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The Environment: Responsibility to Protect over Right to Use?

Ce billet s’insère dans la série thématique du blogue de la RDPDD Réflexions sur les pays industrialisés. / This post is a part of the JSDLP’s Reflections on the Global North blog series. 

Rosine est une étudiante de première année en droit à l’Université McGill. Elle détient également un baccalauréat en sciences politiques de McGill lors duquel elle a eu la chance de travailler au sein du projet Dialogue pour un Canada vert, ainsi que pour le Secrétariat de la Convention sur la biodiversité biologique, une branche du programme des Nations Unies pour l’environnement.

Projection : Cylindrical (1)FOV : 176 x 56Ev : 13.85 Panorama (Source : Wikimedia Commons)

Projection : Cylindrical (1)FOV : 176 x 56Ev : 13.85 Panorama (Source : Wikimedia Commons)

En décembre dernier s’est tenue la Conférence de Paris de 2015 sur le climat (COP21). J’écoutais la chaîne radio de CBC lorsque j’ai entendu une discussion à son propos : le présentateur questionnait des experts et des citoyens s’ils étaient optimistes quant à la COP21. La considéraient-ils comme un pas vers un développement plus durable au Canada?

Certains étaient d’avis que la COP21 était un début, mais qu’un effort individuel était aussi nécessaire afin de parvenir à un développement plus durable à l’échelle nationale. D’autres suggéraient que l’action individuelle était malheureusement insuffisante — voire inutile. Ces derniers considéraient que c’était au gouvernement de mettre en place un système encourageant les grands joueurs économiques à changer leur comportement de manière à prendre en compte, entre autres, la réduction des gaz à effet de serre. Ce débat m’a laissé perplexe et a suscité chez moi une réflexion profonde.

Qu’est-ce qui doit ultimement changer pour que nous puissions adopter une trajectoire de développement qui serait durable à long terme? À quel niveau le changement doit-il s’effectuer?

Ce débat se situe à l’intérieur d’un questionnement plus vaste. Selon moi, la discussion par rapport aux changements sociétaux à adopter pour accomplir un développement plus durable s’inscrit dans un cadre conceptuel plus grand : celui des droits et des devoirs (que nous qualifierons aussi de responsabilités).

Some see rights and responsibilities in contexts such as the environment as dichotomous, meaning that from certain things emanate rights, and from other things emanate responsibilities or duties. However, other people see rights and responsibilities as a whole, where when one has a right, an automatic duty follows. Reading Legal Traditions of the World by Patrick Glenn, one is shown that the conception of rights is not the same in all legal traditions. Rights are a concept of social organization (at least in the Western legal traditions he considers, i.e. in the Common and the Civil law). With rights came liberty and the association between those two concepts remains until today (Glenn).

However, this quasi glorification of rights as a vector of liberty is less present in other legal traditions according to Glenn. Indeed, in the Talmudic tradition, what is emphasized is, rather than a concept of individual right, one of obligations, of mitzvah. The Shari’a presents a similar situation. Indeed, there is no word for right in the legal language of this text. This tradition sees rights as “disruptive and unnecessary” (Glenn).

What change, then, is necessary in order to make sustainable development everyone’s responsibility?

First, when looking at the conception of rights in different legal traditions, one can see that the Western tradition is problematic, as it does not put great emphasis on the concept of responsibility and because of the individualistic turn it took, it “fails to take into account our essential humanity” (“Reconceiving Rights as Relationship”, Nedelsky).

Moreover, the struggle ahead of us seems similar to one already encountered; the struggle of voting. Election turn-out has been steadily falling over time. In an open letter to the Ottawa Citizen, Anaïs Voski talks about voting passing from being a privilege one would acquire, to a universal right one has. Some suggest that voting should become compulsory, and others simply encourage people to express their opinions. Regardless of the stance one takes, many people seem to suggest that the ultimate solution to decreasing turn out lies in changing the conception of voting from a privilege to a responsibility.

The environment is the same! As much as voting is a responsibility that comes with the benefits citizenship, environmental protection should be treated likewise. Even the Canadian government suggests that we have citizenship responsibilities, one of which being that “every citizen has a role to play in avoiding waste and pollution while protecting Canada’s natural, cultural and architectural heritage for future generations”.

Taiga Landscape In Canada (Source: Wikimedia Commons)

Taiga Landscape In Canada (Source: Wikimedia Commons)

Ainsi, je suggère que le changement le plus important à accomplir afin de pouvoir aborder le chemin du développement durable au Canada, tout comme ailleurs, est d’envisager la conception de droits et devoirs non comme une dichotomie, mais plutôt comme un tout, une suite logique. Selon cette conception modifiée, les devoirs (par exemple minimiser notre pollution actuelle) découlent des droits d’utiliser l’environnement dans lequel on vit. Ce changement conceptuel nécessite selon moi de relativiser l’importance des droits comme porteurs de liberté et d’insister plutôt sur les droits en tant que générateurs de devoirs et de responsabilités.

Interested in learning more about rights and responsibilities in sustainable development? We suggest these selected articles from our past issues: 

These articles are referenced as suggested reading. It should not be taken to imply their authors share the views expressed above. 

 

Abbotsford v Shantz: Towards positive Charter rights?

This post is a part of the JSDLP’s Reflections on the Global North blog series. / Ce billet s’insère dans la série thématique du blogue de la RDPDD Réflexions sur les pays industrialisés.

Brendan Cooke is an associate editor with the JSDLP, and a second-year student at McGill Law.

