RIGHT TO A CLEAN AND HEALTHY ENVIRONMENT, RIGHT TO DEVELOPMENT AND THE NORTH-SOUTH DIVIDE: REVIEWING THE GLOBAL PARTNERSHIP FOR DEVELOPMENT Dr Shawkat Alam Macquarie University, Sydney, Australia

Global Environmental Crisis Climate Change Climate Change Severe human health impacts expected Severe human health impacts expected highly urbanised low-lying coastal areas are particularly vulnerable highly urbanised low-lying coastal areas are particularly vulnerable Ozone Depletion endangers Ozone Depletion endangers human health human health damages the immune system damages the immune system may inhibit the growth of plants, inclusive such important commercial species may inhibit the growth of plants, inclusive such important commercial species reduction of the productivity of phytoplankton reduction of the productivity of phytoplankton Species extinction Species extinction

A right to a healthy environment? Stockholm Declaration – Principle 1: ‘Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations’ Stockholm Declaration – Principle 1: ‘Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations’ The Hague Declaration on the Environment – ‘the right to live in dignity in a viable global environment’ The Hague Declaration on the Environment – ‘the right to live in dignity in a viable global environment’ The Bizkaia Declaration – ‘everyone has the right, individually or in association with others, to enjoy a healthy and ecologically balanced environment’ The Bizkaia Declaration – ‘everyone has the right, individually or in association with others, to enjoy a healthy and ecologically balanced environment’

A right to a healthy environment? No mention in the Universal Declaration, ICCPR, or ICESCR No mention in the Universal Declaration, ICCPR, or ICESCR Article 24 of the African Charter on Human and Peoples’ Rights: “All peoples shall have the right to a general satisfactory environment favourable to their development.” Article 24 of the African Charter on Human and Peoples’ Rights: “All peoples shall have the right to a general satisfactory environment favourable to their development.” Article 11 of the 1988 San Salvador Protocol to the 1969 Inter-American Convention on Human Rights Article 11 of the 1988 San Salvador Protocol to the 1969 Inter-American Convention on Human Rights

A right to a healthy environment ‘Standard of Living’ – Universal Declaration on Human Rights, Article 25 ‘Standard of Living’ – Universal Declaration on Human Rights, Article 25 UN Special Rapporteur on Human Rights and the Environment has argued that ‘standard of living’ necessitates a healthy environment and therefore the right to a healthy environment is a part of international customary law UN Special Rapporteur on Human Rights and the Environment has argued that ‘standard of living’ necessitates a healthy environment and therefore the right to a healthy environment is a part of international customary law ‘Standard of living’ and health have also been linked with environmental standards by the Committee on Economic, Social and Cultural Rights ‘Standard of living’ and health have also been linked with environmental standards by the Committee on Economic, Social and Cultural Rights

Poverty-Environment Nexus and the Right to Development More than 1 billion people still live on less than a dollar a day More than 1 billion people still live on less than a dollar a day Each year, 3 million people die from HIV/AIDS, another 5 million infected, and millions of children orphaned Each year, 3 million people die from HIV/AIDS, another 5 million infected, and millions of children orphaned 11 million children die before reaching their fifth birthday 11 million children die before reaching their fifth birthday

Poverty-Environment Nexus and the Right to Development “Massive poverty and obscene inequality are such terrible scourges of our times—times in which the world boasts breathtaking advances in science, technology, industry and wealth accumulation—that they have to rank alongside slavery and apartheid as social evils.” – Nelson Mandela (Human Development Report 2005, p4) “Massive poverty and obscene inequality are such terrible scourges of our times—times in which the world boasts breathtaking advances in science, technology, industry and wealth accumulation—that they have to rank alongside slavery and apartheid as social evils.” – Nelson Mandela (Human Development Report 2005, p4) Poverty remains the biggest threat to the environment – pollution, mass migration, pressure on primary resources Poverty remains the biggest threat to the environment – pollution, mass migration, pressure on primary resources

Poverty-Environment Nexus and the Right to Development North-South debate on environmental matters – question of values and priorities North-South debate on environmental matters – question of values and priorities Common but differentiated responsibilities Common but differentiated responsibilities Polluter should pay principle Polluter should pay principle Tension between environmental and developmental concerns Tension between environmental and developmental concerns Exploitation of Physical Resources in Developing Countries Exploitation of Physical Resources in Developing Countries Unsustainable Consumption Patterns in Developed Countries Unsustainable Consumption Patterns in Developed Countries

Right to (Sustainable) Development

Right to Development Article 55 of the United Nations Charter states that: Article 55 of the United Nations Charter states that: ‘ The United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development; b. solutions of international economic, social, health, and related problems.’ 1986 Declaration on the Right to Development: 1986 Declaration on the Right to Development: ‘by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized’

