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The Nature of Law Newsletter, April 2008

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

Issue 6, April 2008

Message from the Chief Counsel


This sixth issue of the LEGEN newsletter addresses a wide range of legal issues concerning environmental and international law. It showcases Maurizio Ragazzi's work on addressing the issue of Odious Debts, as well as two important recent U.S. Supreme Court decisions - one on riparian rights and the other on the right to receive consular services. In addition, Ms. Morita describes an important new initiative to address strategic sectoral assessment for mining in West Africa.

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 Concept of Odious Debts
By Maurizio Ragazzi

Bali Conference on Climate Change
By Charles Di Leva

U.S. Supreme Court Supports Delaware's Riparian Right to Block LNG Plant Proposed in New Jersey (March 31, 2008)
By Charles Di Leva

The Right to be Informed of the Vienna Convention Rights
By Salman M. A. Salman and Sachiko Morita

The West Africa Regional Mining Forum
By Sachiko Morita


The Concept of Odious Debts
By Maurizio Ragazzi

The call, by several NGOs, to cancel the sovereign debt of developing countries on the assumption that this debt is "odious" has encountered significant obstacles in the lack of a workable definition of the concept and the scarcity of international practice allowing the repudiation of debts on this controversial ground.

To inject some element of clarity into the current debate, the Norwegian authorities requested two discussion papers on the topic, one from UNCTAD and one from the Bank. The UNCTAD paper was prepared by an academic from Michigan Law School. The Bank paper was prepared by the Economic Policy and Debt Department, with considerable input from the Legal Department, as part of a work program on debt-related issues supported by a Norwegian trust fund. The paper is not meant to reflect the views of the management, Executive Directors or member states of the Bank, but merely to summarize the main aspects of the odious debts debate and suggest more promising avenues to address the concerns beneath this controversial concept. The current version of the Bank paper (which is still work in progress) is available.

Initially, the expression "odious debts" identified those debts that a state or a government had contracted with a view to attaining objectives that were prejudicial to the major interests of the successor state or government or of the local population: (a) "regime debts" (when a despotic regime contracts a debt, not for the needs and in the interest of the state, but to strengthen its own despotic regime), (b) "subjugation debts" (when the government contracts a debt to subjugate the population of part of its territory or to colonize it by members of the dominant nationality), and (c) "war debts" (when the government of a state contracts debts to wage war against another state). While, in the international practice, there have been instances in which war, subjugation or regime debts have been found not to be transferable to a successor state or government, the fact is that no customary international rule, general principle of law or codification treaty (treaties, customs and general principles being the three traditional sources of international law) allows, as a general rule, the repudiation of odious debts. And, in fact, new governments that have recently inherited large sovereign debts chose to restructure their debts with their creditors instead of repudiating those debts unilaterally on the ground that they were "odious". Nor is there any basis in international law for expanding the original concept of odious debts to the even more doubtful notion of "illegitimate debt" (namely debt that the borrower cannot be required to repay because the original loan or conditions attached to that loan infringed the law or public policy, or because they were unfair, improper, or otherwise objectionable) or for mechanisms to declare ex ante that certain regimes are "odious", with the consequence that the lenders extending financial assistance to such regimes would have no legitimate claim to repayment.

Though international law does not provide for the repudiation of debts on the ground of their being "odious", lenders and sovereign borrowers have been taking measures to ensure that loans are used for the benefit of the borrowers’ populations. This is why, after the legal analysis of the concept, the Bank paper discusses how good lending and borrowing practices (including fighting corruption, promoting good governance, respecting the laws of the borrowing country and meeting international standards, minimizing the risks of the inappropriate use of loans, helping developing countries to recover stolen assets, assisting them in buying back debt from commercial creditors, and providing debt relief to the poorest countries) are a more promising response to a real problem than invoking a concept that risks disrupting international financial flows to developing countries altogether.


Bali Conference on Climate Change
By Charles Di Leva

From December 3 through the 14th, governments, international agencies and civil society comprising some 13,000 people met in the hot climes of Nua Dusa, Bali, Indonesia at the 13th Meeting of the Conference of Parties of the United Nations Framework Convention on Climate Change (UNFCCC), and the 3rd Meeting of the Conference of the Parties (COP) serving as the Meeting of the Parties to the Kyoto Protocol to the UNFCCC.

The critical issue for this COP was whether governments would find a way to agree to put in place the process for negotiating the next stage of the global climate change regime, especially in light of the upcoming end in 2012 to the

Kyoto Protocol first greenhouse gas reduction period. It is largely agreed that unless governments can agree by the end of 2009, prospects will be gloomy for carrying out the measures considered necessary by the Fourth Assessment of the Intergovernmental Panel on Climate Change to reduce greenhouse gases at levels 25-40% below 1990 levels by 2020, i.e., at levels considered necessary to stabilize the levels of greenhouse gases in the atmosphere.