Attribution: Wikimedia Commons, Jay Black, Homeless Man Sleeping on Sidewalk, Vancouver, Canada

Attribution: Wikimedia Commons, Jay Black, Homeless Man Sleeping on Sidewalk, Vancouver, Canada

What rights in law, if any, do homeless persons have to make use of public spaces? And do governments have a duty to ensure the basic necessities of life for homeless persons?

These are the questions that British Columbia Superior Court (BCSC) was recently asked to resolve, in Abbotsford (City) v Shantz, decided last year. The case concerned a group of homeless persons who set up a “tent city” in a public park in Abbotsford, BC, and began to essentially live at the park. This violated a city bylaw, and so the municipal authorities of Abbotsford took action to evict the homeless persons from the park. In response, the Pivot Legal Society and the British Columbia/Yukon Association of Drug War Survivors mounted a challenge based on the Canadian Charter of Rights and Freedoms, asking the BCSC to strike down the bylaw on the grounds of the life and liberty guarantee in section 7 of the Charter.

The response by the Courts was to both give the tent city the right to occupy the public space, and to maintain that the homeless had no positive right to government attention. The BCSC accepted the section 7 arguments laid out by the claimants, but in doing so rhetorically rejected any positive duty incumbent on government to provide basic necessities of life for the homeless. The decision hinged on this particular distinction – the Supreme Court of Canada has repeatedly held that the Charter only applies once the government has become “involved” in some sense, and does not oblige the government to actually act. Any appeal to the Charter, then, has traditionally failed if it argues that the government has a positive obligation to act, as for example the Court stressed in Vriend.

The rhetoric of the Supreme Court notwithstanding, the decision subtly accepts a kind of responsibility incumbent upon government to address homelessness. The judge “accepts that the framers of the Canadian constitution made a deliberate choice not to include property and related economic rights in the Charter” but nonetheless holds that the bylaws interfere with a Charter right to “shelter one’s self when there is no practicable alternative” (paras 176 & 188). To Hinkson J, it is the absence of action on the part of the government which makes the by-law in contravention of the Charter. In other words, a robust homeless shelter network in the City would have avoided the Charter infringement, and the city’s inaction in this regard makes it infringe on the Charter when trying to accomplish something else.

Attribution: Flickr, Michael Coghlan, Parklands Camp

Attribution: Flickr, Michael Coghlan, Parklands Camp

More broadly, Abbotsford is encouraging for those who would like to see Charter rights enforceable against government inaction. The decision tells us that if government is inactive in addressing socioeconomically marginalized groups, it can be held collaterally liable for preventing those groups from taking whatever means necessary in order to secure their rights. Abbotsford relied heavily, for example, upon Carter, where the Supreme Court used the idea of a “fundamentally important personal choice” to carve out a sphere of protected conduct at the end of a person’s life. Abbotsford took this idea into a new context, and in so doing expanded the possibilities for using the notion of “fundamental personal decisions” to protect human life and dignity, especially as regards the basic necessities of life or economic security.

Does this mean that we are moving towards a legally-recognized duty incumbent upon governments to ensure the basic necessities of life, or at least to address homelessness? Admittedly, the BCSC in Abbotsford showed nowhere near the zeal of past Canadian courts when they were enforcing a legally-recognized positive duty on government. In Nova Scotia, for example, the Courts used every ounce of political and legal leverage at their disposal to enforce educational rights for the Francophone minorities, including enforcing and supervising their own remedies. Thus there is still a long way to go before the Courts enforce a positive duty to address homelessness in the way that they currently enforce recognized positive rights in the Charter.

Nonetheless, we ought not minimize the political weight of a court decision in favour of a marginalized group of persons. Although the Court’s offering in Abbotsford was not generous – it allowed the tent city to remain in the city park, but only between 7PM and 9AM – a favourable ruling by a Court is its own blessing. It allows courts to award costs in favour of the claimants, which encourages public-interest litigation, and most importantly calls attention to and enhances the political leverage of the group asking for relief. We should welcome Abbotsford as a tentative step in the right direction.

Interested in learning more about poverty reduction and positive rights? We suggest these selected articles from our past issues: 

These articles are referenced as suggested reading.  It should not be taken to imply their authors share the views expressed above. 

 

The Senate as our National House

Ce billet s’insère dans la série thématique du blogue de la RDPDD Réflexions sur les pays industrialisés. / This post is a part of the JSDLP’s Reflections on the Global North blog series. 

Ghaith Hannibal El-Mohtar is a JSDLP Editor in his second year of law.  Follow him on Twitter @HE_Ghaith. 

Attribution: Tony Webster, Senate Chamber, Canadian Parliament Centre Block.

Attribution: Tony Webster, Senate Chamber, Canadian Parliament Centre Block.

“A nation without a vision has no hope.  A nation without a vision has no future. We now embark on this journey together, for the benefit of all people.  Miigwech [thank you].” Chief Elijah Harper, addressing the 1995 Sacred Assembly

Chief Elijah Harper (1949-2013) declared that he could not vote for constitutional change that did nothing for his people, and refused assent to the Meech Lake Accord.  This rejection in Manitoba’s Legislative Assembly became its defeat, and sparked a nationwide debate about Canada’s crimes and failures towards its indigenous peoples.

Years later as a Member of Parliament Chief Harper addressed another assembly, which he himself gathered.  A Sacred Assembly, bringing together Aboriginals and settlers in a spirit of healing and reconciliation. 3,000 people attended the only assembly of this kind in 1995, including Prime Minister Jean Chrétien.

I believe the time has come for an assembly like this in Parliament.  Here I argue that legislative representation for Canada’s Aboriginals should be constitutionally mandated.  I propose repurposing our dysfunctional senate as a starting point to doing so.

