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The Nature of Law Newsletter, March 2009

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

Issue 8, March 2009

Message from the Chief Counsel


This eighth issue of LEGEN's newsletter reports on the following: U.S. District Court settlement in which the United States Exim-Bank and OPIC agreed to take certain action related to climate change; the United Nations General Assembly Adopting a Resolution on Transboundary Aquifers; the new Optional Protocol to the International Covenant on Economic, Social and Cultural Rights; Belize and Guatemala Conclude an Agreement To Submit a Long-Standing Territorial Dispute to the ICJ: and the founding of IRENA - New International Renewable Energy Agency.

As always, if you have questions on any of these or related matters, please contact us at LEGEN.

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

Viewpoint


Global Warming Litigation Impels U.S. Financing Agencies to Acknowledge Climate Change
By Charles Di Leva

United Nations General Assembly Adopts a Resolution on Transboundary Aquifers
By Salman M. A. Salman

The New Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
By Siobhán McInerney-Lankford and Sachiko Morita

Belize and Guatemala Conclude an Agreement to Submit a Long-Standing Territorial Dispute to the International Court of Justice
By Salman M. A. Salman and Antón Leis García

IRENA - New International Renewable Energy Agency Founded
By Hanneke Van Tilburg



Global Warming Litigation Impels U.S. Financing Agencies to Acknowledge Climate Change
By Charles Di Leva

Greenpeace and others have reached a settlement with the United States Export-Import Bank of the United States and the Overseas Private Investment Corporation concerning how these financial institutions treat applications for financing of projects that emit more than 100,000 tons per year of carbon dioxide or its equivalent. The settlement resolves the matter of Friends of the Earth, Inc, Greenpeace, Inc, City of Boulder, Colorado, et al, v. Spinelli (Civ. No. 02-4106 N.D. Cal.)

The settlement requirements pertaining to the two institutions are almost identical. The settlement with OPIC expressly refers to the World Bank Group. Pursuant to the settlement, OPIC agrees that any project that emits more than 100,000 tons per year of CO2 equivalent will be treated as a category A project under OPIC's Environmental Handbook and will take into account the degree to which the project emits greenhouse gas emissions. In accordance with the Handbook, the EIA will discuss whether the project has significant impacts on the environment and will include consideration of other matters that are common to EIAs. The 100,000 ton amount appears to have been drawn from amounts the parties to the lawsuit viewed as being reported by the World Bank Group, because the Settlement Agreement notes that, if the World Bank Group reduces its threshold to a lower level, OPIC shall, consistent with past practices, "likewise consider reducing its threshold by at least such amount."

The principle that greenhouse gas emissions levels should be factored into project impact assessment may be given support by current developments at the U.S. Environmental Protection Agency. The Agency has recently granted a petition to reconsider the former Administrator’s interpretative memorandum of December 2008 regarding the scope of the Clean Air Act. While, at this stage, any guess on the final outcome of this reconsideration is unwarranted, one possibility is that the Agency may conclude that CO2 is an air pollutant under the Clean Air Act and that, as such, it should be regulated under the federal air permit program.

Pursuant to the settlement, OPIC will be required to provide annual reports on emissions about 100,000 tons and establish a revolving fund of $250 million for renewable energy projects using preferential terms. In addition, OPIC agrees to put in place a policy to reduce greenhouse gas emissions by 20 percent over the next 10 years for all projects that emit more than 100,000 tons per year. OPIC agrees to limit new investments in projects associated with greenhouse gas emissions to meet this new policy. OPIC also agrees to propose new energy efficiency requirements in the next version of the OPIC's Environmental Handbook. These revisions include encouraging OPIC applicants to review their energy use at all facilities and maximize opportunities for efficiency and renewables. Demand-side management measures will also have to be incorporated, and some projects will have to note that process modifications may be necessary to achieve the obligations of the policy.

Similar provisions will apply to Ex-Im Bank. It is noted that Ex-Im Bank will need to take a leadership role in promoting measures to address climate change, especially within the OECD and among other export credit agencies, while recognizing that it could only do so with the concurrence and under the authority of US delegates to the OECD and the President's plenary authority over foreign policy. This will include the ability to seek to ensure a "level playing field" in terms of competition.

