SDG 12 on Ensuring Sustainable Consumption and ... Icons/SDG_12_Consumption...2016/07/30 · 12.2 By 2030, achieve the sustainable management and efficient use of natural resources

Issue Brief

No 12015

Distributing the benefits from REDD+ The Case of Viet Nam

Par By Katherine Lofts MA (McGill) LLB BCL (McGill) BA

(Victoria) Programme Coordinator CISDL

Dr Markus Gehring JSD (Yale) LLM (Yale) Dr iur (Hamburg) MA (Cantab)

University of Cambridge

Freedom-Kai Phillips MA (Seton Hall) LLB (Dalhousie) CISDL

William B Shipley LLBBCL (McGill) BA (Northwestern) CISDL

Issue Brief 2016

SDG 12 on Ensuring Sustainable Consumption and Production Patterns Contributions of International Law Policy and Governance

SDG 12 Sustainable Consumption and Production

1

____________________________________________________________

SDG 12 ON ENSURING SUSTAINABLE CONSUMPTION AND PRODUCTION

PATTERNS CONTRIBUTIONS OF INTERNATIONAL LAW POLICY AND GOVERNANCE

Dr Markus Gehring JSD (Yale) LLM (Yale) Dr iur (Hamburg) MA (Cantab) University of Cambridge

Freedom-Kai Phillips MA (Seton Hall) LLB (Dalhousie) CISDL William B Shipley LLBBCL (McGill) BA (Northwestern) CISDL

____________________________________________________________ I INTRODUCTION Poverty and environmental degradation are inexplicably linked and unsustainable consumption and production patterns (particularly in industrialized economies) are a key aggravating factor for income imbalances and deterioration of the natural environment1 Sustainable consumption and production (SCP) defined as ldquothe use of goods and services that respond to basic needs and bring a better quality of life while minimizing the use of natural resources toxic materials and emissions of waste and pollutants over the life cycle so as not to jeopardize the needs of future generationsrdquo2 The inclusion of sustainable consumption and production as Sustainable Development Goal 12 (SDG 12 Sustainable Consumption and Production) builds upon early recognition of the importance of sustainable use of natural resources in the Stockholm Declaration3 and the evolving sustainable development corpus which reinforces the recognition that consumption and production patterns must be changed as essential prerequisites to more sustainable development4 This Issue Brief provides a survey of existing intersections under international law which are pertinent to the effective implementation of SDG 12 Sustainable Consumption and Production Relevant international and regional instruments are summarized central policy and governance challenges which are implicated in implementation of SDG 12 Sustainable Consumption and Production are outlined innovations to overcome identified obstacles are suggested and opportunities for law and governance solutions are explored as tentative collusions While not seeking to be comprehensive the Issue Brief suggests that effective achievement of SDG 12 Sustainable Consumption and Production necessarily involves interlinkages related to trade waste and chemical management corporate social responsivity (CSR) public procurement and environmental education requiring comprehensive consideration of each individually and synergistically in transitioning towards a green economy

1 Report of the United Nations Conference on Environment and Development 3ndash14 June 1992 vol I Resolutions Adopted by the Conference (United Nations publication Sales No E93I8 and corrigendum) resolution 1 annex II at Chapter 4 [Agenda 21] 2 Norwegian Ministry of the Environment (1994) Report of the Symposium on Sustainable Consumption Oslo Norwegian Ministry of the Environment 3 Stockholm Declaration on the Human Environment 16 June 1972 UN Doc AConf4814Rev 1(1973) 11 ILM 1416 (1972) Principle 21 MC Cordonier Segger and A Khalfan Sustainable Development Law Principles Practices and Prospects (Oxford Oxford University Press 2004) 46-50 4 UNGA The Future We Want Report of the United Nations Conference on Sustainable Development UN Doc ARES66288 (27 July 2012) para 4 [Rio+20]


2

II CONTRIBUTION OF INTERNATIONAL LAW POLICY AND GOVERNANCE TO SDG 12 ON SUSTAINABLE CONSUMPTION AND PRODUCTION International law and policy instruments play a key role in influencing consumption and production patterns and are essential to achievement of SDG 12 Sustainable Consumption and Production Changes in the patterns of consumption and production towards sustainability implicitly requires a balancing of the ability to satisfy basic human needs and address quality of life concerns while minimizing pollution and resource utilization through adoption of a life-cycle approach and informed through considerations of future generations5 Following inclusion in Chapter 4 of Agenda 21 SCP was established as an important policy priority resulting in consistent consideration reference and integration into decisions of the UN Commission on Sustainable Development (UNCSD)6 the Johannesburg Plan of Implementation (JPOI)7 and the outcome document of Rio+20 the Future We Want8 In addition the ILA New Delhi Principles of International Law on Sustainable Development reaffirm the duty of States to ensure sustainable use of natural resources and recognize key