A disclaimer: I am not Aboriginal, and though I hope to propose a novel path towards respect and equity for Canada’s Aboriginals I do not speak for them.  I also do not intend their representation in the legislature to integrate sovereign Nations into the settler’s political structure. My intent is rather for this representation to operate in support of existing Nations’ rights to self-governance by remedying, somewhat, the immense power differential between them and settler colonial Canada.

This approach is not unheard of.  The Royal Commission on Aboriginal Peoples recommended an Aboriginal Parliament 20 years ago, a proposal gaining ground today.  New Zealand instituted Māori-only electorates in 1867, so the idea is at least as old as Canada.

Older still is the constitution we share with Aboriginals: the Royal Proclamation 1763 requires a nation-to-nation relationship between indigenous and settlers, and the ensuing Treaty of Niagara 1764 bound both as family in a shared covenant.  Neither was ever repealed and these obligations continue to stand as law.  We remain far from the path to treating Aboriginals as family.  Approached correctly though, I think repurposing the senate will at least bring us closer to the equal political footing that a nation-to-nation relationship requires.

Past governments have failed to maintain this shared constitution, let alone a nation-to-nation relationship.  After equivocating on his election pledge to respect First Nations’ right to a veto over what happens on their lands, the Trudeau government’s roadmap is no more promising.

This is the problem of disjointed political accountability. A nation-to-nation relationship cannot exist where the colonized nation depends on settler charity for respect.  By definition, a nation-to-nation relationship takes equal political rights not as an end but as its starting point.  In today’s asymmetry no dealings come close to such evenness in negotiating positions.  Few of Canada’s First Nations and bands can operate without funding or recognition from a government accountable not to them but to an overwhelmingly non-Aboriginal settler electorate.  This pegs the affirmation of Aboriginal rights to settler sentiment, and subsumes them into the triage of issues the federal government responds to.  The result is denial of rights and the relationship we have today.

This is why the current Liberal pledge of a nation-to-nation relationship is empty until accountability is equitable.  It can yield only more symbolic non-resolution, not a new way forward.

What Canada’s nation-to-nation relationship needs is constitutional change that levels the playing field between settler Canada and indigenous peoples.

We need a National House.  A constitutional mandate to put First Nations, Inuit, and Métis in control of the Senate would create a permanent forum for nation-to-nation dialogue in the spirit of the Sacred Assembly and the Royal Proclamation, and make cabinet accountable to more than the settler filled House of Commons.

This is not to mention the benefits for settlers.  Such a house would return currency to the Senate as a place for debate among our elders rather than patronage and mock aristocracy.  It would also help remedy the false virtue of Canadian multiculturalism, which as settler-colonialism by people of colour is hardly a form of progress.  In addition it would present an opportunity for nation building, and as a young country with an undefined national identity seizing it can only make our country more vibrant and resolute.

Attribution: Jill Watson, Cracked and Feather

Attribution: Jill Watson, Cracked and Feather

Such a change could be done with a constitutional amendment to add, between section 22 and section 23 of the Constitution Act 1867 a section requiring indigenous representation from half of the senators from Western, Central, and Atlantic Canada (51/105) and 2/3 of the senators from the territories to tip the balance.  Appointments should be allowed for any duly elected Indian status or Aboriginal membership holders, so as to include both treaty and non-treaty Aboriginals.  The modalities may differ to the extent they guarantee Canada’s Aboriginals a de facto veto over Parliament’s every bill, and equality within the upper chamber. It should naturally also permit deliberations in indigenous languages to help their revitalization.

A National House should not be the only site of a nation-to-nation relationship.  Many nations, like the Kahnawà:ke Mohawks, have elements that categorically oppose the federal government. Such peoples should retain the right to say that those in Parliament do not speak for them without derogation to their sovereignty.

Keeping the promises of the Royal Proclamation and Treaty of Niagara is no small task.  At the very least, I believe a National House can help us move towards the hope, future and guiding vision that Chief Elijah Harper wanted for this land and its people, and the respect and dialogue that these treaties stand for.

Interested in learning more about indigenous rights? We suggest these selected articles from our past issues: 

These articles are referenced as suggested reading.  It should not be taken to imply their authors share the views expressed above. 

Energy East Pipeline: The Good, the Bad, and the Coderre

This post is a part of the JSDLP’s Reflections on the Global North blog series. / Ce billet s’insère dans la série thématique du blogue de la RDPDD Réflexions sur les pays industrialisés.

Charles-Philippe Lamy is an associate editor with the JSDLP. He is currently in his first year at the McGill Faculty of Law. He recently completed a BA in politics and history at the University of Toronto. 

Attribution: David Hiser, San Juan River Oil Spill

Attribution: David Hiser, San Juan River Oil Spill

In late January the Montreal Metropolitan Community (MMC) rejected TransCanada’s East Energy Pipeline project. The proposed pipeline would have transported oil from Alberta to New Brunswick for export and domestic sale. Montreal Mayor Denis Coderre, the current President of the MMC, explained that the committee’s decision was fuelled by its concerns that the economic benefits created by the pipeline are far outweighed by the potential cost of cleaning up the pipeline’s oil spill.

There does not appear to be a simple answer to whether the pipeline should be built. Admittedly, the economic benefits are great. The construction of the pipeline is estimated to create 14,000 jobs over the expected nine years it will take for construction to be complete. The construction is expected to add nearly $17 billion to the Canadian economy, the lion’s share being distributed across New Brunswick, Quebec, and Ontario. Proportional to population, by far the greatest benefit will be to New Brunswick. The pipeline will bolster its economy by an estimated $6.5 billion dollars in revenue over the next forty years. Unexpectedly, Liberal Premier Brian Gallant has given the project strident support.