The cause of action set forth by the plaintiffs against OPIC and Ex-Im Bank stated that the two agencies had failed to comply with their obligations under the US National Environmental Policy Act (NEPA) and its requirements for an EIA of major federal actions. The agencies had maintained that, because they financed activities outside the US, NEPA did not apply or that the type of activities they finance do not meet the "major federal action" requirement that triggers NEPA. It is important to note that the case did not address whether NEPA mandates that there must be review of overseas projects that result in global warming gases being produced. However, the some of the arguments put forward by the plaintiffs seem to have overcome motions to dimiss on behalf of OPIC and Ex-Im Bank. Thus, the Court appears to have accepted the plaintiiffs' claims that they had standing to sue because of their allegations that the projects financed abroad by OPIC and Ex-Im Bank could result in economic and other damage, and their claim that the use of federal funds to finance projects abroad was sufficient to bring in NEPA. In addition, the settlement resulted in the environmental groups receiving attorneys fees and costs in the amount of $100,000 from each of the defendants. The award is pursuant to The Equal Access to Justice Act. This statute allows private parties to recover fees when they sue the government. It was recently amended to allow recovery of fees even if the party that brought the suit did not "prevail" in the classic sense of having won a formal final court decision.


 
United Nations General Assembly Adopts a Resolution on Transboundary Aquifers
By Salman M. A. Salman

Issue 7 of Nature of Law (September 2008) included an article entitled “The International Law Commission Adopts Draft Articles on the Law of Transboundary Aquifers.” Adoption of the Draft Articles by the ILC took place on August 5, 2008, following a lengthy process that spanned over a period of six years. In 2002 the UNGA took note of the decision of the ILC to proceed with its work on a number of topics, including “Shared Natural Resources.” The ILC agreed that the topic covers groundwaters, oil and natural gas, but decided to adopt a step – by - step approach, and to focus on the consideration of transboundary groundwaters as a follow-up to the ILC previous work on the Watercourses Convention. As a result, it also decided to embark first on the codification of the law of transboundary aquifers independently from any future work on oil and natural gas.

The ILC Special Rapporteur issued five reports between 2003 and 2008 on transboundary aquifers. In 2006, the ILC adopted, on first reading, the Draft Articles on the Law of Transboundary Aquifers, consisting of 19 articles, based largely on the UN Watercourses Convention. The Draft Articles were transmitted to Governments for comments and observations, with a request that such comments be submitted by January 1, 2008. The ILC received written and oral comments from 47 states which were generally favorable and supportive of the ILC work. Those comments were considered during the second reading, and the revised Draft Articles were finally adopted by the ILC on August 5, 2008.

The Special Rapporteur noted that the views of governments varied from supporting a legally binding convention to a non-binding document. Accordingly, he decided to recommend that the General Assembly should: (a) take note of the draft articles on the law of transboundary aquifers in a resolution, and annex the draft articles to the resolution; (b) recommend that States make appropriate arrangements bilaterally or regionally with the States concerned for proper management of their transboundary aquifers on the basis of the principles enunciated in these articles; and (c) also consider, at a later stage, and in view of the importance of the topic, the possibility of convening a negotiating conference to examine the draft articles with a view to concluding a convention.

The UNGA during its meeting on December 11, 2008, welcomed the conclusion of the work of the ILC on the law of transboundary aquifers and its adoption of the Articles and a detailed commentary on the subject. It expressed appreciation to the ILC for its continuing contribution to the codification and progressive development of international law, and to the International Hydrological Programme of the UNESCO and to other relevant organizations for the valuable scientific and technical assistance rendered to the ILC. Furthermore, the UNGA took note of the Articles on the Law of Transboundary Aquifers, presented by the ILC, and commended them to the attention of Governments without prejudice to the question of their future adoption or other appropriate action, and encouraged the States concerned to make appropriate bilateral or regional arrangements for the proper management of their transboundary aquifers, taking into account the provisions of those Articles. The Resolution indicated that the UNGA will include in the provisional agenda of its sixty-sixth session an item entitled “the law of transboundary aquifers” with a view to examining, inter alia, the question of the form that might be given to the Articles.

The adoption of the resolution taking note of the Articles on the Law of Transboundary Aquifers by the UNGA completed the work on the topic that commenced in 2002 and lasted for six years. No doubt this is a landmark step in the codification and progressive development of the law of the international watercourses, covering a major gap in the Watercourses Convention, and extending application of the basic principles on international water law to all types of groundwater.