5 Lucia A Reisch John Thoslashgersen (eds) Handbook of Research on Sustainable Consumption (Cheltenham UK Edward Elgar 2015) at 55 6 UN ldquoReport of Commission on Sustainable Development on its Second Sessionrdquo ECN17199420 (12 July 1994) para 46 52 56 UN ldquoReport of Commission on Sustainable Development on its Third Sessionrdquo ECN17199536 (11-28 April 1995) para 32 UN ldquoReport of Commission on Sustainable Development on the Seventh Sessionrdquo ECN17199920 (1 May 27 July 1998 and 19-30 April 1999) para 1 3 5 7-9 12 Annex UN ldquoReport of Commission on Sustainable Development on the Eighth Sessionrdquo ECN17200020 (30 April 1999 and 24 April-5 May 2000) Decision 84 Decision 86 7 UN ldquoJohannesburg Declaration and Johannesburg Plan of Implementationrdquo Report of the World Summit on Sustainable Development ACONF199L1 (26 Aug-4 September 2002) para 14-23 [JPOI] 8 Rio+20 para 4 58 61 224-226

Box 1 SDG 12 on sustainable consumption and production ndash Ensure

sustainable consumption and production patterns

121 Implement the 10-year framework of programmes on sustainable consumption and production all countries taking action with developed countries taking the lead taking into account the development and capabilities of developing countries 122 By 2030 achieve the sustainable management and efficient use of natural resources 123 By 2030 halve per capita global food waste at the retail and consumer levels and reduce food losses along production and supply chains including post-harvest losses 124 By 2020 achieve the environmentally sound management of chemicals and all wastes throughout their life cycle in accordance with agreed international frameworks and significantly reduce their release to air water and soil in order to minimize their adverse impacts on human health and the environment 125 By 2030 substantially reduce waste generation through prevention reduction recycling and reuse 126 Encourage companies especially large and transnational companies to adopt sustainable practices and to integrate sustainability information into their reporting cycle 127 Promote public procurement practices that are sustainable in accordance with national policies and priorities 128 By 2030 ensure that people everywhere have the relevant information and awareness for sustainable development and lifestyles in harmony with nature 12a Support developing countries to strengthen their scientific and technological capacity to move towards more sustainable patterns of consumption and production 12b Develop and implement tools to monitor sustainable development impacts for sustainable tourism that creates jobs and promotes local culture and products 12c Rationalize inefficient fossil-fuel subsidies that encourage wasteful consumption by removing market distortions in accordance with national circumstances including by restructuring taxation and phasing out those harmful subsidies where they exist to reflect their environmental impacts taking fully into account the specific needs and conditions of developing countries and minimizing the possible adverse impacts on their development in a manner that protects the poor and the affected communities


3

principles including the precautionary approach public participation and importantly integration which emphasizes the interrelationship of socio-economic and environmental objectives in development decisions9 These principles can serve to guide policy-makers seeking useful intervention points to secure more sustainable consumption and production patterns To foster or frustrate all targets under SDG 12 Sustainable Consumption and Production particularly SDG 121 on establishment of 10 Year Framework of Programmes (10YFP) on Sustainable Consumption and Production the manner in which global trade agreements are interpreted and engaged can be important Open nondiscriminatory and transparent trade mechanisms have been identified as an important factor supporting sustainable development for instance in Agenda 2110 The World Trade Organization (WTO) is working to become an enabling regime with objectives that are responsive to environmental concerns and strong enforcement institutions with an evolving body of jurisprudence11 The General Exceptions in Article XX of the General Agreement on Tariffs and Trade (GATT) the principal agreement of the WTO have been found to permit measures to protect human health the environment and the conservation of exhaustible national resources provided these are not arbitrary or an unjustifiable restriction on trade12 The WTO Agreement on Technical Barriers to Trade (TBT) and the WTO Agreement on the Application of Sanitary and Phytosanitary Measures13 govern technical requirements and food safety respectively establish rules portioning to the creation of regulatory measures for promotion of the green economy while ensuring trade is not restricted Additionally the covered agreements include the WTO Agreement on Subsidies and Countervailing Measures which aims to prevent application of perverse or trade-distorting subsidies)14 the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) which provides a framework governing the intellectual property system which positively incentivizes innovation and promotes dissemination of green technologies15 and the WTO Agreement on Government Procurement which provides for collaboration across the global procurement market and establishment of technical provisions which support green procurement16 The effective governance of waste be it food commercial or chemical waste ndash both regional and international ndash is crucial to achievement of SDG 124 on sound management of chemicals SDG 125 on waste reduction and SDG 126 on the adoption of sustainable practices as well as to SDG 122 on the effective use of natural resources The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal17 provides for regulation for all transboundary transport of ldquohazardous wastesrdquo including those listed in Annex I having the characteristics contained in Annex III and wastes which are considered to be hazardous in the domestic legislation of the exporting country18 ranging from waste from a clinical setting to pharmaceuticals explosives mineral oils inks and dyes resins and latex among others listed in Annex I19 The Basel Convention provides for the establishment of appropriate measures

