Lights and shadows in the relationship between international law and sustainable investments: The challenges of ‘natural resources grabbing’ and their effects on State sovereignty (original) (raw)
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Medicine and law, 2008
Since the coining of the term 'ectogenesis' by Haldane in 1924, we have witnessed sensational biotechnological triumphs such as in vitro fertilisation, the cloning of "Dolly" the sheep, and the publication of the human genetic code. These triumphs mix benefits with portents in one seamless package. The object of this article is to assess critically the Universal Declaration on Bioethics and Human Rights. It is argued that the Declaration is not a suitable international instrument for regulating biotechnology and protecting future generations. Finally, the feasibility of a legally binding international instrument based on a global consensus is evaluated.
The Right to Development in the Era of Sustainable Development: A Legal Appraisal
37th IBIMA Conference Proceedings, 2021, Cordoba, Spain, 2021
In the context of globalization, to overcome various economic, social, cultural, and humanitarian dilemmas, the most influential international intergovernmental organization, United Nations has proposed a new interdisciplinary paradigm related to the right to development within the overview of initiatives regarding sustainable development. Precisely United Nations' activities have captivated the interest of legal academics and practitioners to analyze in their scientific demarche, as is done in the current paper, the impact of this new paradigm over its beneficiaries: individuals and the global community. Subsequently to the clarification of the essential concepts like as "development", "sustainability" and "sustainable development", according to the parameters of legal descriptive research, it seems appropriate to bring to attention the relevant legal framework related to the right to development, with references both to the hard law-such as United Nation Charter, International Covenant on Social, Economic and Cultural Rights, International Covenant on Civil and Political Rights-and to soft law-such as Declaration on the Right to Development, Rio Declaration on Environment and Development, The 2030 Agenda for Sustainable Development. Within the frame of the legal conceptual analyses, the interpretation of the United Nations' regulations offers the perfect reasoning to emphasize, in an innovator approach, the plurality of dimensions of the right to development-social, economic, cultural, politic-which might be revealed by its heterogeneous implementation in different fields of activity, and the principle of interdependence with other human rights, to propose, as personal initiative, the recognition of its sui generis nature and character, thanks to its continuous extension following the evolution of the global community. Based on the same United Nations legal framework and its accordance with current and future desirable moral, political, economical aims, operating with the evaluative method, it is demonstrated that, for satisfying guarantees of promotion and protection of the human rights, generally, and right to development, specifically, States have to be more determined to assume the collective commitments recommended by United Nations and to fulfill intricate duties related to the joint interaction of the right to development with other rights in the context of sustainable development as currently is expressed by and within the global community.
FPIC and a Rights-Based Approach to Development
Resource extraction remains a key economic development priority for many governments who rely on export earnings and foreign direct investment to boost capital and grow national GDP. In a world increasingly beholden to principles of economic liberalization, free trade, and the omnipresence of the market, demand for resource extraction has been met with billions in revenue and high expectations of growth. It has also kindled at times violent opposition, particularly from within regions already disenfranchised by unequal economic development and for whom recent histories of political and economic exploitation are still palpable. Perhaps nowhere has this been more historically pervasive than Latin America where, since the year 2000, over 120 resource-related conflicts have been recorded (Observatorio de Conflictos Mineros de América Latina 2013). Development scholars increasingly understand resource conflicts to be just one among many consequences of an international development model that privileges economic gain at the expense of individual rights and collective cultural sensitivities (Cypher 2012; Essex 2012; Dashwood 2007). These conflicts are, in part, the impetus behind growing calls for a new model of sustainable development, one that better reflects the experiences of individuals and communities who are most directly and fundamentally,
Science-based Policies 8. Fairness: Adequate Distribution of Benefits and Non-discrimination 9. Comparing the Approaches 10. Conclusion 140 2 Stephen Krasner, 'Structural Causes and Regime Consequences: Regimes as Intervening Variables'(1982) 36(2) International Organisation 1, 2. 3 David Humpreys, 'Know Your Rights. Earth Jurisprudence and Environmental Politics'(2015) 10(3-4) The International Journal of Sustainability Policy and Practice 1 , distinguishing between rights of states, human rights, property rights, and corporate rights; Sabrina Safrin, 'Hyperownership in a Time of Biotechnological Promise: The International Conflict to Control the Building Blocks of Life' (2004) 98(4) American Journal of International Law 641, identifying global commons, individual intellectual property rights, collective intellectual property rights, and states' sovereign rights. 1 Governance can be defined as 'the processes of interaction and decision-making among the actors involved in a collective problem that lead to the creation, reinforcement or reproduction of social norms and institutions'; see Marc Hufty, 'Investigating Policy Processes: The Governance Analytical Framework (GAF)' in Urs Wiesmann and Hans Hurni (eds), Research for Sustainable Development: Foundations, Experiences, and Perspectives (Geographica Bernensia 2010) 403. On 405-407 he specifies six requirements to be applied when studying and analyzing governance processes: realistic (nonnormative); interdisciplinary, reflexive, comparative, generalisable and operational. 'The Regime Complex for Plant Genetic Resources' (2004) 58(2) International Organisation 277.