Charles2

Attribution: Albert Herring, Oil Arrives on Bon Secour

However, those wary of the Energy East pipeline project also have good arguments. Naturally, while the economic arguments for the construction are convincing, there is an environmental threat threshold beyond which no economic gains are justifiable.  A single litre of oil can contaminate as much as a million litres of groundwater, and despite improvements pipelines still spill. Additionally, there is the outstanding issue of non-consent from Manitoba First Nations, the Mohawk Council of Kanesatake, and Ontario First Nations leaders. However, the facts remain that transporting crude oil to Atlantic Canada by an ocean freighter, by train or by truck remains more environmentally taxing. These options will either increase fossil fuel emissions (truck) or seriously increase the risk of a spill (train). By contrast, the 2014 Annual Report of the Transportation Board of Canada revealed that in 2014 there were only 32 pipeline incidents with a release of crude petroleum. In addition, when pipelines do spill, pipeline technology has advanced to the point where the spillage can be comparatively quickly cauterized and the damage minimized. For instance, of the total pipeline incidents that resulted in spillage, 89.4% of incidents resulted in less than 25 cubic meters of release, and 75% resulted in less that 1 cubic meter of release. By contrast, in the alternative transports mentioned above it may prove difficult or impossible to contain a spill.

Another criticism, that the construction of the Energy East pipeline will endanger our international environmental commitments, is rather tenuous. At the recent COP21 Summit in Paris, Environment Minister Catherine McKenna endorsed the target of 1.5 degrees Celcius above pre-industrial levels as the new threshold the worldwide community should aim for. If the federal and provincial governments are going to legislate with the 1.5 C target in mind, or even the 2 C target presently endorsed by the United States, it does not appear that the Energy East Pipeline will be the project that makes or break our ability to meet the target. Its influence is instead negligible. Shifting Canada away from fossil fuels and towards renewable energy will not be affected by the construction of a pipeline, as the pipeline does not increase consumption but only changes the location from where the product emerged. If we are going to achieve substantive gains in meeting our international environmental goals, then we must do so through more aggressive investments into renewable energy, not by fighting over which location to extract and transport fossil fuels in a way that leaves no change in domestic consumption.

We all agree that we must wean ourselves off oil, but since this will take at least a century or two we have a clear interest in acting smart on oil while we still use it and need it. The pipeline seems to allow us to maximize our national wealth, aid the economically staggering Atlantic Canada and mention Alberta, and reduce our investment in foreign regimes with notorious human rights abuses, while also employing a technology that is far less damaging than the alternative transporting methods. And while it is disappointing that Mayor Coderre does not agree, we should hope that the federal government remembers that the agreement of municipalities is a good but ultimately unessential factor in national energy policy under our constitutional structure. If a restructured National Energy Board assesses that the pipeline is sufficiently safe and the federal government joins Premiers Notley, Wall, and Gallant in supporting its construction, then we should feel comfortable stating to Mayor Coderre that Montreal cannot stand in the way of the Canadian interest.

Interested in learning more about law, oil, and sustainability? We suggest these selected articles from our past issues: 

 These articles are referenced here for the reader’s convenience.  It should not be taken to imply that their authors share the views expressed above. 

 

Mayor May Not: The Limits of the Global Parliament of Mayors

Ce billet s’insère dans la série thématique du blogue de la RDPDD Réflexions sur les pays industrialisés. / This post is a part of the JSDLP’s Reflections on the Global North blog series. 

Adrian Pel is a first year student at McGill’s Faculty of Law and serves as an associate editor of the JSDLP. He recently completed an MA in Geography at the University of Toronto.

A potential hotbed of global governance? Source: Wikimedia Commons

A potential hotbed of global governance? Source: Wikimedia Commons

In the popular imagination, city governments tackle banal everyday issues such as snow, potholes and garbage. However, what if cities were more ambitious than this? What if cities, and their mayors, were frontline actors in addressing issues of sustainable development? Such is the premise of a new experiment in global governance whose agenda of issues includes climate change and environmental sustainability.

In September, the Global Parliament of Mayors (GPM) will convene for its inaugural meeting in The Hague. The brainchild of political scientist Benjamin Barber, the GPM is a forum at which mayors will discuss strategies for tackling challenges that range from climate change to pandemic disease. Urbanist Richard Florida describes the GPM as a “UN-like organization” at which cities can disseminate knowledge and share strategies for implementing changes. Other proponents include a cast of mayors from around the world. The combination of academics and mayors gives the GPM an air of innovation, expertise and excitement.

Boris Johnson – London Mayor, British MP, and now global parliamentarian? Source: European Cyclists Federation.

Boris Johnson – London Mayor, British MP, and now global parliamentarian? Source: European Cyclists Federation.

In terms of addressing issues such as climate change and pollution, Barber’s focus on the city is sensible. Cities are estimated to account for 75 percent of global CO2 emissions. Moreover, dense clusters of factories in urban areas tend to produce catastrophic levels of smog that affect both the local area and surrounding regions, as maps of Chinese industrial cities illustrate.

Unfortunately, there are reasons to be sceptical about the GPM’s efficacy in matters of sustainable development. Whereas the UN and ‘real’ parliaments can pass binding motions, the GPM does not pass any such resolutions or have powers of coercion to enforce promises made by members. Instead, the GPM has only a declaration of the rights of cities and citizens penned by Barber that serves as a sort of municipal manifesto. Unfortunately, this declaration is not accompanied by any set of responsibilities or clear goals. Instead, it is accompanied by a laundry list of agenda items, of which sustainable development is but one.

While the GPM means well, its justification rests upon two related premises that both appear flawed. The first is that mayors are nonpartisan pragmatists. The second is that mayors are itching to unleash ingenious local ideas upon other cities, if only they had the opportunity.

