nature of Law Newsletter, October 2007

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PROVIDING NEWS & PERSPECTIVES ON ENVIRONMENTAL, SOCIAL & INTERNATIONAL LAW PRACTICE

Volume 1, Issue 5, October 2007

Message from the Chief Counsel


Since our last newsletter earlier this year, there have been several important developments in international and environmental law, especially in the realm of protection of indigenous people’s rights and reduction of ozone-depleting substances. Salman Salman first discusses the individual and collective rights of indigenous peoples recognized in the United Nations Declaration on the Rights of Indigenous Peoples, which was adopted by the UN General Assembly on September 13, 2007. Next, I highlight the main outcomes and decisions from the Nineteenth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, which adopted a landmark historic agreement on an accelerated phase-out of hydrochlorofluorocarbons (HCFCs). Sachiko Morita then analyzes the recent WTO dispute on Retreaded Tyres. Finally, Patrice Talla Takoukam provides an overview of the discussions held at the eighth meeting of the UN Open-Ended Informal Consultative Process on Oceans and the Law of the Sea, where the participants identified several gaps in the existing legal framework governing marine genetic resources.

For anyone interested in a more in-depth review of any of these matters, please do not hesitate to contact LEGEN.

Charles E. Di Leva
Chief Counsel, Environment and International Law Unit
Legal Vice Presidency - The World Bank

Viewpoint


The Adopton of the United Nations Declaration on the Rights of Indigenous Peoples
By Salman M.A. Salman

A Significant Step Forward in the Fight Against Ozone Depletion
By Charles Di Leva

Environmental dispute at the WTO: Brazil - Measures Affecting Imports of Retreaded Tyres
By Sachiko Morita

Marine Genetric Resources and UNCLOS
By Patrice Talla Takoukam



The Adopton of the United Nations Declaration on the Rights of Indigenous Peoples
By Salman M.A. Salman

Introduction

On September 13, 2007, the United Nations General Assembly adopted the “United Nations Declaration on the Rights of Indigenous Peoples.” 143 countries voted for the Declaration, with four countries opposing (Australia, Canada, New Zealand and the United States), while 11 countries abstained.

Preparation of the draft Declaration started in 1985 by the Working Group on Indigenous Population, which completed the work in 1993. The Working Group referred the draft Declaration that year to the Commission on Human Rights which deliberated it for about ten years. The Declaration was finally adopted on June 29, 2006, by the Human Rights Council, the successor of the Commission. Of the 47 members of the Council, 30 members voted for the Declaration, with 12 abstentions; and with only Canada and the Russian Federation voting against it. Thus, it took more than two decades to complete the work.

The Declaration is a non-binding instrument; it is neither signed nor ratified by states as is the case with treaties and conventions. The Declaration calls on states to take all appropriate measures, including legislative, to achieve its ends.

Rights Recognized Under the Declaration

The Declaration sets forth a number of individual and collective rights of Indigenous Peoples, including their rights to culture, identity, language, employment, health, education, land and resources. The opening articles restate the basic human rights of indigenous peoples (Artilce1), including non-discrimination (Article 2), self-determination (Article 3) and the right to life (Article 7). Article 8 proclaims the prohibition of forcible assimilation, affirming the states’ obligation to provide effective mechanisms of prevention and redress. According to Article 10, no relocation may take place “without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.” Free, prior and informed consent is also required before states may adopt and implement legislative or administrative measures potentially affecting indigenous peoples (Article 19), or before “the approval of any project affecting their lands and territories and other resources, particularly in connection with the development, utilization or exploitation of their mineral, water or other resources” (Article 32). Article 23 expressly acknowledges their “right to determine and develop priorities and strategies for exercising their right to development.” Articles 26 to 32 deal with the protection of lands, territories and resources (natural and cultural) of indigenous peoples, and calls on states to give legal recognition to these lands, territories and resources. Finally, Article 43 states that the rights recognized under the Declaration constitute “the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.”

Limitations to the Exercise of Rights

The exercise of the rights set forth in this Declaration is to be subject only to such limitations as are determined by law, and in accordance with international human rights obligations (Art. 46 (2)). Any such limitation is to be non-discriminatory and strictly necessary solely for the purpose of securing due respect for the rights of others and for meeting just and most compelling requirements of a democratic society (Art. 46 (2)).