As the clock approached midnight on the last day of the Conference, a deal had yet to be reached. Tensions were extremely high, and as a symbol of their commitment to the importance of this issue, the U.N. Secretary General, Ban Ki-Moon and the President of Indonesia made unscheduled second appearances before the Parties to UNFCCC and Kyoto Protocol to urge consensus. These passionate requests, coupled with intense media coverage on the negotiating positions of certain governments, facilitated a consensus, though it took an extra day beyond the scheduled close to achieve. The end was reached when the U.S. decided it could accept the proposed final text to the key Bali decision, known now as the "Bali Action Plan".

Under that decision, the EU accepted a somewhat less specific delineation of the mitigation responsibilities that will be the focus of the future negotiations, and the G-77 and China agreed for the first time that developing countries could accept:

Nationally appropriate mitigation actions by developing country Parties in the context of sustainable development, supported and enabled by technology, financing and capacity-building, in a measurable, reportable and verifiable manner.

They did so noting their expectation for a major clean energy technology fund to be launched, perhaps under the auspices of the World Bank. The final critical piece for achieving consensus was for the U.S. to agree that there should be quantifiable mitigation obligations for developed countries.

For a full understanding of Bali, it is necessary to review the full text of the more than twenty decisions that took place at Bali. The decisions present the bulk of the work that has now been scheduled to be addressed in an intense accelerated two year negotiating process hopefully leading to a global agreement in Copenhagen by the end of 2009.

It is also important to highlight the role of the Bank and the impacts on us of Bali decisions. To indicate the importance of this meeting, it was the first time a World Bank President attended a UNFCCC COP. The President addressed the full plenary opening session of the COP, held high-level meetings on climate issues at a precedent-setting parallel meeting of Finance Ministers, and another one with Trade Ministers. The conjunction of meetings of finance and trade ministers demonstrates the "mainstreaming" of climate issues and support for some important major new climate related multi-donor trust funds in the range of several billion dollars. As well, the President launched the World Bank Forest Carbon Partnership Fund (preceded by a sit-down protest by Indigenous Peoples about the role of the World Bank). At the launch, President Zoellick presided over a session with a number of Ministers who pledged over $150 million for the inception of this fund. It is understood that these funds are meant to help jumpstart a major infusion of capital that will be necessary to achieve these objectives on a global scale. To begin, the fund will have two components - about $100 million will be available so developing countries with tropical or semi-tropical forests can set up domestic institutional and legal capacity to help monitor and protect their forests, and $200 million will be used to purchase carbon emission reductions in countries that can ensure carbon sequestration in their forests. In this light, President Zoellick noted the importance of correctly addressing the legal framework for the FCPF to be successfully implemented. For countries to be ready to implement FCPF activities, addressing their legal frameworks, including issues of land tenure and community rights will be key. Xueman Wang of LEGCF has been developing the transactional instruments necessary to launch the FCPF, and Jonathan Lindsay and Charles Di Leva of LEGEN have been reviewing domestic legal instruments that are key to enabling a country to be "ready" to implement the FCPF.

Bali also witnessed a coming together of most of the multilateral development banks around a study they had agreed to conduct on how they are all addressing clean energy and climate change. The Bali Conference also agreed on the launching of an Adaptation Fund to help eligible developing countries receive funds to adapt to climate change and invited the World Bank to serve as Trustee of that Fund, while inviting the Global Environment Facility to serve as secretariat. A range of details needs to be worked out on how this Fund will operate - but it is noteworthy that this "developing country owned Fund" has a majority of developing country members on its council and is funded through a 2% levy placed on carbon finance projects that are administered through the UNFCCC Clean Development Mechanism Executive Board.

In closing, while the decision does not make any commitments about when major greenhouse gas emitting countries will begin reductions and to what degree, it provides the first and critical building block for global cooperative "shared" action along the road to Copenhagen. Bali also further continues to cement the role of the World Bank as a key agent in generating and delivering the critical finance and developing country capacity for addressing the ominous threat of climate change.


 
U.S. Supreme Court Supports Delaware's Riparian Right to Block LNG Plant Proposed in New Jersey (March 31, 2008)
By Charles Di Leva

In one of the U.S. Supreme Court's more colorful decisions, citing a 1905 Compact between New Jersey and Delaware that wasratified by the U.S. Congress in 1907, the U.S. Supreme Court ruled in a 6-2 vote, that Delaware has authority to refuse to grant permission for an LNG plant and wharf to be constructed in New Jersey that would extend some 2,000 feet from New Jersey’s shore into territory the Court had previously determined belongs to Delaware. The LNG plant, storage tanks, and other structures would be maintained onshore in New Jersey.