9 International Law Association ldquoILA New Delhi Declaration on Principles of International Law related to Sustainable Developmentrdquo (2 April 2002) in Nico Schrijver Friedl Weiss (eds) International Environmental Agreements Politics Law and Economics 2 (2002) 211-216 [New Delhi 10 UN Rio Declaration on Environment and Development (1992) Principle 12 Agenda 21 Chapter 2 para 29 JPOI para 47 11 Marrakesh Agreement Establishing the World Trade Organization 15 April 1994 UNTS Volume 1867 No 31874 [Marrakesh Agreement Covered Agreements] 12 The General Agreement on Tariffs and Trade (1947) UNTC No 814 vol 55 Article XX (b) (g) 13 Marrakesh Agreement Agreement on Technical Barriers to Trade Annex 1A [TBT] Marrakesh Agreement Agreement on the Application of Sanitary and Phytosanitary Measures Annex 1A [SPS] 14 Marrakesh Agreement Agreement on Subsidies and Countervailing Measures Annex 1A 15 Marrakesh Agreement Agreement on Trade-Related Aspects of Intellectual Property Rights Annex 1C [TRIPS] 16 Marrakesh Agreement Agreement on Government Procurement Annex 4 [Agreement on Government Procurement] 17 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1673 UNTS 126 28 ILM 657 (1989) [Basel Convention] 18 Ibid Basel Convention Article 1 Annex I and Annex III 19 Ibid Basel Convention Annex I


4

administered by a designated competent national authority (CNA) to restrict export minimize generation inhibit illegal trafficking provide enforcement for and restrict transportation and disposal of hazardous wastes except as explicitly provided for in the Convention20 Transboundary movement to or through a Party jurisdiction requires notification and demonstration that disposal will occur in an environmentally sound manner21 Settlement of disputes may be done through submission to the International Court of Justice (ICJ) or through arbitration procedures established in Annex VI22 Regionally the EU has established a Directive on waste23 which defines ldquowasterdquo24 establishes basic principles as well as a waste management hierarchy25 introduces a licensing scheme to protect the environment26 and requires Member States to draft waste management plans and to report on their implementation27 The Basel Convention and the EU Waste Directive hold potential as important avenues for waste management planning and implementation in support of SDG 122 SDG 123 and SDG 125 To a certain extent the achievement of SDG 124 on sound management of all waste including chemicals throughout their lifecycle is found at the intersection of the Basel Convention the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade28 the Stockholm Convention on Persistent Organic Pollutants29 and the Minamata Convention on Mercury30 Where the Basel Convention provides systemic principles the Rotterdam Convention provide a procedural counterpart to foster cooperation and shared responsibility in international trade in hazardous chemicals through information exchange in support of protection of environmental and human health31 The Convention focuses principally on ldquoseverely restrictedrdquo chemicals listed in Annex III and ldquoseverely hazardousrdquo pesticides32 A prior informed consent (PIC) procedure applies to listed or voluntarily included substances This includes a national decision-making processes33 as well as an information exchange mechanism between Member States requiring they provide the characteristics of chemical compounds bi-annual updates on import decisions (PIC Circular) and comprehensive labeling for export34 The Conference of the Parties (COP) of the Convention decide and amend the list of chemicals subject to these PIC procedures35 The Stockholm Convention informed by the precautionary principle provides for the development of legislative measures to prohibit the elimination production use import and export of chemicals listed in Annex A provide restrictions on Annex B chemicals and allowing importation only for environmentally sound disposal of release36 Chemicals listed in Annex C are subject to measures including development of a management planning and evaluation of current projected releases with a view to minimization and where feasible elimination37 Parties are to develop and cooperate

20 Ibid Basel Convention Article 4(1-7) 21 Ibid Basel Convention Article 6-7 6(4) 22 Ibid Basel Convention Annex VI 23 EC Directive 200898EC of the European Parliament and of the Council of 19 November 2009 on waste and repealing certain Directives OJ L 3123 22112008 [Directive 200898EC] 24 Ibid Directive 200898EC Article 2-3 25 Ibid Directive 200898EC Article 4-7 26 Ibid Directive 200898EC Article 13 23 27 Ibid Directive 200898EC Article 15 28 34-37 28 Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade 2244 UNTS 337 38 ILM 1 (1999) [Rotterdam Convention] 29 Stockholm Convention on Persistent Organic Pollutants 2256 UNTS 119 40 ILM 532 (2001) [Stockholm Convention] 30 Minamata Convention on Mercury (Kumamoto 10 October 2013) [Minamata Convention] 31 Rotterdam Convention Article 1 32 Ibid Rotterdam Convention Article 2-3 7 Annex III 33 Ibid Rotterdam Convention Article 5-6 10 Annex I 34 Ibid Rotterdam Convention Article 11 13-14 Annex I 35 Ibid Rotterdam Convention Article 21-22 36 Stockholm Convention Article 1-3 37 Ibid Stockholm Convention Article 5