It is further stated that nothing in this Declaration may be interpreted as implying for any states, people, group or person any right to engage in any activity or perform any act contrary to the U.N. Charter, or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states (Art. 46 (1)).

Article 46 (1) was added during negotiations of the draft Declaration by the members of the General Assembly of the United Nations, and after the Human Rights Council adopted the draft Declaration. Inclusion of this article helped ally the concerns of many states who agreed, as a result of addition of the article, to vote for the Declaration.

Possible Implications for the UN and its Specialized Agencies

Not only does the Declaration ask states to take appropriate measures, including legislative measures, in consultation and cooperation with indigenous peoples, to achieve the ends of this Declaration (Art. 38), it also states that the U.N., its bodies (including the Permanent Forum on Indigenous Issues) and specialized agencies, including at the country level, shall promote full application of the provisions of this Declaration and follow up on its effectiveness (Art. 42). The Declaration points out that the organs and specialized agencies of the U.N. system and other intergovernmental organizations shall contribute to the full realization of the provisions of this Declaration through the mobilization, inter alia, of financial cooperation and technical assistance, and through establishing ways and means of ensuring participation of indigenous peoples on issues affecting them (Art. 41). Indigenous peoples also have the right to financial and technical assistance from states and through international cooperation, for the enjoyment of the rights contained in the Declaration (Art. 39).

Conclusion

As indicated above, the Declaration is a legally non-binding instrument. However, its adoption marks an important historical point, successfully ending a process that started more than two decades ago. It is expected that Indigenous Peoples Organizations and Non-governmental Organizations will use the momentum generated by its adoption to try to get states to pass domestic legislation incorporating those rights, and may also seek certain policies and measures to be put in place by other entities.


 
 
A Significant Step Forward in the Fight Against Ozone Depletion
By Charles Di Leva

The nineteenth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer (MOP-19) took place in Montreal, Canada, from 17-21 September 2007. This year marks the twentieth anniversary of the adoption of the Protocol.

With almost 95% of ozone-depleting substances (ODS) successfully eliminated under the Protocol, the Protocol is often considered one of the most successful international agreements to date. However, many delegations at MOP-19 stressed that more work remained to be done. Several scientific presentations at MOP-19 noted that stratospheric ozone levels remain low, the Antarctic ozone hole is still at its worst, and skin cancer cases are expected to multiply several times in the next decade.

MOP-19 adopted 29 decisions, notably including a landmark historic agreement on an accelerated phase-out of hydrochlorofluorocarbons (HCFCs), and decisions on critical-use nominations for methyl bromide, and monitoring of transboundary movements and illegal trade in ODS. The Parties also adopted a “Montreal Declaration,” which reaffirmed Parties’ commitment to phase out consumption and production of ODS through a range of actions. The following is a summary of main outcomes and decisions of the Meeting.

HCFCs: HCFCs are a class of chemical compounds mainly used as refrigerants in the air conditioning and refrigeration industries, and they contribute significantly to the depletion of ozone layer. The decision adopted at MOP-19 accelerates the phase-out of HCFC production and consumption by a full decade, moving the commitment for phase-out by Article 2 parties from 2030 to 2020, and for Article 5 parties (which include certain developing countries) from 2040 to 2030. While celebrating the significance of this decision, some delegations voiced caution and noted that success of this acceleration is contingent upon the availability of alternatives that are ozone and climate friendly, safe and economically viable. Some delegates also noted that commitments for an accelerated phase out of HCFCs will help address climate change. Some statistics indicate that the HCFC phase-out could result in reductions of as much as between 18 and 30 billion tons of CO2 equivalent emissions, which is up to five times the reductions under the Kyoto Protocol in its first commitment period.

Critical use exemptions for methyl bromide: Methyl bromide is used as an agricultural soil and structural fumigant to control a wide variety of pests. MOP-19 achieved progress in reducing critical-use exemption (CUE) tonnages for methyl bromide. At MOP-18, methyl bromide CUEs permitted for 2008 totaled around 7,500 tons but CUEs granted by MOP-19 for 2009 totaled only 4,400 tons, a drop of approximately 42%. This outcome continues the recent pattern of reductions in CUE totals granted each year, but the drop is greater than at past MOPs, leading some to suggest that methyl bromide may soon be completely phased out. However, others noted that CUEs still total thousands of tons, and that additional CUEs for 2009 could still be requested by some parties at MOP-20.