Relying on an article of the 1905 Compact, "New Jersey urged that it had exclusive jurisdiction over all projects appurtenant to its shores, including wharves extending past the low-water mark on New Jersey’s side into Delaware territory. Delaware asserted regulatory authority, undiminished by Article VII, over structures located within its borders..." The Court noted that disputes between the States have been underway since the late 17th century. The Court also noted that "[r]eactions to [Delaware's] decision boiled over on both sides. New Jersey threatened to withdraw state pensionfunds from Delaware banks, and Delaware considered authorizing the National Guard to protect its border from encroachment. One New Jersey legislator looked into recommissioning the museum-piece battleship U. S. S. New Jersey, in the event that the vessel might be needed to repel an armed invasion by Delaware."

In the United States, and as a matter of common law, States have general police power rights to carry out activities on their shores, and in some cases to have structures that cross state boundary lines. Thus, in this case, New Jersey pointed out that the 1905 Compact conferred on "each State complete regulatory authority over the construction andoperation of riparian improvements on its shores, even if the improvements extend past the low-water mark." At the same time, the Court noted that "New Jersey acknowledges that Delaware "unquestionably can exercise its police power outshore of the low-water mark." (At 9).

An important federal law with bearing on the case is 1972 federal Coastal Zone Management Act (CZMA), 86 Stat. 1280, 16 U. S. C. §1451 et seq. This law required States to submit their coastal management programs to the Secretary of Commerce for review and approval. In return, States with approved programs would receive federal funding for coastal management. The Court noted that Delaware’s coastal management program, approved by the Secretary in 1979, specifically addressed LNG facilities and reported that "‘no site in Delaware [is] suitable for the location of any LNG import-export facility.’"

The Court concluded that construction of the terminal, especially considering the type of construction that would cross into Delaware was of extraordinary character, and that Delaware was within its rights to refuse to allow its construction.

In a rather blistering dissent, Justice Scalia (joined by Justice Alito), noted that since the earliest decisions under common law, "wharves could be built up to "the point of navigability," J. Gould, Treatise on the Law of Waters, including Riparian Rights §181, p. 352 (2d ed.1891), so long as they did not "interfere needlessly with the right of navigation" possessed by members of the general public upon navigable water". Justice Scalia noted that the majority failed to identify obstructions to navigation caused by the proposed terminal and wharf. He also indicated that the Court's reasoning seemed to be based solely on the "extraordinary character" of the type of use - not the use itself. The Justice then asks, "Could the determinative fact be that the wharf will be used to transport liquefied natural gas, which is dangerous? No again. The Court cites no support, and I am aware of none, for the proposition that the common law forbade a wharf owner to load or unload hazardous goods." In a final dose of disdain, perhaps for the environmental community, he concludes "After all, our environmentally sensitive Court concedes that if New Jersey had approved a wharf of equivalent dimensions, to accommodate tankers of equivalent size, carrying tofu and bean sprouts, Delaware could not have interfered."

Mr. Justice Scalia's position may have been in part due to what he notes as economic losses due to the State of New Jersey. He reports as follows: According to one study, construction activities on the LNG facility in this case would have created more than 1,300 new jobs, added $277 million to New Jersey’s gross state product, and produced $13 million in state and local tax revenues.


 
The Right to be Informed of the Vienna Convention Rights
By Salman M. A. Salman and Sachiko Morita

An interesting issue surrounding a legal obligation under an international treaty and state’s sovereignty was recently examined at the International Court of Justice and the US Supreme Court. Under the Vienna Convention on Consular Relations (1963), if a foreign national is arrested or committed to prison or to custody pending trial or is detained in any other manner, he has the right to request that the consulate of his country be informed of his arrest, custody or detention. He also has the right to be informed that he has such a right.

Jose Ernesto Medellin, a Mexican national who has lived in the United States for most of his life, was arrested in 1993 in connection with a rape and murder case in Texas. Texas law enforcement officials informed him of his Miranda rights but not of his right under the Vienna Convention. Medellin was ultimately convicted and sentenced to death. He first raised his Vienna Convention claim in his first application for state post-conviction relief. The state trial court in Texas held that the claim was procedurally defaulted because Medellin had failed to raise it at trial or on direct review. The trial court also rejected the Vienna Convention claim on the merits, finding that Medellin had failed to show that the non-notification of the Mexican authorities impacted the validity of his conviction or punishment. The Texas Court of Criminal Appeals affirmed. Medellin then filed a habeas petition in the Federal District Court. The District Court denied relief, affirming the decision of the Texas Court.