5

on actualizing their implementation plans and exchange relevant information in support of efforts to reduce eliminate or find alternatives to persistent organic pollutants38 Additionally Parties are to promote awareness among policy-makers the general public and in particular women and children of the effects and adverse health and environmental impacts of persistent organic pollutants through educational programs public participation and research and development into monitoring modalities39 The Minamata Convention which opened for signature in October 2013 and currently has 28 ratifications (including the USA) illustrates a new life-cycle management approach to dangerous substances protecting human environmental and ecological health from mercury through an operative focus on supply trade added products and manufacturing processes which utilize mercury40 Parties are required to not allow any mining of mercury that was not already underway prior to the entry into force of the Convention41 identify domestic mercury stocks exceeding capacity and ensure mercury from decommissioned facilities is disposed of in an environmentally sound manner42 Export of mercury is restricted but for under the PIC of the receiving jurisdiction and for environmentally sound storage or the limited uses outlined under the Convention43 Emissions and releases into the atmosphere or marine or terrestrial ecosystems are to be controlled and where feasibly reduced44 with interim storage to be done in an environmental sound manner with definitions found in the Basel Convention integrated into the regime covering mercury45 Collectively this set of inter-related nested and cooperative global treaty regimes governing chemicals persistent organic pollutants and mercury offer great potential providing a blanket of measures to support efforts to control minimize and effectively manage chemical and contaminated waste in support of SDG 124 also assisting in the achievement of SDG 123 and SDG 125 Integration of broader supply chain corporate social responsibility (CSR) and capacity building measures are integral to SDG 126 on sustainability practices and reporting SDG 127 on public procurement and SDG 128 on access to relevant information First CSR environmental standards such as International Organization for Standardization (ISO) 14001 or ISO 2600046 and reporting measures such as the Global Reporting Initiative (GRI) G4 Sustainability Reporting Guidelines47 can provide an example of a useful instrument and structure for organizational disclosure and reporting relating to chemical usage and management efforts Second the WTO Agreement on Government Procurement mentioned above and which was amended in 2012 aims to open procurement markets to international competition and allows Parties to develop and adapt technical measures which foster green procurement48 States Parties including procuring entities are explicitly empowered to establish technical specifications that promote environmental protection and the conservation of nature as well as to evaluate environmental factors as set out

38 Ibid Stockholm Convention Article 7 9 39 Ibid Stockholm Convention Article 10-11 40 Minamata Convention Article 1-5 41 Ibid Minamata Convention Article 3(3-4) 42 Ibid Minamata Convention Article 3(5) 43 Ibid Minamata Convention Article 3(6) 44 Ibid Minamata Convention Article 8-9 45 Ibid Minamata Convention Article 10-11 46 ISO International Standard ISO 14001 ndash Environmental Management Systems (Geneva ISO 2015) ISO International Standard ISO 26000 ndash Guidance on Social Responsibility (Geneva ISO 2010) [ISO 26000] 47 GRI G4 Sustainability Reporting Guidelines (Amsterdam Global Reporting Initiative 2013) [GRI G4] 48 Agreement on Government Procurement Annex to the Protocol Amending the Agreement on Government Procurement adopted on 30 March 2012 (GPA113) [Agreement on Government Procurement as Amended]


6

in the notice of intended procurement and to reference these as key performance criteria49 Further cooperation public awareness and capacity building all play a vital role in strengthening and supporting the broader conservation and protective measures encompassed in the global chemicals management regimes The Basel Conventions provides for cooperative development of technical guidelines and capacity building50 Similarly the Stockholm Conventions provides for development of education and training mechanisms as well as research and development to better understand the breadth of chemical impacts including human and environmental health as well as socio-economic and cultural factors51 Likewise the Minamata Convention provides for cooperation relating to capacity building and technical assistance to enhance domestic capabilities with particular emphasis on developing countries as well as across other multilateral environmental agreements52 Further both the Rotterdam and Stockholm Conventions provide for public access to information relating chemical management and measures to avoid and mitigate risks to human health and to the environment53 The effective achievement of SDG 128 and SDG 126 is not possible without these prerequisite mainstreaming mechanisms including through educational programs that enhance public awareness building capacity among competent authorities and policy-makers and public access to information pertaining to chemical usage composition and risks The compliance review mechanisms of the Aarhus Convention and its related pollutant registry protocols serve as a helpful record for other nations to follow in implementing SDGs related to integrating access to information public participation and access to justice in environmental decision-making54

III LEGAL OBSTACLES FACING THE IMPLEMENTATION OF SDG 12 ON

SUSTAINABLE CONSUMPTION AND PRODUCTION

Measures to implement sustainable consumption and production patterns risk running afoul of trade and investment provisions relating to national treatment most-favored nation status legitimate expectations and indirect expropriation if they are not structured and executed in a non-discriminatory manner While GATT Article XX allows for exceptions to relating to (b) human and environmental health or (g) conservation of an exhaustible natural resource the dispute settlement body has placed significant emphasis on ensuring the measure in question is non-discriminatory in nature to align with the chapeau of Article XX55 In China ndash Rare Earths export duties on rare earths tungsten and molybdenum were found to be inconsistent with the GATT and not saved by Article XX (g)56 Emphasis focused on application of a holistic view of the