On the first premise, Barber cites former New York City mayor Fiorello La Guardia’s axiom that “There is no Democratic or Republican way of fixing a sewer”. As I have examined in a previous blog post, whether or not a mayor decides to take action and fix a broken sewer (figuratively or indeed, literally) is political decision in which environmental politics and fiscal conservatism collide.

Given that addressing issues in the field of sustainable development requires significant, widespread collaboration in ambitious reforms – especially to address free rider problems ­– a non-binding discussion forum is not conducive to producing binding collective action. As mayors must both seek re-election and interact with city councils, a global parliament of such figures would, if anything, be more constrained the U.N. whose diplomats are not as directly exposed to everyday politics and lobbying. Accordingly, electoral pressure will probably dissuade mayors from leading the vanguard of sustainable development policy.

The second premise Barber advances is that mayors are agile executives bursting with ideas. This premise envisions mayors as tortured geniuses constrained by constitutional limits on the powers of cities. The GPM envisions a dichotomy between “dysfunctional” nation states, and eager but bureaucratically shackled cities. Here the GPM does have something to offer. It can help cities lobby for reforms that will both increase their powers (e.g. taxation, planning powers), and to develop ‘strong mayor systems’ where there is a greater level of executive power over city council. However, in the context of challenges such as climate change and toxic pollutants, even if cities (and mayors) possess more extensive powers, action will not spontaneously occur especially given the political constraints that I have discussed.

With this criticism made, one must not be cynical of the role that cities can play in combatting climate change and addressing more localized issues such as smog and toxic pollution. Rather, I contend that cities will likely be more effective in this area if they focus on specific issues and channel their efforts through institutions that are more focused than the GPM. One such specialized institution is C40, a group of megacities that focuses on producing research and developing policies specifically targeted at greenhouse gas emissions. While the GPM may emulate C40s approach, its fixation on heroic individualism, broad remit and its distracting secondary objective of reforming the constitutional powers afforded to cities make it a poor vehicle to address issues of sustainable development.

Global North and Global South: The Principle of Common but Differentiated Responsibilities – Part II

This post is a part of the JSDLP’s Reflections on the Global North blog series. / Ce billet s’insère dans la série thématique du blogue de la RDPDD Réflexions sur les pays industrialisés.

Madhav Mallya is a second year Doctor of Civil Law student at the Faculty of Law, McGill University, writing on international investment agreements and sustainable development.

In the first part of this blogpost series, I critiqued the stance of developing countries in promoting the principle of Common but Differentiated Responsibilities (CBDR) as being a solution to their economic development goals.  I argued that, based on certain historical factors, CBDR could prove detrimental to the socio economic development of such nations and instead there needs to be an even greater emphasis on the transfer and utilisation of green technology in conjunction with CBDR. This post aims to develop this idea further, highlighting the urgent need to effectively integrate green technology into CBDR practices.

Recent studies have observed that there are numerous limitations to financing adaptation to climate change in developing countries. These include stark differences between the realities of allocated budgets to fund such adaptation and pledges made on a global level, the fact that the sources of such financing are often made up of loans and not grants, the lack of resources in developing countries to implement the programmes that are foreseen for adaptation to climate change, and lastly a lack of clarity to label the share of aid aimed specifically at climate change. (Edwin Zacai, Marine Lugen, Brussels; forthcoming 2016 in Archiv Fur Reichts- und sozialphilosophie, Beiheft).

These trends are a reflection of contemporary global attitudes towards developing concrete structural mechanisms to battle climate change in developing countries. In a manner of speaking, it is but natural that developing nations would zealously encourage industrial growth in order to create jobs, improve overall standards of living and enhance their national economic stability. Yet, we cannot afford to neglect such trends, since they highlight the lack of integrated and sustainable mechanisms to balance out the ill effects of CBDR emissions with the import and development of green technology.

Therefore, the main and immediate challenge before the global community of nations is understanding that CBDR in isolation is not a sustainable method of socio-economic advancement in developing countries and that it should be viewed in conjunction with other methods of combating climate change, most notably, the import of green and sustainable technologies. This is easier said than done and would require the promulgation of a model system to effectively weave CBDR and green technology into a mutually functioning system. It is important to try and develop ideas towards the creation of such systems, notwithstanding the complex political and socio-economic dynamics involved. Perhaps the first step towards such a goal should be an honest and conscious recognition by the global north of domestic green initiatives in the global south, with an attempt to co-fund and partner such initiatives, aiming to promote green technology as a mainstay theme.

For example, France and India recently signed a MOU to expand cooperation in the field of solar energy and other renewable energies. A joint statement issued by the parties emphasized France’s support for India’s ambitious endeavours. (Cleantechnica, April 14th, 2015).  For Indian domestic policy makers, the path ahead lies in actively aligning this cooperation with India’s aims to drastically reduce its emissions in a few decades, thus creating a continuous trajectory towards sustainable economic and industrial growth.  It is important to realise that in the midst of the rhetoric and dialogue on green technology transfer in international relations, the eventual onus of implementing and developing green policy is actually on domestic governments.

To that effect, the 2014 decision of the Indian government to roll together the ministries of coal, power and renewables is commendable and welcome, with the aim of viewing energy policy through an integrated prism. (Indian Express, Vikram. S. Mehta, May 4th 2015).  Nevertheless, since India is one of the world’s highest coal based emitters, a major challenge will be reducing domestic industries reliance on thermal energy and increasing reliance on solar energy or other forms of renewable energy. In a new and encouraging development, on 22nd January 2016, it was announced by India’s energy minister that solar tariffs were now cheaper than coal powered generation. (Cleantechnica, January 22nd, 2016).