Monitoring of transboundary movements and illegal trade in ODS: MOP-19 also took a decision on voluntary domestic options for combating illegal trade. With an estimated 20% of traded ODS being traded illegally, many developing country parties noted that there is still much more for parties to do and that they will bring the issue to the table again at MOP-20. Among other things, MOP-19 reminded Parties of their obligations under the Protocol to establish an import and export licensing system for all controlled ODS, and urged parties to fully and effectively implement and actively enforce their system.

Montreal Declaration: Delegates acknowledged the historic global cooperation achieved over the last 20 years under the Protocol but recognized that the ozone layer still remains vulnerable and that its long term protection depended on continued vigilance, dedication and actions by Parties. The Parties reaffirmed their commitment to phase-out consumption and production of ODS. Also agreeing that the Protocol “operates” on the principle of “common but differentiated responsibilities,” Parties recognized the importance of assisting Article 5 parties in fulfilling their obligations through various means including technology transfer, information exchange and partnership for capacity building.

MOP-19 marks a significant step forward in the fight against ozone depletion. Further challenges lie ahead, however, including illegal trade of ODS and CUE for methyl bromide and other ODS. Many delegations, including developing country parties, expressed their concerns with the possible negative impacts of alternatives. One alternative in particular, HFCs, have a global warming potential far greater than HCFCs and reliance on them may create more problems than it solves. Therefore, as Parties continue with their efforts to fight against ozone depletion, it will be vital to ensure that the next solution (in terms of ODS alternatives) will not become the next problem.


 
Environmental dispute at the WTO: Brazil - Measures Affecting Imports of Retreaded Tyres
By Sachiko Morita

On June 12, 2007, the WTO Panel circulated its report on the Brazil – Measures Affecting Imports of Retreaded Tyres dispute. Initiated by the European Communities (EC) in 2005, the dispute involved a series of trade restrictions imposed by Brazil on retreaded tyres exported by the European Union (EU). Retreaded tyres are old tyres that have been reprocessed for second and final use. For international trade purposes, retreaded tyres are treated separately from both used tyres and new tyres.(Under the Harmonized System nomenclature, retreaded tyres are classified under either HS sub-headings 4012.11, 4012.12, 4012.13, or 4012.19, while used tyres are classified under the HS sub-heading 4012.20 and new tyres under HS heading 4011.)

In the dispute, Brazil did not disagree that the trade restrictions appeared inconsistent with its obligations under the General Agreement on Tariffs and Trade (GATT). Instead, Brazil sought to justify these trade measures on environmental, fire hazard, and health grounds. Specifically, Brazil argued that the measures were necessary to protect human health and the environment because accumulation of waste tyres creates breeding grounds for mosquitoes that spread malaria and dengue fever, and also pose threats for tyre fires and toxic leaching. Brazilargued that these measures should therefore be justified under GATT Article XX, which grants certain exemptions for Members to deviate from WTO obligations for environmental and health reasons.

The Panel acknowledged the environmental and health risks associated with retreaded tyres but concluded that they were inconsistent with WTO rules because the measures were applied in a discriminatory manner. Under the introductory paragraph, or “chapeau” of GATT Article XX, a trade measure should not be “applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination…or a disguised restriction on international trade.” In the current dispute, the Panel analyzed the injunctions issued by some local courts in Brazil that allowed Brazilian retreaders to import used tyres for a retreading purpose. Under these injunctions, a large amount of used tyres of foreign origin was entering Brazil, and thereby significantly undermining the achievement of Brazil’s declared objective of reducing environmental and health risks from waste tyres. In light of this large import of used tyres, the Panel concluded that Brazil’s import prohibition on retreated tyres from the EU was not justified under WTO exceptions.

Also at dispute was Brazil’s exemption of Mercosur countries from its trade restrictions. Brazil continued to import retreaded tyres from Mercosur countries while prohibiting it from elsewhere, and the EC argued that this discrimination also violated WTO rules. Brazil argued that this was done to obey the Mercosur arbitral tribunal decision from 2002 that had compelled Brazil to exclude Argentina, Paraguay, and Uruguay from the import restrictions. “the MERCOSUR exemption, to the extent that it results only in volumes of imports that do not significantly undermine the ability of the general import ban on retreaded tyres to fulfill its intended objective, does not result in the measure being applied in a manner that constitutes a disguised restriction on international trade.” However, the Panel decided to exercise judicial economy and did not engage in further analysis of this exemption since it had already found the import prohibition not justified earlier (see above).