PhD Thesis, 2018
Another feature has been its strong emphasis on addressing livelihoods of affected peoples, public participation or the so-called "bottom-up" approach in every process, and the value given to TK of people on the ground. The bottom-up approach is also reflected in the UNCCD institution in its promotion of participation of grassroots, women and youth through CSOs in the UNCCD processes. Nevertheless, the provisions concerned are largely soft. The regime does not go far to use the language of right to enable affected people to claim their substantive or procedural rights against the States, 973 leaving a substantial discretion to the States over human beings.
Environmental Rights: Recognition, Implementation and Outcomes
2020
This article examines the emergence of a human right to a healthy environment emerged; how it is recognized in international, regional, national and subnational legal instruments; the extent to which it has been implemented in law; whether it improves environmental and human health outcomes; and the potential for international recognition. It posits that the case for legal recognition of a RHE is complicated and complex. There are normative, legal, ethical, and moral justifications that both the planet and people living on it are better off in a world that recognizes a RHE. Environmental rights are real. The article reports that there are 136 countries subject to a legal RHE, including: • 84 expressly (see Appendix, The Case for Environmental Human Rights). See also, Environmental Rights Map (same); • 6 reliably impliedly (Bangladesh, Guatemala, India, Pakistan, Panama, and Sri Lanka); • 23 legislatively--not already counted (Armenia, Bhutan, Bosnia-Herzegovina, Cyprus, Djibouti, Eretria, Gambia, Guatemala, Guinea-Bissau, Haiti, Kazakhstan, Lebanon, Liberia, Lithuania, Madagascar, Monaco, Nigeria, Palau, Panama, Saudi Arabia, Tajikistan, Tanzania, and Uruguay); • 23 per ratification of the African Charter--not already counted (see Appendix); Does legal recognition of a RHE improve environmental outcomes? The article reports that with some exceptions there is (still) very modest pursuit of RHE-based legal claims by litigants. Very few cases reach the merits. Few apex courts (those that issue controlling or precedential decisions) engage express RHE-based claims. Those asked to consider whether there is an unenumerated RHE usually find there isn’t. There are complex reasons for the dearth of cases. Many constitutionally entrenched provisions aren’t self-executing (enforceable without legislative action) because they don’t appear in the “fundamental rights” or “bill of rights” portion of the constitution. Even if they do, a gauntlet of procedural obstacles await, including “standing” (who can sue), “jurisdiction” (which court can hear the matter), and separation of powers (whether the matter should be presented to another – perhaps elected – branch of government). There is much more jurisprudence regarding the extent to which other socioeconomic and cultural (“SEC”) rights impliedly incorporate a RHE, including rights life, health, water, family and dignity. Exemplars include the countries noted above, as well as some regional tribunals, including the European and Inter-American Courts of Human Rights. Yet implementation lags even where enforcement succeeds. While embedding a RHE in a constitution may correlate (or be “positively associated”) with better environmental performance (and the results here are mixed), evidence – especially that which has been replicated – that doing so necessarily causes environmental improvement is in short supply. Presently, there is more evidence of effectiveness in vindicating SEC rights in the service of environmental improvement, including concerning climate change. A fair assessment is that while the case for RHE is solid, it has shortcomings that warrant further evidence-based analytical interrogation and judicial training. In the end, the outcome and objective converge: the world is better off for recognizing everyone’s right to a healthy environment. International recognition can help to redress shortcomings, realize potential, and catalyze the cause.