Right to Development Right to development as a ‘group’ right Right to development as a ‘group’ right Intergenerational Equity - the right to development is limited to the extent that it cannot be pursued at all costs Intergenerational Equity - the right to development is limited to the extent that it cannot be pursued at all costs The 1993 Vienna Declaration on Human Rights states that ‘the right to development should be fulfilled so as to meet equitably the developmental and environmental needs of present and future generations’ The 1993 Vienna Declaration on Human Rights states that ‘the right to development should be fulfilled so as to meet equitably the developmental and environmental needs of present and future generations’

Right to Development It has been widely acknowledged that development must be viewed holistically as to fulfill social justice and obtain equitable outcomes It has been widely acknowledged that development must be viewed holistically as to fulfill social justice and obtain equitable outcomes The link between development and the environmental protection was made clear by the Stockholm Declaration which stated that “in the developing countries most of the environmental problems are caused by underdevelopment.” The link between development and the environmental protection was made clear by the Stockholm Declaration which stated that “in the developing countries most of the environmental problems are caused by underdevelopment.”

Right to Development “Economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable development.” (General Assembly RES 51/240, 20 June 1997, Agenda for Development) “Economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable development.” (General Assembly RES 51/240, 20 June 1997, Agenda for Development) The link between human right and the environment was one of the hot issues at the Johannesburg World Summit on Sustainable Development in 2002 The link between human right and the environment was one of the hot issues at the Johannesburg World Summit on Sustainable Development in 2002 Shift away from a predominantly environmental focus, to a heightened attention to the social pillar of SD Shift away from a predominantly environmental focus, to a heightened attention to the social pillar of SD

Sustainable Development The Brundtland Report established that: The Brundtland Report established that: “Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs” (p 19) Affirmed by Rio Declaration Affirmed by Rio Declaration Assistance of the world’s poorest via economic growth via exploitation of natural resources encounters conflict if a high quality environment is also desirable Assistance of the world’s poorest via economic growth via exploitation of natural resources encounters conflict if a high quality environment is also desirable

Sustainable Development and the Millennium Development Goals Goal Eight of the MDGs asserts that there is an urgent need to: Goal Eight of the MDGs asserts that there is an urgent need to: Develop further an open trading and financial system that is rule-based, predictable and non- discriminatory… Develop further an open trading and financial system that is rule-based, predictable and non- discriminatory… Address the least developed countries' special needs… Address the least developed countries' special needs… In cooperation with the private sector, make available the benefits of new technologies— especially information and communications technologies. In cooperation with the private sector, make available the benefits of new technologies— especially information and communications technologies.

Sustainable Development “sustainable development is no ‘backwater’ of a topic; it raises some of the most fundamental issues currently facing the international community.” - (International Law Association, Berlin Conference Paper, 2004, p 3) “sustainable development is no ‘backwater’ of a topic; it raises some of the most fundamental issues currently facing the international community.” - (International Law Association, Berlin Conference Paper, 2004, p 3) The indivisibility of the three tiers: economic, social and environmental The indivisibility of the three tiers: economic, social and environmental ILA New Delhi Declaration, Principle 7: ILA New Delhi Declaration, Principle 7: ‘[t]he principle of integration reflects the interdependence of social, economic, financial, environmental and human rights aspects of principles and rules of international law relating to sustainable development as well as of the needs of current and future generations of humankind’.

Trade and Sustainable Development Current unsustainable processes of development Current unsustainable processes of development Clearly mentioned in Rio Declaration, Agenda 21, Johannesburg Declaration and Millennium Development Goals that trade could be effective engine for economic growth if trade was free as well as fair Clearly mentioned in Rio Declaration, Agenda 21, Johannesburg Declaration and Millennium Development Goals that trade could be effective engine for economic growth if trade was free as well as fair WTO Preamble’s express mention of sustainable development WTO Preamble’s express mention of sustainable development

Trade Liberalisation Theory Free trade/Fair trade divide Free trade/Fair trade divide At the international level trade liberalisation is driven by theory that openness to international markets will generate economic growth and thereby reduce poverty At the international level trade liberalisation is driven by theory that openness to international markets will generate economic growth and thereby reduce poverty Concept of comparative advantage Concept of comparative advantage Privatization, deregulation and liberalization Privatization, deregulation and liberalization

Unequal Trade “Trade can be an engine for growth that lifts millions of people out of poverty, but many developing countries face constraints that prevent them from participating in the global trading system.” (Oxfam, 2005 p1) “Trade can be an engine for growth that lifts millions of people out of poverty, but many developing countries face constraints that prevent them from participating in the global trading system.” (Oxfam, 2005 p1) Developing countries cannot accrue benefits of a free market in either agricultural commodities or manufactured goods - does not exist Developing countries cannot accrue benefits of a free market in either agricultural commodities or manufactured goods - does not exist Key areas of concern: intellectual property, services and agriculture Key areas of concern: intellectual property, services and agriculture