The New Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
By Siobhán McInerney-Lankford and Sachiko Morita

Introduction

On December 10, 2008, the UN General Assembly adopted the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, coinciding with the 60th anniversary of the Universal Declaration on Human Rights. The Protocol gives the Committee on Economic, Social and Cultural Rights (the Committee) the competence to receive and consider communications of individuals or groups concerning non-compliance with the Covenant. It will be open for signature at a ceremony in September 2009 and will enter into force when ratified by 10 States.

Background

The International Covenant on Economic, Social and Cultural Rights was adopted in 1966, and it came into force on January 3, 1976. It recognizes economic, social, and cultural rights, including the rights to health, education, and an adequate standard of living. It obliges State Parties to submit regular reports to the Committee on the implementation of the rights under the Covenant, but provided no petition mechanism for those rights.

In 1992, the Committee formally proposed that an Optional Protocol be drafted and adopted, with the view to establishing a complaint mechanism similar to those established under other UN human rights treaties, such as the 1966 International Covenant on Civil and Political Rights. In 1997, a draft Optional Protocol was presented for comment to governments, intergovernmental organizations and NGOs. Between 2001 and 2006, an independent expert was appointed and several open-ended working group sessions were held to discuss and negotiate the text of the Optional Protocol. The process took two more years before the Protocol was adopted by the General Assembly in December 2008.

How does it work?

Since it is an “optional” instrument, State Parties to the Covenant are not obliged to become party to it, but once ratified, it is a binding international treaty like the Covenant itself. Moreover, only individuals under the jurisdiction of a State Party can submit communications to the Committee claiming to be victims of a violation by the State Party of any economic, social and cultural right set forth in the Covenant. As with existing international complaint mechanisms, individuals must first exhaust domestic remedies before bringing their communication before the Committee. Once the communication is brought before the Committee, and it is declared admissible, the Committee brings the communication to the attention of the State Party concerned allowing it to submit written explanations or statements clarifying the matter. The Committee examines communications received and then transmits its views and recommendations to the parties concerned. The State Party shall give due consideration to the views of the Committee and shall submit a written response within six months.

The Protocol also provides for an inquiry mechanism under which the Committee can receive information indicating “grave or systematic violations” by a State Party of any of the rights recognized in the Covenant. It may conduct an inquiry and after examining the findings of such an inquiry, transmit these findings to the State Party concerned with any comments and recommendations. The State Party must, however, declare that it recognizes the competence of the Committee to conduct such inquiries, and a State Party can withdraw this declaration at any time by notification to the Secretary-General of the United Nations.

Moreover, the Protocol empowers the Committee, with the consent of the State Party concerned, to transmit its view or recommendations to UN Specialized Agencies, funds and programmes, concerning communications and inquiries indicating a need for technical advice or assistance. Such communications and inquiries may also relate to the advisability of international measures likely to contribute to assisting State Parties in achieving progress in implementation of the rights recognized in the Covenant.

Why is this Protocol significant?

The Protocol will offer recourse at the international level for non-compliance with obligations related to economic, social and cultural rights. The Protocol is significant also in confirming the equal standing of economic, social and cultural rights with other human rights, particularly civil and political rights. It will likewise enhance the status of both the Committee and the Covenant in respect of other UN human rights bodies and instruments.


 
Belize and Guatemala Conclude an Agreement to Submit a Long-Standing Territorial Dispute to the International Court of Justice
By Salman M. A. Salman and Antón Leis García

On December 8, 2008, the Foreign Ministers of Belize and Guatemala signed  Special Agreement to refer Guatemala’s age-old claim over the territory of Belize to the International Court of Justice (ICJ) (The Belizean government also published an “Explanatory Note” on the Special Agreement). The signing of the Special Agreement is the latest in a series of attempts to resolve a dispute that has threatened at times the very existence of Belize as an independent state.

The Dispute

The territorial dispute between Belize and Guatemala is well documented (See, e.g., D. Downing, An Atlas of Territorial and Border Disputes, (London, 1980), at pp. 92-95). The territory known as British Honduras (or, since 1973, Belize) was formally under Spanish control since the conquest of Central America. However, a British logwood settlement was established in the 18th century to exploit the territories’ vast forests resources. Two treaties between Britain and Spain, dated 1783 and 1786, defined the territory where the commercial activity was to take place, while reaffirming Spanish sovereignty over such areas. This territory covered the northern half of today’s Belize. In the course of the 19th century, the British presence expanded southwards and reached the current border between both countries, at the Sarstoon River.