This dispute has made an important contribution to the WTO’s trade and environment jurisprudence. First, the Panel reaffirmed the rights of each WTO Member to “determine the level of protection of health that [it] consider[s] appropriate in a given situation.” (The Panel reiterated the findings from the EC-Asbestos dispute. Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5 April 2001, DSR 2001:VII, 3243, para. 168.) Analyzing the link between the accumulation of waste tyres and the risks to health and the environment, the Panel concluded that Brazil’s declared policy objective behind the trade restrictive measures fell “within the range of policies covered by Article XX.” However, the Panel found the measures to be inconsistent with WTO rules because they were not applied in accordance with the Chapeau of Article XX. Second, the dispute was significant because the Panel analyzed the different stages in the life-cycle of retreaded tyres, starting with their production to disposal. This approach suggests that the Panel recognized the need for governments to effectively address the environmental and health impacts of products throughout their life-time, and not only at certain stages of their life cycle.

On September 3, the EC filed its notice of appeal with the WTO, indicating that it would challenge the Panel’s environment and health-related findings.


Marine Genetric Resources and UNCLOS
By Patrice Talla Takoukam

The eighth meeting of the UN Open-Ended Informal Consultative Process on Oceans and the Law of the Sea took place from 25-29 June 2007, in New York. The meeting focused on the scientific, technical, environmental, legal and socio-economic aspects of marine genetic resources (MGRs). Specifically, the participants discussed: (i) the need for marine scientific research on MGRs and sharing and dissemination of the results of such research; (ii) the benefits from commercial and other industrial applications of MGRs; (iii) the socio-economic implications of the use of MGRs; (iv) the relevance of incentives for the conservation and sustainable use of MGRs; (v) capacity-building needs of developing countries and transfer of technology; and (vi) the need for cooperation among the various relevant organizations.

One of the issues highlighted was the absence of an adequate legal regime to effectively protect and conserve MGRs. The principles laid down in the United Nations Convention on the Law of the Sea (UNCLOS) govern some activities related to MGRs, although they do not address the specific questions raised by the management of genetic resources. The other international agreements that are relevant also do not provide complete treatment of the issue. The Convention on Biological Diversity (CBD) aims to conserve biological diversity, and promote sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources. In addition, international instruments such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and treaties related to intellectual property rights also provide general legal framework on MGRs. However, many participants expressed their desire to have a legal framework that would provide more certainty before undertaking research in the marine environment. Participants also thought that a legal framework should be flexible enough to ensure continued knowledge gathering and scientific understanding, while supporting the sharing of benefits associated with MGRs.

The discussion then specifically focused on the legal regime under UNCLOS. With respect to the legal regime applicable to MGRs within national jurisdiction, UNCLOS provides that coastal States have sovereign rights to explore, exploit, conserve and manage natural resources within their national jurisdiction. Parts V and VI of UNCLOS specifically provide the framework for the conservation and management of marine living resources, which includes genetic resources. The participants expressed that governments should reduce unnecessary regulatory burden and transaction costs within their national jurisdiction so that MGR-related research would be more attractive. The participants also emphasized the importance of certainty in the national legal framework, especially concerning ownership, protection of investment, and benefit-sharing arrangements.

With regards to MGRs located in areas beyond national jurisdiction, there were different views expressed. Some participants thought that all MGRs are part of the "common heritage of mankind.” According to this view, activities related to MGRs beyond areas of national jurisdiction should be carried out for the benefit of mankind as a whole, and not be governed by private ownership or contractual arrangements. These participants also recalled the obligation under UNCLOS to cooperate in the conservation and management of marine resources. On the other hand, some participants expressed that MGRs in areas beyond national jurisdiction should be governed by customary international law. Still others considered that UNCLOS does not provide a clear comprehensive framework for the management of MGRs in areas beyond national jurisdiction. These participants proposed that a comprehensive and practical framework for exploring and exploiting all such MGRs should be developed by the international community within the framework of UNCLOS in order to protect and preserve these resources and to promote equitable access and benefit-sharing.

