Can respect for planetary boundaries be legally enforced?

Peter Roderick

EEB AGM, Brussels1st October 2012

Yes, but…Yes, but…

The PB concept offers a The PB concept offers a new framing for new framing for sustainability…sustainability…

Sustainable development:Sustainable development:E / S / E balanceE / S / E balance

cf.cf.

PB-based sustainability:PB-based sustainability:

ESP > S < EESP > S < E

… …which calls for new or modified:which calls for new or modified:

principlesprinciples

institutionsinstitutions

treaties and other international treaties and other international agreementsagreements

The PB concept calls for new governance based on principles of recognition, respect and responsibility:

“Earth-system processes that are necessary for ensuring a safe operating space for humanity should be recognized and respected. We are all responsible for safeguarding those processes from the threats of serious or irreversible damage as a result of human activities.”

Draft Declaration on Planetary Boundaries, Principle 1

Recognizing meansRecognizing means

acknowledgingacknowledging the processes and the need to act the processes and the need to act

researchingresearching and and developingdeveloping understanding further – of understanding further – of processes, parameters, thresholds and boundariesprocesses, parameters, thresholds and boundaries

identifyingidentifying and and monitoringmonitoring human activities involved human activities involved

communicatingcommunicating information transparently to encourage information transparently to encourage public engagement, trust, common understanding and public engagement, trust, common understanding and acceptance of shared responsibilityacceptance of shared responsibility

Respect meansRespect means

usingusing scientific information to understand thresholds scientific information to understand thresholds

determiningdetermining boundaries transparently on the basis of boundaries transparently on the basis of scientific advice, having taken into account social and scientific advice, having taken into account social and economic considerations, public opinion and having economic considerations, public opinion and having assessed the risk of crossing the boundariesassessed the risk of crossing the boundaries

making decisionsmaking decisions to minimise the risk of crossing the to minimise the risk of crossing the boundariesboundaries

designingdesigning public and private sector institutions to safeguard public and private sector institutions to safeguard thresholds and boundariesthresholds and boundaries

Responsibility meansResponsibility means

establishingestablishing over-arching legal principles and duties to over-arching legal principles and duties to recognise and respect processes across the range of human recognise and respect processes across the range of human activities that affect themactivities that affect them

ensuringensuring people have the right to have them recognised and people have the right to have them recognised and respectedrespected

guaranteeingguaranteeing rights to information, participation and access rights to information, participation and access to justice, including appropriate and effective remedies, andto justice, including appropriate and effective remedies, and

creatingcreating an independent public enforcement body with an independent public enforcement body with appropriate and effective legal powers and dutiesappropriate and effective legal powers and duties

Institutionally

- a new supra-sectoral body is needed as ‘keeper of the thresholds’

- needs legal underpinning

- Modest Rio hopes dashed…..

Outcome document zero draft, paragraph 52:

“We stress the need for a regular review of the state of the planet and the Earth’s carrying capacity and request the Secretary-General to coordinate the preparation of such a review in consultation with relevant international organizations and the UN system.”

Outcome document, paragraph 90:

“We stress the need for the continuation of a regular review of the state of the Earth’s changing environment and its impact on human well-being and in this regard, we welcome such initiatives as the Global Environmental Outlook process aimed at bringing together environmental information and assessments and building national and regional capacity to support informed decision making.”

CommitmentsCommitments

UN and States:UN and States:

To To reviewreview and and improveimprove laws and policies laws and policies

To To cooperatecooperate with and with and reportreport to the supra-sectoral body to the supra-sectoral body

States to consider:States to consider: the impact of their activities on processes, andthe impact of their activities on processes, and how they can ensure that their activities do not exceed their how they can ensure that their activities do not exceed their

fair sharefair share of the safe operating space. of the safe operating space.

Treaties and other international agreementsTreaties and other international agreements

UN Framework Convention on Climate ChangeUN Framework Convention on Climate Change ““The ultimate objective of this Convention and any related legal The ultimate objective of this Convention and any related legal

instruments that the Conference of the Parties may adopt is to instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would the atmosphere at a level that would prevent dangerous prevent dangerous anthropogenic interference with the climate system.anthropogenic interference with the climate system. Such a Such a level should be achieved within a time-frame sufficient to allow level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic food production is not threatened and to enable economic development to proceed in a sustainable manner.”development to proceed in a sustainable manner.”