49 Agreement on Government Procurement as Amended Article X6 X9 50 Basel Convention Article 10(2-4) 51 Stockholm Convention Article 10-11 52 Minamata Convention Article 14 53 Rotterdam Convention Article 15(2) Stockholm Convention Article 10(2) 54 Convention on Access to Information Public Participation in Decision-making and Access to Justice in Environmental Matters 38 ILM 1 (1999) 517 httpwwwuneceorg [Aarhus Convention] Kyiv Protocol on Pollutant Release and Transfer Registers (PRTRs) httpwwwuneceorgenvppprtrdocsprtrtexthtml [PRTRs Protocol] A Andrusevych T Alge and C Konrad (eds) Case Law of the Aarhus Convention Compliance Committee (2004-2011) 2nd ed (Resource amp Analysis Center ldquoSociety and Environmentrdquo 2011) httpwwwuneceorgfileadminDAMenvppMediaPublicationsACCC_Jurisprudence_Ecoforum_2011pdf 55 United States-Importation Prohibition of Certain Shrimp and Shrimp Products (Complaint by India Malaysia Pakistan and Thailand) (1998) WTO Doc WTDS58ABR (Appellate Body Report) [Shrimp-Turtle] United States-Importation Prohibition of Certain Shrimp and Shrimp Products Recourse to Article 215 (Complaint by Malaysia) (2001) WTO Doc WTDS58RW (Panel Report) [Shrimp-Turtle 215] Brazil-Measures Affecting Imports of Retreaded Tyres (Complaint by European Communities) (2007) WTO Doc WTDS332ABR (Appellate Body Report) [Brazil Retreaded Tyres] See ldquonot ldquoarbitraryrdquo ldquounjustifiable discriminationrdquo or a ldquodisguised restriction on international traderdquo 56 China mdash Measures Related to the Exportation of Rare Earths Tungsten and Molybdenum (Complaint by United States European Union and Japan) (2014) WTO Doc WTDS431ABR WTDS432ABR WTDS433ABR [China-Rare Earths]


7

measure to scrutinize the even-handedness57 In BrazilmdashRetreaded Tyres an import prohibition on retreaded tyres which provided an exception for MERCOSUR Member States through judicial review was found to be applied in an arbitrary and unjustifiably discriminatory manner and subsequently violated the chapeau58 Environmental measures to support domestic transitioning into sustainable consumption and production practices if crafted to ensure they are non-discriminatory in form or function could find support in two evolving decades of GATT XX jurisprudence59 but the lingering lack of clarity provides a key international legal obstacle An additional obstacle relates to the scope of state responsibility and subsequent recognition and acceptance of these responsibilities Under the UN Convention on Law of the Sea (UNCLOS) States are to treat the seabed as a ldquocommon heritage of mankindrdquo with the Seabed Disputes Chamber provided an Advisory Opinion in 2011 noting this provision to include the responsibility of State Parties to ensure activities conducted by nationals are in compliance with the Convention including demonstrable due diligence the use of environmental best practices and specifically the use of environmental impact assessments60 In 2015 the International Tribunal for the Law of the Sea (ITLOS) provided an Advisory Opinion noting that States must adopt adequate administrative measures within the jurisdiction relating to conservation of marine resources61 with international organizations tasked with governance holding an equal responsibility62 Additionally enforcement of responsibilities is an additional barrier as illustrated by the South China Sea Arbitration63 which China overtly refused to recognize Lastly compatibility of any new environmental-focused measure with pre-existing investment treaty obligations is a matter of concern with investors frequently claiming violations of legitimate expectations and expropriated investments64 Regulatory chill resulting from domestic policy-makersrsquo desire to avoid potential liability under the international trade and investment regimes remains a serious concern65 IV INTERNATIONAL POLICY INSTITUTIONAL AND GOVERNANCE ARRANGEMENTS TO COORDINATE DELIVERY OF SDG 12 ON SUSTAINABLE CONSUMPTION AND PRODUCTION Key institutional mechanisms which foster collaboration and cooperation are important to achievement of SDG 12 One example of such an approach is the International Resource Panel (IRP) Established by UNEP in 2007 the IRP provides policymakers with a spectrum of scientific and policy reports to assist in deconstructing economic growth with a view towards informed environmental planning66 This broad-based approach with iterative and evolving focus areas that include decoupling cities environmental impacts water metals land and soil food REDD+ and trade enable the IRP to take a cross-cutting or isolated approach to policy considerations An