Unfairness in the global trading order - a system that has forgotten its roots The WTO’s primary objective is designed to raise the standard of living of the world’s people through sustainable development The WTO’s primary objective is designed to raise the standard of living of the world’s people through sustainable development Despite such rhetorical aspirations, under the status quo, power imbalances prevalent and sustained by the system itself Despite such rhetorical aspirations, under the status quo, power imbalances prevalent and sustained by the system itself Despite decades of preferential schemes, least developed countries' share of world trade continues to decline Despite decades of preferential schemes, least developed countries' share of world trade continues to decline

Trade Negotiations and Developing Countries Unfairness and lack of good faith in the negotiation process – Cancun, Uruguay, Doha, Hong Kong, etc Unfairness and lack of good faith in the negotiation process – Cancun, Uruguay, Doha, Hong Kong, etc Promises often made (eg in regards to technical assistance) but rarely delivered Promises often made (eg in regards to technical assistance) but rarely delivered Limits of developing countries bargaining powers – including technical capacity Limits of developing countries bargaining powers – including technical capacity Developed countries protect own interests, ignoring and delaying on major issues, eg textiles Developed countries protect own interests, ignoring and delaying on major issues, eg textiles

Preferential Market Access Preferential schemes (eg GSPs) common feature of the modern global trading order Preferential schemes (eg GSPs) common feature of the modern global trading order On the surface, seems to promote equitable trade and sustainable development On the surface, seems to promote equitable trade and sustainable development Only offer limited benefits to developing countries Only offer limited benefits to developing countries Costs can outweigh benefits – e.g. trade diversions, impediments to reform, power imbalances heightened and used as leverage Costs can outweigh benefits – e.g. trade diversions, impediments to reform, power imbalances heightened and used as leverage

Subsidies, Market Access and the Environment A major impediment to market access in key areas for developing countries, especially agriculture A major impediment to market access in key areas for developing countries, especially agriculture Developed country farm subsidies and trade protections depress price in international market Developed country farm subsidies and trade protections depress price in international market Farm subsidies and trade protections force developing countries into environmentally unsound practices Farm subsidies and trade protections force developing countries into environmentally unsound practices

Green Protectionism Trade restrictions for environmental purposes used as protectionist policies Trade restrictions for environmental purposes used as protectionist policies Impedes developing countries’ ability to compete in global market or to develop sustainable industry Impedes developing countries’ ability to compete in global market or to develop sustainable industry Process and Production Method (PPM) standards Process and Production Method (PPM) standards Eco-Labels and technical standards Eco-Labels and technical standards For developing countries, improved market access is a vital part of moving forward to sustainable development For developing countries, improved market access is a vital part of moving forward to sustainable development

Intellectual Property and TRIPS TRIPS as anti-competitive and promoting monopolisation of technology by the North TRIPS as anti-competitive and promoting monopolisation of technology by the North Acts as blockade to technology transfer and economic development Acts as blockade to technology transfer and economic development Has negative effects on innovation, particularly in developing countries, including in the area of environmentally sound technologies Has negative effects on innovation, particularly in developing countries, including in the area of environmentally sound technologies

Intellectual Property and Technology Transfer The North’s position of “All take, No Give” The North’s position of “All take, No Give” The TRIPs Agreement has proven to be a device designed to encourage monopolisation and other anti-competitive practices The TRIPs Agreement has proven to be a device designed to encourage monopolisation and other anti-competitive practices The appropriation of Indigenous knowledge by Northern multinationals The appropriation of Indigenous knowledge by Northern multinationals

Indigenous Knowledge The TRIPs Agreement does not specifically mention traditional knowledge The TRIPs Agreement does not specifically mention traditional knowledge To receive patent protection the invention must be “new, involve an inventive step and [be] capable of industrial application” (27.1) To receive patent protection the invention must be “new, involve an inventive step and [be] capable of industrial application” (27.1) Therefore, indigenous knowledge is quite vulnerable to being appropriated by outsiders Therefore, indigenous knowledge is quite vulnerable to being appropriated by outsiders The only legal recourse is to challenge the patent with the patent granting authorities The only legal recourse is to challenge the patent with the patent granting authorities

Intellectual Property and Access to Medicine 10 million people die every year from preventable diseases 10 million people die every year from preventable diseases 2 billion people lack access to essential medicines 2 billion people lack access to essential medicines Diseases largely wiped out in the developed world still kill millions each year in developing countries Diseases largely wiped out in the developed world still kill millions each year in developing countries In many cases, these diseases are treatable, the issue becomes one of access for the developing world In many cases, these diseases are treatable, the issue becomes one of access for the developing world

TRIPS and Right to Health Right to Health - Art 25 of the Universal Declaration of Human Rights Right to Health - Art 25 of the Universal Declaration of Human Rights Interdependence of development and health Interdependence of development and health Knowledge hoarding and its impact – especially in relation to pharmaceuticals Knowledge hoarding and its impact – especially in relation to pharmaceuticals Doha Declaration and public health – the rhetoric vs reality Doha Declaration and public health – the rhetoric vs reality