- not bad? pulling back? aerosols? ocean acidification?- not bad? pulling back? aerosols? ocean acidification?

Ocean acidificationOcean acidification “ “the UNFCCC alone the UNFCCC alone does not providedoes not provide an adequate legal an adequate legal

framework for addressing OA because ocean acidification is framework for addressing OA because ocean acidification is not an effect of climate change…The UNFCCC could rather be not an effect of climate change…The UNFCCC could rather be seen as seen as exacerbatingexacerbating OA by passively and even actively OA by passively and even actively promoting the use of the oceans as carbon sinks in promoting the use of the oceans as carbon sinks in mitigating climate change.”mitigating climate change.”

Rakhyun Kim, Australian National University, Rakhyun Kim, Australian National University, PUP Conference abstract, March 2012PUP Conference abstract, March 2012

‘Is a New MEA on OA Necessary?’ RECIEL 21 (3) 2012, forthcoming

“ “a new MEAa new MEA on ocean acidification is necessary to fill the on ocean acidification is necessary to fill the regulatory gap.”regulatory gap.”-- a post-Kyoto agreement under the UNFCCC?a post-Kyoto agreement under the UNFCCC?-- an implementing agreement to the UN Convention on the Law of an implementing agreement to the UN Convention on the Law of the the Sea? Sea?

Convention on BiodiversityConvention on Biodiversity “ “The The objectivesobjectives of this Convention, to be pursued in accordance of this Convention, to be pursued in accordance

with its relevant provisions, are the with its relevant provisions, are the conservationconservation of biological of biological diversity, the sustainable diversity, the sustainable useuse of its components and the fair and of its components and the fair and equitable equitable sharing of the benefitssharing of the benefits arising out of the utilization of arising out of the utilization of genetic resources, including by appropriate access to genetic genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to taking into account all rights over those resources and to technologies, and by appropriate funding.”technologies, and by appropriate funding.”

- conservation, use and sharing combined indiscriminately- conservation, use and sharing combined indiscriminately

Nitrogen Nitrogen

- - no holistic management regime for the N atomno holistic management regime for the N atom

““A new international treaty targeted explicitly on nitrogen A new international treaty targeted explicitly on nitrogen could be a powerful mechanism to bring the different elements could be a powerful mechanism to bring the different elements of the nitrogen problem together.”of the nitrogen problem together.”

European Nitrogen Assessment, April 2011European Nitrogen Assessment, April 2011

““There is no global treaty to address these issues. An important There is no global treaty to address these issues. An important step must be to address the priorities for international step must be to address the priorities for international agreement, irrespective of possible legal format.”agreement, irrespective of possible legal format.”

Priorities for a new global treaty on nitrogen, Sutton Priorities for a new global treaty on nitrogen, Sutton et alet al, , PUP Conference abstract, March 2012PUP Conference abstract, March 2012

PhosphorusPhosphorus ““phosphorus is phosphorus is probably the most dangerousprobably the most dangerous of various of various

impacts [of human activities] on our environment and also impacts [of human activities] on our environment and also agriculture”agriculture”

Professor Paul Crutzen, February 2012Professor Paul Crutzen, February 2012

“ “no existing international organisation is taking an active no existing international organisation is taking an active

role in governing phosphorus resources to ensure its long-role in governing phosphorus resources to ensure its long-term sustainability for future food…There is substantial term sustainability for future food…There is substantial institutional fragmentationinstitutional fragmentation and and ambiguityambiguity regarding roles regarding roles and responsibilities.”and responsibilities.”

Dr Dana Cordell, Global Phosphorus Research InitiativeDr Dana Cordell, Global Phosphorus Research Initiative

Beyond MEAs?Beyond MEAs?

