Volume 16: Issue 2 (2020)
Volume 16 Introductory Material
Kimia Towfigh & Arsalan Ahmed
Here, readers can find useful information concerning the McGill Journal of Sustainable Development Law, including its Editorial, Management, and Advisory Boards. The MJSDL is a student-run, peer-reviewed, bi-annual academic journal mandated to provide a forum for critical analysis on the intersecting themes of economics, society, human rights, and the environment, and the resulting implications for sustainable development law. The MJSDL is affiliated with the Faculty of Law at McGill University and is fully bilingual. Our 2020-2021 Editor in Chief, Arsalan Ahmed, provides an editorial note introducing this volume's prompt, "Climate Change and Human Rights".
Vito De Lucia
The third substantive session of the intergovernmental conference (IGC–3) sought to adopt a new implementing agreement under the United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. IGC–3 concluded in August 2019, but the progress made has not met expectations, hopes and necessities, especially given the fact that the process was supposed to end at the next session of the IGC in March 2020. At the same time, however, IGC–3 has also marked an undeniable shift in focus. One central point of contention is whether marine genetic resources should be encompassed by the regime of the common heritage of (hu)mankind. This paper will offer a critical assessment on the state of play in relation to this central point of divergence in the negotiations- one that has proved difficult since the start of the process on the conservation of marine biodiversity in areas beyond national jurisdiction (BBNJ).
Guillaume Lebrun-Petel
This article discusses the consequences that the regional integration of the Economic Community of West African States (ECOWAS) has on the rights of the child in West Africa. This piece begins with a historical overview of the first 45 years of ECOWAS and presents the organization’s current and past objectives. It then discusses the international framework governing the rights of the child, and how these obligations are translated into ECOWAS development policies. To illustrate the impact of this economic integration process on the rights of the child, a case study of two of these rights – the right to integrity and the right to participation – is then conducted. In its conclusion, this article argues that the true development of West Africa is conditional on a serious consideration of the rights and situation of the children in the area.
Sander van ‘t Foort, Tineke Lambooy, and Aikaterini Argyrou
The Dutch National Contact Point (NCP) is currently in the international community referred to as the ‘gold standard’ of NCPs handling disputes between companies and victims of corporate behaviour, or NGOs or unions representing them. These conflicts are resolved within the framework of the OECD Guidelines for Multinational Enterprises (‘OECD Guidelines’). The Dutch NCP is generally acclaimed for its nonpartisan composition comprising only independent members and for an active performance and forward-looking approach in its decision-making in the cases.
This article presents an analysis of the effectiveness of the Dutch NCP in the period 2012–2019. The effectiveness is examined by applying the eight criteria established in the Procedural Guidance, which document applies to all specific instances accepted and considered on the basis of the revised 2011 OECD Guidelines (alongside the key effectiveness criterion). The study employs multiple methods including desk-research, doctrinal research, the collection of empirical data through interviews with NCP members and specific instance participants and a survey with relevant stakeholders. The findings are put in perspective by examining other high-performing NCPs in Europe, i.e. the UK, German, Danish and Norwegian NCPs.
Anna Romaniszyn
In the past few years there has been a noticeable rise in human rights climate litigation against public authorities all around the world. Supporting their claims by a combination of legal and non-legal arguments (such as scientific evidence, environmental principles and climate justice claims), applicants allege that governmental failure to accurately respond to climate change in a decisive and comprehensive ways constitutes failure to carry out protective duties towards their human and constitutional rights. The relief sought by the applicants is usually that of an injunction or mandamus to adopt stricter and more effective combination of laws and policies that would prove (more) effective to avert the climate crisis. The paper undertakes a comparative study of the most relevant cases comprising this new wave of human rights climate litigation. In part I, it identifies reoccurring arguments and obstacles, how they are being approached (and overcome), and how transferable they are across different jurisdictions. Among issues considered are strategies to demonstrate plaintiffs’ standing, arguments aimed at establishing governmental duty to act and accountability for inaction, as well as demands to enjoin the state to undertake specific mitigation or adaptation measures. In part II, the paper ponders on the potential of existing regional human rights mechanisms for constructing and advancing similar cases and elevating the human rights climate litigation from national level. After doing so, the analysis concludes with reflections on the benefits and limitations of human rights-based climate litigation against governments and its general suitability for solving the climate change issue, arguing that such litigation, notwithstanding its positive influence, cannot be considered as a silver bullet to the climate problem.