In 1840 the Republic of Guatemala became an independent state after the dissolution of the Central American Federation (which had in turn been formed right after the end of the Spanish rule in 1821). Soon after its independence, Guatemala claimed British Honduras as part of its territory. In 1859 Britain and the Republic of Guatemala signed a convention defining the boundaries of British Honduras. In addition, the 1859 Convention included a provision committing the British to build a road between Guatemala City and the Caribbean coast of Belize. The road in question was never built. This led the successive Guatemalan governments to take the view that the 1859 Convention did not recognize any sovereignty for Britain over the territory but rather ceded the territory to Britain. The British government’s failure to build the road would have, in their view, rendered such cession null and void and, as a result, the territory should be reintegrated into Guatemala.

Following this position, Guatemala claimed for many years the entire territory of Belize. During the British colonial era, the conflict passed through various crises as well as periods of relative calm, together with several unsuccessful attempts to reach a compromise (including a proposal to establish a federation between both territories). However, the conflict persisted and even had the effect of delaying Belize’s independence, which only happened in 1981. Belize was recognized by Guatemala in 1991, ten years after its independence. Belize’s independence prompted Guatemala to make some changes to its position, and at least since 1999 appears to have limited its claim to the land and neighboring islands south of the Sibun River, which amounts to approximately 12,000 square kilometers, roughly half of the Belizean territory.

The Special Agreement and the Way Forward

The most recent diplomatic effort to bring the dispute to an end has been taking place under the auspices of the Organization of American States (OAS) since March of 2000. Various rounds of negotiations and conciliation efforts have been going on, and finally the parties signed an “Agreement on a Framework of Negotiations and Confidence Building Measures” on September 7, 2005. The 2005 Agreement committed both countries to put in place a number of measures aimed at improving cooperation between them on matters of mutual interest under a spirit of good-neighborliness. It also committed both parties to launch a last round of negotiations, which, if failed, would lead the Secretary General of the OAS to recommend the submission of the dispute to the ICJ or to an “international court of arbitration” (See, Article 5 of the Agreement on a Framework for Negotiations and Confidence Building Measures Between Belize and Guatemala). This is precisely what happened, and in November 19, 2007, Mr. Insulza, Secretary General of the OAS, called on the parties to refer the case to the ICJ. More than a year later, the two parties signed the Special Agreement.

The Special Agreement describes the procedures and the timeline agreed upon by Belize and Guatemala to submit the dispute to the ICJ. However, the Special Agreement does not define the scope of Guatemala’s territorial claim, and instead refers to “any and all legal claims of Guatemala against Belize to land and insular territories and to any maritime areas pertaining to these territories” (Article 2). Article 5 commits the Parties to accept the decision of the ICJ as final and binding, and to implement it in full and in good faith. Furthermore, the Parties agree that, within three months of the date of the Judgment of the ICJ, they will agree on the composition and terms of reference of a Bi-national Commission to carry out the demarcation of their boundaries in accordance with the decision of the ICJ. In case the parties cannot reach agreement regarding the make up of the Commission, the Secretary General of the OAS will appoint its members.

However, it is worth noting that the Special Agreement needs to be ratified through referenda on both sides of the borders (See, Belize’s Referendum Act No. 2 of 1999, Section 2(2) and Guatemala’s Constitution, Section 19 of Title VIII). According to Article 7 of the Special Agreement, the referenda are to take place simultaneously in both countries on a date to be agreed between the parties. Article 7 also provides the exact wording of the question to be presented to the citizens of both countries. The entire process of ratification is expected to last for about a year. Assuming a positive result in the two popular votes, the Special Agreement will need to be notified to the Registrar of the ICJ within one month from the referenda. Guatemala will then have twelve months to submit a Memorial presenting its case to the ICJ.

It will not be until then that the precise territorial scope and main legal arguments of Guatemala’s claim will be known. However, the main arguments on the Belizean side have been discussed in an ex parte legal opinion prepared by a group of reputed scholars and practitioners, which the Belizean government has made public  (See, E. Lauterpacht, S. Schwebel, S. Rosenne & F. Orrego Vicuña, Legal Opinion on Guatemala’s Territorial Claim to Belize, November 2001). In a nutshell, the legal opinion interprets the document at the origin of the entire dispute, the 1859 Convention, as a binding treaty describing the boundaries between Belize and Guatemala, and points to a 1931 Exchange of Notes between the parties as further evidence that the 1859 Convention was in force at the time, and that it had indeed determined the border between both countries. The legal opinion also relies on the British and Belizean possession of the territory under dispute, and on the absence of any Guatemalan possession of Belize as evidence of a process of historical consolidation that would have secured title first to Britain and then to independent Belize. Finally, the last line of reasoning developed in the legal opinion deals with the right of self-determination of the people of Belize, manifested in the attainment of independence in 1981 and allegedly supported by the treatment of the Belizean case in the United Nations since 1975 (including a series of General Assembly Resolutions), and its admittance to the UN.