Through these blogpost series, and especially through the example above, my aim is to promote the understanding that the integration of CBDR and green technology transfer is a complex phenomenon which depends on financing, availability of infrastructure and lastly the willingness of primarily  national governments and secondly,  the international community to create honoured commitments.

Is sustainable development trapped in a rat race?

This post is a part of the JSDLP’s Reflections on the Global North blog series. / Ce billet s’insère dans la série thématique du blogue de la RDPDD Réflexions sur les pays industrialisés

Stéphanie is a third year law student in the combined civil law and common law program at McGill University. She is the Managing Editor of volume 12 of the Journal of Sustainable Development Law and Policy

“We in the rich nations, with our growing social inequality and wasteful use of resources, can no longer present ourselves as the world’s teachers,” Aart De Geus, Chairman of the Bertelsmann Stiftung

via Wikimedia Commons

via Wikimedia Commons

In September 2015, 34 heads of states gathered in New York to sign the UN’s new sustainable development goals. The main objective by 2030?

Wait for it…

A little longer…

Ok, enough.

The eradication of poverty—of course!

However, perhaps unsurprisingly, no innovative plan of action was put forth. The main strategy for eradicating poverty is the same one used for the past 70 years: growth! And this, readers, despite this approach being largely unsuccessful. Seriously, since 1980, the global economy has grown by 380%, but the number of people living in poverty on less than $5 a day has increased by more than 1.1 billion. That’s 17 times the population of Britain. So much for the trickle-down effect!

Economically, growth is no longer a viable option for poverty eradication. Look at the consumption habits of your fellow citizens and western governments: we have already grown too much. As a matter of fact, scientists are now telling us that we’re blowing past planetary boundaries at breakneck speed. And the hard truth is that this global crisis is due almost entirely to overconsumption in rich countries.

Still not convinced?

Ok, let me be blunt.

Right now, as you are reading this amazing blog post, our blue planet only has enough resources for each of its inhabitant to consume 1.8 global hectares annually—global  hectares are a standardized unit that measures resource use and waste.

This 1.8 hectares is roughly what the average person in Ghana or Guatemala consumes. By contrast, North American citizens such as Canadians and Americans consume about 8 hectares per person while our European neighbours consume 4.7 hectares. Undoubtedly, this is far more than our fair share.

So, how can intelligent people from 34 OECD states, having been advised by leading economists sit down in a room for hours and conclude that no change is needed because what has not been working…will end up working?

Albert Einstein described insanity as doing the same thing over and over again and expecting different results: how can growth, after 70 years of failure, still be the correct tactic for eradicating poverty by 2030?

Well, it can, if sustainable development is trapped in a rat race.

Rat race: an endless, self-defeating, or pointless pursuit. It conjures up the image of the futile efforts of a lab rat trying to escape while running around a maze or in a wheel.

Getting out of the rat race: breaking the status quo

The Economist Peter Edward argues that instead of pushing poorer countries to “catch up” with rich ones, we should look into ways of getting rich countries to “catch down” to more appropriate levels of development. One where people don’t over-consume for a living while others under-consume to their deaths.

Really, catching down would probably lead to more beautiful panoramas for the poorest: societies where people live long and happy lives at relatively low levels of income and consumption; where they live not as basket cases that need to be developed towards western models, but as exemplars of efficient living.

This catching down scheme reads well on paper. But, where’s the money at?

Weirdly enough, corporations are not always the centre of the attention when the topic of poverty is on the table. In fact, they are rarely featured in UN’s sustainable development reports, even if many have more wealth and greater reach than governments.  Truth be told, asking questions about the rich seems to be portrayed—and this since the era of Kings and Queens—as envy.

Contrarily, asking questions about the poor, the have-nots, is considered sensible and kind-hearted and sanctioned by most religions as highly moral.

But, frankly, no problem can be solved so long as political institutions do not recognize that the wealthiest—the 1% super rich and the mechanisms that help them remain as such—have  a role to play in causing and sustaining poverty.

So, readers.

Shall we slow down voluntarily or let climate change force us to it?

How long can we go on ignoring the laws of nature?

As the powerful met in the Empire State discussing a brighter future for 2030— a year that most of them will not live long enough to see—reaching a higher level of understanding and a greater consciousness about poverty and its causes should have been the prevalent strategy.

Human potential can still thrive and luxury can still be sought while sustainability is achieved.

However, the status quo must be broken.


Homelessness and The Law

Ce billet s’insère dans la série thématique du blogue de la RDPDD Réflexions sur les pays industrialisés. / This post is a part of the JSDLP’s Reflections on the Global North blog series. 

Sira Baldé is a second year McGill law student and third culture kid from Senegal who is passionate about social justice. She writes in her spare time and is an avid yogi.

In North American cities, including Montreal, homelessness is increasingly criminalized. Criminalization laws manifest in a variety of ways including the outlawing of sitting, sleeping in vehicles or outdoors, lying down, “hanging out”, sharing food, and camping in various municipalities’ public spaces. More specifically, according to a 2014 report by the National Law Center on Homelessness & Poverty, in the U.S., 53% of cities prohibit sitting or lying down in particular public places and 43% of cities prohibit sleeping in vehicles. These laws exist in spite of the fact that North American shelters face a critical shortage of beds.

The criminalization of homelessness can have dire consequences on the poorest in society. In March 2014, the arrest of a 56 year old homeless veteran, Jerome Mardough, led to his demise. He had taken refuge on a cold winter night in a public housing stairwell in Harlem and was subsequently arrested for trespassing. Due to his inability to pay the $2500 bail, he was sent to Rikers Island Prison, placed and forgotten in a hot cell where he died from hyperthermia. For the full story, click here.

