Volume 4: Issue 2 (2008)
Counter(measur)ing Climate Change: The ILC, Third State Countermeasures and Climate Change
Patrick Hamilton
Abstract: This essay examines the legality and feasibility of non-injured States taking countermeasures against countries that are in breach of international climate change obligations. Section Two examines the development of the legal regime surrounding third State countermeasures and discusses the current state of the law with specific reference to the work of the ILC. Section Three takes a detailed look at how trade-related countermeasures could be legally justified if taken by a non-injured State to promote compliance with obligations arising out of the climate change context. Section Four takes a brief look at the political and strategic feasibility of these measures by discussing some of the pros and cons of their use. The study concludes that while third State countermeasures in the climate change context are unwieldy, they are not illegal; thus, they may be a valid tool to compel States to respect the obligations they have made as part of a multilateral international legal response to the climate change crisis.
Ubong E. Effeh
Abstract: Sub-Saharan Africa remains mired in economic underdevelopment almost half a century since its emancipation from the yoke of colonialism. The current celebration of its recent economic growth is, unfortunately, reminiscent of earlier false dawns. This article seeks to attract scholarly attention to the legal dimension of underdevelopment in the region, as the literature has thus far focused mainly on its political and economic aspects. It was, after all, only two decades after decolonization that the rulers of sub-Saharan Africa, acting in concert with other "Third World" leaders, persuaded the United Nations General Assembly to adopt the Declaration on the Right to Development (UNDRD), thereby explicitly recognizing economic development as "an inalienable human right." Though the status of this international document as a source of law and the conceptualization of its content remain to be settled, it stands as a promising blueprint for the realization of sustainable development through the promotion of economic and social rights. The UNDRD is particularly relevant to a rights-based approach to development, of which key issues will be highlighted by the present examination. Ultimately, a variety of actors would benefit from the broader implications of this instrument, not least because of the UNDRD’s clear delineation of the obligations of all participants in the development process.
The Integration of the Pillars of Sustainable Development: A Work in Progress
Hugh Wilkins
Abstract: Sustainable development continues to be viewed as a niche area of development, and is considered by many to be synonymous with environmentalism. At the international level, environment and development issues have not been effectively integrated with one another and continue to be addressed on virtually separate tracks. This article examines how sustainable development has been recently interpreted, applied, and integrated at the international level. The article examines the treatment of the concept of sustainable development at the 2005 World Summit and by the 2006 UN High Level Panel on System Wide Coherence, revealing that world leaders at the Summit segregated the three pillars of sustainable development, while the Panel attempted to apply sustainable development as a cross-cutting issue. Neither approach, however, was successful in adopting "sustainable development as a key element of the overarching framework for United Nations activities" as required by UN General Assembly Resolution 57/253. This article posits that a different approach to integrating the pillars of sustainable development and applying the concept is needed. A framework convention on sustainable development that pulls together the various interpretations and applications of sustainable development, and that adds coherence to international environmental and development law and policy, is suggested.
Graham Mayeda
Abstract: International investment agreements can entail detrimental effects for developing countries: they can limit a government’s ability to regulate in the public interest where this interest runs counter to that of foreign investors; they can severely restrict a country’s ability to enact measures responding to financial, social, and economic crises; and they can impede legitimate democratic processes. Three recent arbitral decisions at the International Centre for Settlement of Investment Disputes—Compañía de Aguas del Aconquija S.A. v. Argentina, Sempra Energy International v. Argentina, and Enron v. Argentina—demonstrate these risks. This comment examines how these tribunals have negatively impacted Argentina through their interpretations of expropriation law, the fair and equitable treatment principle, and equitable defences such as necessity, as well as through the tribunals' willingness to interpret Argentine law. The author proposes that future international investment tribunals apply a sustainable development analysis to avoid like outcomes. Such an analysis would consider promoting investment not as an end in itself, but as part of a country’s approach to important social issues, including promoting human rights, protecting the environment, and improving social welfare. In advancing this proposal, the author explores the legal and equitable basis for applying sustainable development law when interpreting international investment agreements.
Jane Matthews Glenn
Reviewed: Karen Bakker, ed., Eau Canada: The Future of Canada’s Water (Vancouver: UBC Press, 2007)