In 2003, Mexico instituted proceedings against the United States with the International Court of Justice (ICJ) in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America). Mexico argued that the United States violated its international legal obligation to Mexico under the Vienna Convention by failing to inform 52 Mexican nationals (including Medellin) on death row of their Vienna Convention rights. The Court concluded that with respect to all except for one of the 52 individuals, the United States did indeed violate its obligation under the Convention, and found that these individuals were entitled to a review and reconsideration of their US state-court convictions and sentences. The ICJ indicated that such review was required without regard to state procedural default rules.

President Bush then issued a Memorandum to the US Attorney General stating that "the United States will discharge its international obligations" under Avena "by having State courts give effect to the decision."

Following the Avena decision and the President’s Memorandum, the US Supreme Court, in October 2007, considered two issues in Medellin v. Texas: (1) whether the ICJ’s judgment in Avena is directly enforceable as domestic law in a state court in the United States, and (2) whether the President’s Memorandum independently requires the states to provide review and reconsideration of the claims of the 51 Mexican nationals named in Avena without regard to state procedural default rules.

On March 25, 2008, the Supreme Court delivered its decision. With respect to the first question, the Court found that while the Avena judgment "creates an international law obligation on the part of the United States, it does not, of its own force, constitute binding federal law that pre-empts state [laws]." With respect to the President’s Memorandum, the Court concluded that the Memorandum cannot independently require the states to provide review and reconsideration of the claims of the 51 Mexican nationals named in Avena without regard to state procedural default rules. The Court stated that "the President has an array of political and diplomatic means available to enforce international obligation, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress."

No doubt, the Supreme Court in Medellin v. Texas recognized the importance of respecting and enforcing obligations under international treaties. However, for such obligations, or for a decision by an international tribunal to be enforced, Congress needs to transform those international obligations or decisions into a domestic law.


 
The West Africa Regional Mining Forum
By Sachiko Morita

The West Africa Regional Mining Forum was held in Conakry, Guinea from February 11-12, 2008. The Forum, convened by the African Development Bank, Agence Française de Développement, ECOWAS (Economic Community of West African States), WAEMU (West African Economic and Monetary Union), and the World Bank, was organized as a first step toward formalizing a regional approach to mineral sector development in West Africa. It was attended by more than 200 participants from mineral resource abundant countries in West and Central Africa (These countries are: Burkina Faso, Central African Republic, Cote d’Ivoire, Guinea, Ghana, Liberia, Mali, Niger, Nigeria, Senegal, Togo, and Sierra Leone.), representing governments (mostly Ministries of Finance or Mines), regional institutions, donor and development agencies, private sector, and civil society organizations.

During the Forum, it was highlighted that West Africa has severe infrastructure and capacity constraints that thwart the realization of its large mining potentials, and that regional integration, harmonization, and cooperation are critical for leveraging resources for the region’s mining growth. The importance of fostering mineral-sector driven sub-regional industrial and service sector clusters was also emphasized. Participants also addressed the issues surrounding equitable benefit-sharing from mining activities. It was suggested that where appropriate, a tri-partite relationship (government, mining company, and relevant stakeholders) be established to ensure sustainable and equitable mining growth.

As a step toward developing a regional approach to sustainable mining growth in West Africa, the World Bank is going to conduct a strategic environmental and social assessment (West Africa Minerals Sector Strategic Assessment, or WAMSSA). The object of the WAMSSA is to identify the policy, institutional, and regulatory adjustments at the regional level that are required for optimizing the mineral sector’s growth and sustainable development in West Africa. The study, in turn, will inform the preparation of the West Africa Regional Mineral Sector Initiative (WARMSI), which calls for regional coordination and cooperation to build-up key cross-sectoral linkages to manage transboundary environmental, social and geopolitical risks associated with mining, and to support mineral sector’s contribution to sustainable development in the region. Three countries from the Manu River Basin countries (Guinea, Sierra Leone, and Liberia) have been selected as pilot countries for WARMSI and WAMSSA. It is proposed that the WAMSSA will be completed in early 2009.