Research shows in Montreal and other North American cities, that criminalization is ineffectual and very often results in the criminalization of persons with no previous criminal history. This has the dual effect of forcing homeless people with little to no means to incur court related fees and is also costly to the tax payer. Additionally, criminal convictions can bar access to public benefits, employment, or housing, all of which are especially needed by the homeless. A 2014 analysis by Creative Housing Solutions on the economic impact of providing homeless people with permanent housing (in the US) found that tax payers would save $149 million in reduced law enforcement and medical care costs over the next decade.

A new anti-homeless measure that is gaining popularity is defensive architecture. Defensive architecture takes many forms, from narrow, slanted bus shelter seats that prevent one from lying down comfortably to sharp metal studs placed in front of buildings and under bridges. In a Guardian article, Alex Andreou, a former homeless person, speaks of the difficulty he encountered as a homeless person when trying to find shelter. Not only are there very few shelters which offer temporary refuge for the night, but in order to get such shelter, a referral by a local agency is needed. To be the recipient of such a referral, he was asked to demonstrate “sufficient local connection”. Establishing such a connection entails providing bills showing a local address. The latter can prove an unrealistic feat for homeless people, many of whom are transient before becoming homelessness.

Speaking from personal experience, Andreou argues that defensive architecture perpetuates the dehumanization and social exclusion that characterizes the homeless experience. The rise in the use of defensive architecture should at the very least be met with sutained efforts to end homelessness by increasing the availability of affordable housing and prohibiting the criminalization of homelessness.

In August 2015, the Department of Justice released a statement of interest in Bell v. City of Boise – a case brought by homeless plaintiffs who were convicted under city ordinances that criminalized sleeping in public. The US federal government stated that making it a crime for homeless people to sleep in public places, when there is insufficient shelter space in a city, is unconstitutional. The US took the position that depriving persons of sleep in public spaces on nights where there is a shortage of shelter space in Boise for the homeless population constitutes cruel and unusual punishment in violation of the Eight Amendment.

For sustainable development to occur where homelessness is concerned, an in depth analysis is required as well as a change in the mentality surrounding homelessness that focuses more on housing and less on punishing or excluding the homeless. Only through the implementation of a humane and efficient intervention can homelessness significantly reduce as a growing societal ill in North America.

GLOBAL NORTH AND GLOBAL SOUTH: THE PRINCIPLE OF COMMON BUT DIFFERENTIATED RESPONSIBILITIES

This post is a part of the JSDLP’s Reflections on the Global North blog series. / Ce billet s’insère dans la série thématique du blogue de la RDPDD Réflexions sur les pays industrialisés.

Madhav Mallya is a second year Doctor of Civil Law student at the Faculty of Law, McGill University, writing on international investment agreements and sustainable development.

From June 2013 to May 2014, I was a law researcher working for a university in New Delhi, India. Residing on the campus of that university, I suffered from a continuous chronic cough and occasional respiratory distress for the first few months. The cause: polluted air from factories in the vicinity.

Aditya Thaokar, Burning Garbage,.

Aditya Thaokar, Burning Garbage, Wikimedia Commons

Developing nations like India and China often adopt a path of rapid industrialisation in pursuit of economic prosperity. While I have been witness to India’s increasing economic progress for the past two decades and do not deny the role of industry in contributing to her economic development, the fact of the matter remains that such industrialization often comes at a huge cost to the environment as well as healthy human and animal life.

Within the global north-south debate on climate change and sustainable development, such as the recently concluded COP21 in Paris, a focal point is the industrial progress of developing nations. The principle of common but differentiated responsibilities (CBDR) found in Article 10 of the Kyoto Protocol and Principle 7 of the Rio Declaration allows developing nations to continue polluting the atmosphere in the name of economic development. Global South Leaders continue to champion it. In a recent editorial written for the Financial Times, Indian Prime Minister Narendra Modi argued that the rich world must take greater responsibility for climate change. Stating that “Justice demands that carbon curbs should not limit poorer nations’ ability to grow”, he goes on to say that the lifestyles of a few must not crowd out opportunities for many still on the first rungs on the development ladder. Today the Indian and Chinese capitals are amongst the most polluted cities in the world, as a result of increased fossil fuel use.

The 2015 Paris Agreement (the Agreement) provides for developed country parties to take the lead in pursuing global mitigation measures while developing country parties are encouraged to enhance their mitigation efforts. At the same time, the Agreement recognizes that climate change requires the widest possible co-operation by all countries in an effective international response.

In my opinion, the notion of “co-operation” raises the question of whether adhering to the principle of common but differentiated responsibilities is sustainable in the long run, given that the socio-economic needs of nations such as India and China require large scale industrialisation. For example, there is a growing school of thought in India which argues that the country’s emphasis should be on developing manufacturing industries, attested to by the “Make in India” initiative promoted by its government around the world. Given that India is presently one of the world’s major greenhouse gas emitters (Discussion Paper / Deutsches Institut für Entwicklungspolitik, 2014), the prospect of allowing increased emissions in an already polluted country is worrying.

I am not arguing that developing nations should forfeit their Right to Development. However, many developing nations are characterised by a high density of population, geographical limitations, environmental degradation and low human development indexes, due to various historical reasons beyond the scope of this blogpost. Increased industrialisation might benefit only a small section of the population to the detriment of the environment and weaker communities such as industrial workers and indigenous populations, as has been the case in India and China.

CBDR, in essence, reinforces the strong socio-economic distinctions between the global north and global south. While allowing developing nations to augment their economic and infrastructural growth, are we allowing them to repeat the mistakes of the global north who were the foremost contributors to increased greenhouse gas emissions and fossil fuel use? An important aspect of the principle of CBDR is financial assistance and technological transfer (CISDL, Montreal). Therefore, perhaps it is necessary that our thoughts on CBDR start including the transfer and financing of green technology as an integral part of the concept, as well as encouraging developing nations’ initiatives in the arena of green technology.