57 China-Rare Earths para 5101 58 Brazil Retreaded Tyres para 258 59 Freedom-Kai Phillips ldquoAn Uneasy Relationship Combating a Global Threat Through International Traderdquo 18 Dalhousie J Legal Stud 33 (2009) 53-57 60 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area Case No 17 Advisory Opinion (ITLOS Seabed Disputes Chamber Feb 1 2011) 50 ILM (2011) para 145-150 239 61 Request for an Advisory Opinion Submitted by the Sub-regional Fisheries Commission (SRFC) Case No 21 Advisory Opinion (ITLOS 2 April 2015) para 119 [ITLOS Advisory Opinion 2015] 62 ITLOS Advisory Opinion 2015 para 172 63 In the Matter of the South China Sea Arbitration (Philippines v China) Award PCA No 2013-19 (11 July 2016) [South China Sea Arbitration] 64 Goetz v Burundi Award 10 February 1999 15 ICSID Review-FILJ (2000) 457 at para 124 Metalclad v Mexico Award 30 August 2000 5 ICSID Reports (2002) 209 at para 103 [Metalclad] CME v Czech Republic Partial Award 13 September 2001 9 ICSID Reports 121 Clayton et al v Government of Canada Award (2015) PCA No2009-04 Andrew Newcombe amp Lluiacutes Paradell Law and Practice of Investment Treaties Standards of Treatment (Netherlands Kluwer Law International 2009) at 324-325 65 See eg C Tietje and F Baetens The Impact of Investor-State-Dispute Settlement (ISDS) in the Transatlantic Trade and Investment Partnership Report prepared for The Netherlands Ministry of Foreign Affairs (Rotterdam 2014) [MINBUZA-201478850] 66 UNEP Annual Report 2015 (UNEP 2016) page 42 International Resource Panel Background httpwwwuneporgresourcepanel


8

additional institutional structure is developed though bottom-up corporate social responsibility (CSR) programs Developing as a parallel and equally important option alongside internationally accepted research guidelines and standards localized bottom-up approaches developed through collaboration with municipal provincial and regional authorities enterprises academics and civil society aim to foster territorial links to social responsibility The EU since 2000 has recognized the important role played by local governments in fostering social responsibility with private enterprises67 Additionally further areas of opportunity may be found by streamlining or harmonizing institutional approaches Parties to the Basel Rotterdam and Stockholm Conventions as principal instruments governing transport and release of hazardous chemicals have adopted various decisions to enhance the mutual supportiveness and cooperation across the Conventions The ldquoSynergiesrdquo framework is directed by an Ad Hoc Working Group and was set in place through COP decisions under each respective Convention to focus efforts through administrative and thematic alignment68 Simultaneous meetings of COP joint activities and synchronized financial mechanisms including a harmonized Secretariat provide the basis for enhanced cooperation and coordination in the future69 SDG 12 could be further enhanced by accession to the Basel and Minimata Conventions by member states in sufficient numbers for their entry into force as well as the further ratification of the Kiev Protocol on Pollutant Release and Transfer Registers to provide for effective recognition and control of trans-boundary pollutants already in force V SDG 12 GUIDING DOMESTIC ACTION ON SUSTAINABLE CONSUMPTION AND PRODUCTION Nearly all of the SDGs are impacted by sustainable consumption and production in some way Strategic planning efforts relating to the 10YFP necessarily implicate a broad set of economic sectors including agriculture forestry biodiversity fisheries marine management and water regulation energy climate change transportation and shipping manufacturing mining building and construction and waste management Improvement on global resource efficiency based on a production or consumption approach supports the realization of SDG 84 on resource efficiency70 Building resilience among the poor to climate-related and environmentally-related disasters under SDG 15 necessarily requires consideration of SCP in strategic planning71 Additionally land conversion crop nitrogen-use efficiency sustainable landscape management and agricultural productivity are crucial transformative factors in support of SDG 24 on sustainable food production72 Environmentally sound chemical management practices grounded in a lifecycle approach the precautionary principle and comprehensive reporting support SDG

67 EC ldquoCommunication from the Commission concerning Corporate Social Responsibility A Business Contribution to Sustainable Developmentrdquo (EC 272002) COM(2002) 347 68 Basel Convention Decision BC-IX10 (June 2008) Rotterdam Convention Decision RC-411 (October 2008) and Stockholm Convention Decision SC-434 (May 2009) 69 See Decisions BCEx-11 RCEx-11 and SCEx-11 See Decisions BC-1029 RC-512 and SC-527 Proposal from the Executive

Secretary of the Basel Rotterdam and Stockholm Conventions for the organization of the secretariats of the three conventions (21 December 2011) httpwwwbrsmeasorgSynergiesProcessJointManagerialFunctionsOrganizationoftheSecretariatstabid2619languageen-USDefaultaspx See Decisions BCEx-21 RCEx-21 and SCEx-21 See Decisions BC-1217 RC-79 SC-727(international

cooperation) BC-1218 RC-78 SC-722 (integrated financing) BC-1220 RC-710 and SC 728 (enhanced cooperation) BC‑1220 RC‑711 SC‑729 (clearing-house mechanism) BC-1222 RC-712 SC-730 (science) BC-1222 SC‑731 RC-713 (coordination of COPs) 70 SDG 84 71 SDG 15 72 SDG 24