In the absence of a clear legal framework on MGRs in areas beyond national jurisdiction deriving from UNCLOS, treaties related to intellectual property rights (i.e. instruments in the World Intellectual Property Organization or the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights) have been playing an important role. These instruments grant patents on genetic resources collected from the seabed and high seas or on processes derived from such resources. However, the participants noted that the assertion of intellectual property rights over these MGRs may raise several important questions in light of the provisions of UNCLOS related to marine scientific research. These include: whether filing a patent application is considered as a claim to part of the marine environment or its resources; whether the rights conferred by a patent are likely to interfere with the right to carry out marine scientific research; and whether the degree of confidentiality required prior to the filing of patents in order to safeguard the novel character of an invention is compatible with the requirement for dissemination and publication of data and research results.

The participants also highlighted that there are on-going discussions on the possibility of creating an international patent arrangement as well as on-going discussions within WIPO and the WTO, among others, on the merits of an international system for disclosure of the source or origin of genetic materials. In addition, the participants discussed the opportunity for developing countries to derive benefits from intellectual property protection.
 

Short-bits

CALENDAR OF EVENTS

Date

Event

Place

October - November - December

Oct.15-16

OECD Global Forum on Trade

Paris, France

Oct.15-19

Fifth meeting of the Convention on Biological Diversity Ad Hoc Open-ended Working Group on Article 8(j) and Related Provisions

Montréal, Canada

Oct.15 -Nov. 2

91st Session, Human Rights Committee

Geneva, Switzerland

Oct.16-19

Third International Yellow River Forum on Sustainable Water Resources Management and Delta Ecosystem Maintenance

Dongying City,
Shandong Province, China

Oct.16-18

International Conference on the Future of Forests in Asia and the Pacific: Outlook for 2020

Chiang Mai, Thailand

Oct.19-22

2007 Annual Meeting for the World Bank Group and the IMF

Washington, DC, US

Oct.22-26

Fourth meeting of the Ad Hoc Open-ended Working Group of Legal and Technical Experts on Liability and Redress in the context of the Cartagena Protocol on Biosafety

Montreal, Canada

Oct.22-23

Legal Framework of Water Resources Management

Sydney, Australia

Oct.22-23

High-Level Dialogue on Financing for Development

New York, US

Oct.24-25

United Nations Environment Program Finance Initiative (UNEP FI) 2007 Global Roundtable - 'Awareness to Action': Sustainable finance for today's global markets

Rome, Italy

Oct. 27 - Nov. 2

Second session of the ITPGR (International Treaty on Plant Genetic Resources for Food and Agriculture) Governing Body

Melbourne, Australia

Nov.5 - 7

Conference on Sustainable Building South-East Asia

Kuala Lumpur,
Malaysia

Nov.6 - 7

Carbon Forum Asia

Singapore

November 12 - 16

32nd Global Environment Facility Council Meeting

Washington, DC, US

Nov.12-17

27th Session of the Intergovernmental Panel on Climate Change (IPCC)

Valencia, Spain

Nov.5 - 23

39th Session, UN Committee on Economic, Social and Cultural Rights

Geneva, Switzerland

Nov.19-23

3rd Meeting of the Persistent Organic Pollutants Review Committee (POPRC)

Geneva, Switzerland

Nov.26-30

53rd Meeting of the Montreal Protocol Multilateral Fund’s Executive Committee

Montreal, Canada

Nov.30-Dec.1

International Forestry and Environment Symposium

Kalutara,
Sri Lanka

Dec. 3 - 7

Annual General Meeting for the Consultative Group on International Agricultural Research (CGIAR)

Beijing, China

Dec. 3 -14

UN Climate Change Conference COP 13 and MOP 3

Bali, Indonesia

Dec.10-11

Global Sustainable Financial Products Summit

London, UK

 

 

 

 

 

 

 

 

 

  


The Environment and International Law Unit of the World Bank’s Legal Vice Presidency (LEGEN) provides advice to the Bank on all environmental and international legal and policy issues related to Bank-financed, implemented and/or supported projects.

For futher information, please email us: legalhelpdesk@worldbank.org


Last updated: 2011-09-05




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