Smog in skies of Delhi, Wikimedia Commons

Smog in skies of Delhi, Wikimedia Commons

India has now begun promoting the use of solar technology and is attempting to become the world’s highest consumer of solar power by 2022 (Financial Times, January 4th 2016). While ambitious both in infrastructural and financial terms, it seems a worthy initiative for the global north to encourage and support in conjunction with CBDR. Having suffered first hand from the ill-effects of air pollution, I remain skeptical of implementing the principle of CBDR in isolation.

(Part II of this blogpost shall appear later in January 2016, where I shall further develop my argument on using CBDR as an alternative means to promote industrial development in the developing world.)

 

Enforcement, the EU’s environmental glass ceiling

Ce billet s’insère dans la série thématique du blogue de la RDPDD Réflexions sur les pays industrialisés. / This post is a part of the JSDLP’s Reflections on the Global North blog series. 

Rosine est une étudiante de première année en droit à l’Université McGill. Elle détient un baccalauréat en sciences politiques lors duquel elle a eu la chance de travailler au sein du projet Dialogue pour un Canada vert, ainsi que pour le Secrétariat de la Convention sur la biodiversité biologique, une branche du programme des Nations Unies pour l’environnement

Depuis maintenant plusieurs années, l’environnement est un enjeu politique majeur. Cet engouement suscite des réactions différentes selon les conditions socioéconomiques et les régions géographiques. Certains états ont signé des traités internationaux, tel le protocole de Kyoto. De ces états, certains sont allés plus loin et ont légiféré, intégrant ainsi la protection de l’environnement dans leur cadre légal national et/ou supra national.

L’Union européenne (UE) est un modèle pour ceux qui essaient de comprendre les éléments qui rendent un cadre juridique qui régit la protection de l’environnement efficace. En effet, l’UE a développé des directives qui assurent que certains standards environnementaux soient imposés aux pays membres. Par exemple, la Directive 2009/90/EC établit un cadre pour une politique communautaire dans le domaine de l’eau. Par ailleurs, la Commission européenne est responsable de superviser le respect de ces directives et la Cour européenne de Justice joue aussi un rôle important, sanctionnant les pays membres concernés lorsque la Commission lui fait signe qu’une directive n’est pas respectée.

Ainsi, nous pouvons constater que, d’une part, l’UE démontre une volonté de prendre ses responsabilités envers l’environnement en adoptant ces directives. D’autre part, cette volonté se matérialise lorsque les pays membres — volontairement ou contraints par les sanctions de la Cour européenne de Justice — mettent en œuvre les directives. De la conceptualisation à la mise en pratique, aucun élément ne semble empêcher l’UE d’être verte. Ce tableau semble sans défaut. Certains diraient même qu’il est inspirant.

Mais pourquoi s’attarder à un monde que trop parfait ? « Regardons ailleurs, regardons là où sont les problèmes ! » diraient certains.

Infringement per member state. Soure: European Commission

Infringement per member state. Soure: European Commission

While the European Union (EU) is probably one of the best examples of a proactive political entity taking environmental initiative, there is yet one (at least) obstacle that it has not succeeded to transcend: uniform enforcement. Indeed, enforcement of environmental directives is not homogenous and ranges over a spectrum of possibilities. Depending on the policy area, enforcement varies and certain member states even suffer from a “weak or merely formal transposition” of EU regulations at the national level. Indeed, “systematic non-compliance [with directives] at the enforcement and the application stage” happens.

For example, since now 2010, Belgium has been involved in water waste treatment management issues. That year, Belgium violated the Urban Waste Water Treatment Directive (91/271/EEC) and was issued a fine by the Commission in order to remedy to this infringement. However, Belgium did not respect the terms of the Commission’s letter of formal notice. Hence, the European Court of Justice got involved in order to enforce fines that had been issued to Belgium by the Commission. In other infringement cases, Belgium was called upon for not respecting EU water legislation in 2011 and 2012, for incorrectly implementing water services in 2011 and for having problem with treating urban wastewater in 2013. This example only depicts water related problems over the last 5 years, but Belgium’s enforcement issues’ scope is larger in importance and over time. Not only that, but Belgium is not even the EU member state with the highest levels of enforcement problems. Indeed, Greece is renowned to be one of the member states with the highest number of infringements.

BBC News Headline

Source: BBC News

While thinking about sustainable development in more “developed” countries, people tend to think that it is a tackled issue. The reasoning seems to be the following: Countries have the means to remedy to environmental issues – and hence the capacity to make change happen. However, like I showed above, it is not necessarily the case that the “developed” world has it all figured out. Indeed, Belgium is only one example of lack of enforcement of environmental EU directives. All EU countries are victims of such imperfections to different degrees, even the ones where the environment represents a more popular and supported issue like Austria, Germany, the Netherlands, etc.

Maybe it comes as a surprise to some that enforcement of EU regulations is imperfect. Since the EU forms part of the “developed” world, certain people would think it is immune from such problems. But it is the case, and one realises that there is a lot to be done even in the EU – this supposed environmental regulatory paradise that I depicted above. Some parts of the world may be economically richer, but they have still not transcended the enforcement dilemma of environmental regulation. Instead of pointing fingers towards emerging economies, we need to be humble and recognise that there is still a lot to be done in the more “industrialized”  part of the world.

Beach cleanup in Athinios – Greece (Source: WIkimedia Commons)

Beach cleanup in Athinios – Greece (Source: Wikimedia Commons)

 

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