In sum, and assuming that the referenda in both countries pave the way to the ICJ, the Court will have the opportunity to resolve a complex and rather unusual territorial dispute that has been lingering for more than 150 years.


 
IRENA - New International Renewable Energy Agency Founded
By Hanneke Van Tilburg

After intensive preparations involving more than 60 countries, the International Renewable Energy Agency (IRENA) was founded on 26 January 2009 in Bonn, when 75 countries signed a treaty providing for the Statute of IRENA (the Statute). Signatories include France, Germany, the Netherlands, Spain, Denmark, Mongolia, Vietnam, Chile, Paraguay, Mali, Egypt, Ethiopia, Senegal, Bahrein and United Arab Emirates. A complete list of signatories can be found at IRENA website. The Statute will enter info force upon ratification by 25 signatories.

IRENA will be the first intergovernmental organization to solely concentrate on renewable energy and will offer support to industrialized and developing countries alike.

In the 1950s, the desire to exploit the opportunities offered by a new energy source led to the foundation of the International Atomic Energy Agency (IAEA). In the 1970s, the fear of shortages arising in fossil fuel supply prompted the foundation of another organization – the International Energy Agency (IEA). The aim of the new Agency is to promote the widespread and increased adoption and sustainable use of renewable energy worldwide. According to the Statute, the term “Renewable Energy” means “all forms of energy produced from renewable sources in a sustainable manner, which include, inter alia: 1. bioenergy; 2. geothermal energy; 3. hydropower; 4. ocean energy, including inter alia tidal, wave and ocean thermal energy; 5. solar energy; and 6. wind energy.”

The main work of IRENA will be to advise its members on creating the right frameworks, building capacity, and improving financing and the transfer of technology and know-how for renewable energies. According to the Statute, IRENA will seek to cooperate closely with other international organizations and institutions active in the field of renewable energy.

IRENA is set up as an international governmental organization, outside the UN framework, although the possibility of integration in the UN system in the long term is not excluded, and the Statute foresees the possibility of an agreement with the UN. IRENA’s membership is open to all interested UN member states. Though IRENA will be an international governmental organization, it is expected to also engage industry, academia, NGOs and civil society. IRENA’s Statute foresees that international organizations may become so-called cooperation partners.

The idea to promote renewable energy by establishing an international organization was originally presented by EUROSOLAR and the World Council for Renewable Energy and has been extensively discussed for several years at various international level forums. Strongly supported by Spain and Denmark, the German government organized two international meetings in 2008 with the goal of enhancing the preparation process for the founding of IRENA.

In June 2009, those countries that have signed the treaty will decide on the preliminary seat of the Secretariat and the agency’s preliminary Director-General. The Director-General will then begin to build up the agency without delay, to ensure its visibility on the international level. After the entry into force of IRENA’s Statute the organs of IRENA will begin to operate officially. During the first meeting of the Assembly, the Council will be elected, a formal decision on the work programme, on the budget and on the seat of the agency will be taken and the Director-General formally appointed.

More information can be found at www.irena.org

 

Publications


International Environmental Law, the World Bank, and International Financial Institutions

Charles di Leva published a book chapter entitled “International Environmental Law, the World Bank, and International Financial Institutions” in a book co-edited by Daniel D. Bradlow and David B. Hunter, International Financial Institutions and International Law (Kluwer Law International, 2010). The chapter reviews how International Financial Institutions (IFIs) have dealt with their international environmental law obligations. The chapter focuses on the World Bank’s environmental policies and activities as well as those of other IFIs and discusses how they deal with some of international environmental law issues that arise from their activities. Noting the “exquisite ambiguity” of the constitutive Articles of Agreement of all IFIs, the chapter discusses the challenges that IFIs face in complying with all applicable international legal requirements. It successfully places IFIs’ activities, policies and challenges within the broader context of international law and international environmental law. Overall, the chapter underscores the important role the Bank, as well as other IFIs are playing with regard to environmental affairs at both a global level and in the countries that benefit from their financial assistance.

 

 

 

 

 

 

 

 

 

  


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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