Short-bits


CALENDAR OF EVENTS

Date

Event

Place

April - May - June, 2008

April
5-11

8th International Conference of the International Network for Environmental Compliance and Enforcement (INECE)

Cape Town, South Africa

April
7 - 11

41st Session of the UN Commission on Population and Development

UN headquarters, New York, USA

April
7 - 11

Fourth Global Conference on Oceans, Coasts, and Islands

Hanoi, Vietnam

April
7 - 12

The International Assessment of Agricultural Science and Technology for Development (IAASTD) Intergovernmental Plenary

Johannesburg, South Africa

April
8 - 11

Forest Governance and Decentralization in Africa

Durban, South Africa
April
9 - 10

28th Session of the Intergovernmental Panel on Climate Change (IPCC 28)

Budapest, Hungary
April 14

Spring Meeting of UN Economic and Social Council (ECOSOC) with Bretton Woods Institutions, World Trade Organization and UN Conference on Trade and Development

UN headquarters, New York, USA
April 1
5 - 18
17th meeting of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Plants CommitteeGeneva, Switzerland
April
16 - 18
The International Renewable Energy Conference in AfricaDakar, Senegal
April
17 - 18
Global Marine Renewable Energy ConferenceNew York, United States of America
April
20 - 25
Twelfth Session of the UN Conference on Trade and Development (UNCTAD XII)Accra, Ghana
April
21 - 24
23rd meeting of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Animals CommitteeGeneva, Switzerland
April
21 - 25
GEF Council Meeting and NGO ConsultationWashington DC, United States of America
April 21 - May 2Seventh Session of the UN Permanent Forum on Indigenous IssuesUN headquarters, New York, USA
April
23 - 25
Organization for Economic Cooperation and Development-UN Environment Programme Conference on Resource Efficiency, Paris, France
April 28 - May 2Second Meeting of the Ad Hoc Open-ended Informal Working Group on Marine Biodiversity beyond National JurisdictionUN headquarters, New York, US
April 30 - May 2,International Tropical Timber Organization Expert Meeting addressing Climate Change through Sustainable Forest ManagementYokohama, Japan
May 3- 7Sixth European Ramsar Regional MeetingStockholm, Sweden
May
5 -16
Sixteenth Session of the Commission on Sustainable DevelopmentUN headquarters, New York, USA
May 5- 7The Athens Summit on Climate Change and Energy SecurityAthens, Greece
May 7-9

The Amsterdam Global Conference on Sustainability and Transparency

Amsterdam, Netherlands
May 10 - 13

International GEF Workshop on Evaluating Climate Change and Development: Results, Methods and Capacities

Alexandria, Egypt
May
10 - 11
UN Institute for Training and Research (UNITAR)-Yale Conference on Environmental Governance and DemocracyYale University, New Haven, Connecticut, USA
May
12 - 16
4th meeting of the Conference of the Parties serving as the meeting of the Parties to the Cartagena Protocol on Biosafety (COP-MOP 4) Bonn, Germany
May
19 - 30
9th Meeting of the Conference of the Parties to the Convention on Biological Diversity (COP-9)Bonn, Germany
May
24 - 26
G8 Environment Ministers’ Meeting Kobe, Japan
May
25 - 27
3rd International Conference on Managing Shared Aquifer Resources in AfricaTripoli, Libya
May
26 - 30
11th Session of the Commission on Science and Technology for Development Geneva, Switzerland
May
28-30
4th Tokyo International Conference on African Development (TICAD IV) Yokohama, Japan
June
2 - 6
37th meeting of the Ramsar Standing CommitteeGland, Switzerland
June
2 - 5
International Tropical Timber Organization (ITTO) Inter-sessional Meeting Accra, Ghana
June
2 - 13
28th Sessions of the UN Framework Convention on Climate Change (UNFCCC) Subsidiary Bodies, 2008 | Bonn, Germany
June
3 - 5
Fifth African Roundtable on Sustainable Consumption and Production (ARSCP-5) Nairobi, Kenya
June
3 - 5
High-Level Conference on World Food Security and the Challenges of Climate Change and Bio-energy Rome, Italy
June 14 -Sept.14Expo Zaragoza 2008: Water and Sustainable DevelopmentZaragoza, Spain
June
22 - 25

Asian Wetland Symposium 2008

Hanoi, Vietnam
June
23 - 27
60th Annual Meeting of the International Whaling Commission (IWC-60)Santiago, Chile
June
23-25
Bern Convention (Convention on the Conservation of European Wildlife and Natural Habitats) Group of Experts on the Conservation of Invertebrates Norway
June
23 - 27
9th Meeting of the Conference of the Parties (COP) to the Basel ConventionBali, Indonesia
June
23 - 27
9th Meeting of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the SeaUN headquarters, New York, USA
June
24 - 26

7th World Wind Energy Conference and Exhibition

Kingston, Ontario, Canada

 

 

 

 

 

 

 

 

 

  


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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