9

39 on reducing chemical contamination and pollution as well as SDG 63 on reducing water-based pollution73 Mainstreaming efforts relating to SCP including integration into educational platforms and certifications and raising the prevalence of SCP as a component of education for sustainable development are important enabling factors in support of SDG 47 on knowledge acquisition to promote sustainable development74 The efficiencies from effective management of water and energy usage rates ndash including consideration for basin stress and broader integration of renewable energy resources into the energy mix ndash support the achievement of SDG 64 on water use efficiency SDG 72 on renewable energy promotion and SDG 73 on improvements in energy efficiency75 Development and investment into energy-efficient infrastructure across all segments of the economy intersects with SDG 94 on infrastructure upgrades76 National development strategical planning particularly relating to human settlements and land use must include as a component consideration of resource efficiency in transitioning into a green economy in support of 11b on enhanced city planning77 Promotion of market-based mechanisms that facilitate equitable benefit sharing with local authorities for sustainable marine management practices including local communities and small island developing states provides a basis for achievement of SDG 147 on sustainable marine management78 Lastly development of financial mechanisms and capacity-building programs that facilitate cross-sector sustainable consumption and production practices provides support for the achievement of SDG 15a on financial mobilization for ecosystem conservation as well as SDG 1716 on capacity building79 Measures necessary to achieve the SDGs often require incorporation into national developmental planning mechanisms with leadership required at the national regional and local levels needed to foster effective strategic planning and localized implementation (see Box 2)

73 SDG 39 SDG 63 74 SDG 47 75 SDG 64 SDG 72 SDG 73 76 SDG 94 77 SDG 11b 78 SDG 147 79 SDG 15a SDG 1716

BOX 2 NATIONAL IMPLEMENTATION

Achievement of SDG12 arguably more than any other SDG requires a broad strategic response which cuts across all levels of decision-making and necessitates both a top-down but also a bottom-up approach Strong leadership ant the national regional and local levels are needed to integrate SCP into national decision-making and strategic planning instruments Key stakeholders in particular the business manufacturing and agricultural leaders must be integrated into the policy planning sessions to raise awareness and support policy adoption

Legal and governance measures which support achievement of SDG 12 are cross-cutting in nature with significant overlap with a number of other SDG goals including eradicating poverty (SDG 1) food security (SDG 2) health (SDG 3) water (SDG 6) sustainable economic growth (SDG 8) sustainable infrastructure and technology (SDG 9) improved climate (SDG 13) marine ecosystems (SDG 14) and biodiversity (SDG 15)

Implementation of SDG 12 requires both centralized coordination and decentralized implementation adoption and monitoring At the national level establishment of a centralized coordination body to provide governance and direct strategic planning provides a cohesive approach to implementation of SCP practices Locally each region and sector will differ greatly relating to the resource profile legal requirements and available policy options Locally established andor sectoral focused bodies provide an opportunity for nuanced policy implementation in coordination with national efforts to avoid fragmentation SDG 12 has a broad set of stakeholders which are crucial to the implementation of SCP practices Polies should aim to leverage market-mechanisms to support transition with an emphasis on assisting small and medium enterprises (SMEs) and maintaining compliance of larger organizations

Principle stakeholders are participants across the manufacturing trade agricultural and industrial supply chain sector including delivery transport generation and storage as well as impacted administrative authorities financial institutions and appropriate civil society organizations including NGOs indigenous and local communities and academics National coordination monitoring reporting and refinement of strategic planning efforts related to SDG 12 should be iterative and responsive to specific sectoral needs


10

VI CONCLUSION Further development of policy measures which favor SCP coupled with committed financial support and complementary capacity-building mechanisms are needed to achieve SDG 12 Achieving a shift in strategic planning and governance instruments related to consumption and production requires an adjustment of a spectrum of environmental and economic policies with a focus on creation of incentives to support transition and review modalities to correct policy or market misalignment The objectives of SDG 12 require coordination cooperation and consultation across all economic sectors to inform development of a nationally harmonized but locally responsive strategy to support SCP Key sectoral indicators are also needed to inform policy refinement including domesticsectoral material consumption material productivity (GDP per unit produced or consumed) contaminate levels renewable energy use and nationalsectoral action planning instruments Technology transfer adequate access to financial capital and capacity building are also crucial supportive factors underlying the success of SDG 12 as are procedural measures that provide for adequate access to information and public participation to further inform policy-making in this area International instruments relating to chemical management provide areas of opportunity for enhanced promotion of SCP but greater membership and compliance is needed