“…“…environmental and social goals must be mainstreamed environmental and social goals must be mainstreamed into the activities of into the activities of all global economic institutionsall global economic institutions. This . This avoids the current situation where their activities undermine avoids the current situation where their activities undermine gains achieved by environmental treaties because of poor gains achieved by environmental treaties because of poor policy coherence. This will require meaningful policy coherence. This will require meaningful high-level high-level dialoguedialogue among economic development and environmental among economic development and environmental institutions and the same government ministers – especially institutions and the same government ministers – especially of finance or treasuries – to attend such dialogues to ensure of finance or treasuries – to attend such dialogues to ensure consistent national engagement at the highest levels. The consistent national engagement at the highest levels. The UN Sustainable Development Council that we propose could UN Sustainable Development Council that we propose could host such dialogues.”host such dialogues.”

Biermann & Bernstein, The Guardian, 15th March 2012Biermann & Bernstein, The Guardian, 15th March 2012

Is dialogue enough?Is dialogue enough?

Legal underpinning for World Bank’s Legal underpinning for World Bank’s exclusionexclusion of environmental and social of environmental and social issues:issues:

Articles of Agreement of the International Bank for Reconstruction and Articles of Agreement of the International Bank for Reconstruction and Development, Article I: Development, Article I:

““The purposes of the Bank are:The purposes of the Bank are: (i) To assist in the reconstruction and development of territories of (i) To assist in the reconstruction and development of territories of

members by facilitating the investment of capital for productive members by facilitating the investment of capital for productive purposes….purposes….

(ii) To promote private foreign investment….(ii) To promote private foreign investment…. (iii) To promote the long-range balanced growth of international trade (iii) To promote the long-range balanced growth of international trade

and the maintenance of equilibrium in balances of payments...and the maintenance of equilibrium in balances of payments... (iv) To arrange the loans made or guaranteed by it in relation to (iv) To arrange the loans made or guaranteed by it in relation to

international loans through other channels…international loans through other channels… (v) To conduct its operations with due regard to the effect of international (v) To conduct its operations with due regard to the effect of international

investment on business conditions in the territories of members…investment on business conditions in the territories of members… The Bank shall be guided in all its decisions by the purposes set forth The Bank shall be guided in all its decisions by the purposes set forth

above.”above.”

Article IV, Section 10, entitled ‘Political Activity Prohibited’:Article IV, Section 10, entitled ‘Political Activity Prohibited’: “ “The Bank and its officers shall not interfere in the political The Bank and its officers shall not interfere in the political

affairs of any member; nor shall they be influenced in their affairs of any member; nor shall they be influenced in their decisions by the political character of the member or decisions by the political character of the member or members concerned. members concerned. Only economic considerations shall be Only economic considerations shall be relevant to their decisionsrelevant to their decisions, and these considerations shall be , and these considerations shall be weighed impartially in order to achieve the purposes stated weighed impartially in order to achieve the purposes stated in Article I.”in Article I.”

Two year Two year reviewreview underway underway

“ “The World Bank will be embarking on a two year process of The World Bank will be embarking on a two year process of

updating and consolidating its updating and consolidating its environmental and social environmental and social safeguard policiessafeguard policies into an integrated environmental and into an integrated environmental and social policy framework.social policy framework.….”….”

World Bank website, August 2011World Bank website, August 2011 cf. cf.

““Reviewing and Updating the Environmental and Social Reviewing and Updating the Environmental and Social Safeguard Policies (Sept. 2012) Safeguard Policies (Sept. 2012)

The World Bank is planning to launch The World Bank is planning to launch next monthnext month a two-year a two-year consultative process to review and update its environmental consultative process to review and update its environmental and social safeguards policies.”and social safeguards policies.”

World Bank website yesterdayWorld Bank website yesterday

In conclusion:In conclusion:

Adopting the PB concept means:Adopting the PB concept means:

a a new framingnew framing for sustainability for sustainability

new and modified principles, institutions and legal new and modified principles, institutions and legal agreementsagreements across the range of Earth-system processes across the range of Earth-system processes and beyond MEAs, including an over-arching legal and beyond MEAs, including an over-arching legal instrument to establish a supra-sectoral body instrument to establish a supra-sectoral body

multidisciplinary hubsmultidisciplinary hubs working together around those working together around those processes to develop understanding and propose processes to develop understanding and propose institutional, legal and policy responsesinstitutional, legal and policy responses