11

Authors and Acknowledgements Dr Markus Gehring JSD (Yale) LLM (Yale) Dr iur (Hamburg) MA (Cantab) Deputy Director Economic Law International Law Research Program Centre for International Governance Innovation (CIGI) Senior Legal Research Fellow CISDL and Law Lecturer University of Cambridge Freedom-Kai Phillips MA (Seton Hall) LLB (Dalhousie) Legal Research Fellow CISDL William B Shipley LLBBCL (McGill) BA (Northwestern) Legal Research Fellow CISDL Thanks and acknowledgements are due to the experts of the CISDL Legal Working Group on the Sustainable Development Goals from over 33 countries for their insights and review and to senior officials in treaty secretariats among other inter-governmental agencies for their views As General Editors of the series the guidance of Dr Marie-Claire Cordonier Segger Senior Director of the CISDL Affiliated Fellow of the Lauterpacht Centre for International Law at the University of Cambridge and Dr Elizabeth Mrema Director of Division of Environmental Law and Conventions (DELC) of UNEP has been deeply appreciated They specially thank Mamadou Kane Head of DELC International Governance Unit Hyun Sung Programme Officer at DELC International Governance Unit and Freedom-Kai Phillips Research Fellow CISDL for their management and editorial leadership as well as Sylvia Bankobeza Legal Officer at DELC National Environmental Law Unit for her review of the issue briefs Great appreciation is also due for the insights of HE Justice James Crawford of the International Court of Justice Dr Nikhil Seth Executive Director of UNITAR and other experts who participated in international seminars on the contributions of international law policy and governance to the SDGs at the University of Cambridge in the United Kingdom at McGill University in Canada at the University of Zambia in Zambia and at the University of Chile in Chile The authors thank Professor Jorge E Vintildeuales University of Cambridge and Rob de Jong Head of UNEPs Transport Unit in the Energy Climate and Technology Branch for their helpful comments on an earlier draft They also thank Dr Jarrod Hepburn for review guidance and insights Disclaimer The views expressed in this Issue Brief are those of the authors and do not necessarily reflect the views of the United Nations Environment Programme nor the CISDL


1

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SDG 12 ON ENSURING SUSTAINABLE CONSUMPTION AND PRODUCTION

PATTERNS CONTRIBUTIONS OF INTERNATIONAL LAW POLICY AND GOVERNANCE

Dr Markus Gehring JSD (Yale) LLM (Yale) Dr iur (Hamburg) MA (Cantab) University of Cambridge

Freedom-Kai Phillips MA (Seton Hall) LLB (Dalhousie) CISDL William B Shipley LLBBCL (McGill) BA (Northwestern) CISDL

____________________________________________________________ I INTRODUCTION Poverty and environmental degradation are inexplicably linked and unsustainable consumption and production patterns (particularly in industrialized economies) are a key aggravating factor for income imbalances and deterioration of the natural environment1 Sustainable consumption and production (SCP) defined as ldquothe use of goods and services that respond to basic needs and bring a better quality of life while minimizing the use of natural resources toxic materials and emissions of waste and pollutants over the life cycle so as not to jeopardize the needs of future generationsrdquo2 The inclusion of sustainable consumption and production as Sustainable Development Goal 12 (SDG 12 Sustainable Consumption and Production) builds upon early recognition of the importance of sustainable use of natural resources in the Stockholm Declaration3 and the evolving sustainable development corpus which reinforces the recognition that consumption and production patterns must be changed as essential prerequisites to more sustainable development4 This Issue Brief provides a survey of existing intersections under international law which are pertinent to the effective implementation of SDG 12 Sustainable Consumption and Production Relevant international and regional instruments are summarized central policy and governance challenges which are implicated in implementation of SDG 12 Sustainable Consumption and Production are outlined innovations to overcome identified obstacles are suggested and opportunities for law and governance solutions are explored as tentative collusions While not seeking to be comprehensive the Issue Brief suggests that effective achievement of SDG 12 Sustainable Consumption and Production necessarily involves interlinkages related to trade waste and chemical management corporate social responsivity (CSR) public procurement and environmental education requiring comprehensive consideration of each individually and synergistically in transitioning towards a green economy

1 Report of the United Nations Conference on Environment and Development 3ndash14 June 1992 vol I Resolutions Adopted by the Conference (United Nations publication Sales No E93I8 and corrigendum) resolution 1 annex II at Chapter 4 [Agenda 21] 2 Norwegian Ministry of the Environment (1994) Report of the Symposium on Sustainable Consumption Oslo Norwegian Ministry of the Environment 3 Stockholm Declaration on the Human Environment 16 June 1972 UN Doc AConf4814Rev 1(1973) 11 ILM 1416 (1972) Principle 21 MC Cordonier Segger and A Khalfan Sustainable Development Law Principles Practices and Prospects (Oxford Oxford University Press 2004) 46-50 4 UNGA The Future We Want Report of the United Nations Conference on Sustainable Development UN Doc ARES66288 (27 July 2012) para 4 [Rio+20]


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SDG 12 on Ensuring Sustainable Consumption and ... Icons/SDG_12_Consumption...2016/07/30 · 12.2 By 2030, achieve the sustainable management and efficient use of natural resources