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CISDL A main focus for the CISDL in 2004 – 2005 will be to undertake joint academic and legal research projects with faculty members and other researchers, including McGill law, environment and development studies students. This section details the sustainable development law initiatives that are proposed for next year. Based on this strategy, a new CISDL Publications List of 2005 will be prepared, along with a Calendar of ISDL Events for 2004 – 2005, after the 2004 Annual Meetings. CURRENT LEGAL RESEARCH PROJECTS Sustainable Natural Resources Law 1. Legal Pluralism and Comparative Sustainable Development Law A legal research project on how phosphate mining impacts on ancient irrigation systems, and the application of sustainable development law principles in Sri Lanka, has been proposed to develop in collaboration with H.E. Judge Christopher G. Weeramantry’s International Centre for Peace Education and Research (WICPER) and a Sri Lankan University. In 2003, the proposal was reviewed by CISDL advisors and Sri Lankan advisors, and Prof. Myron Frankman of McGill University has now forwarded it to the McGill Office of International Research for their review. It is hoped this project will go forward for funding under the university / community cooperation programme of CIDA, depending on McGill approval. 2. Subsidies in the Fisheries Sector A research project on sustainable development in the fisheries sector with respect to international economic, environment and human rights law, has been proposed for 2004 – 2005. It would result in a book by Carolyn Deere and Caroline Dommen. Possible publishers include Earth Island, Earthscan and/or Martinus Nijoff Press. It may also be co-sponsored with partner organisations such as IUCN and/or ICTSD. 3. Intellectual Property Rights, WIPO and Participation A new research project on intellectual property rights, WIPO and participation has been proposed for 2004 – 2005. It will be made into a chapter for the upcoming IDRC book on new issues related to access to benefits of biodiversity, a chapter in the new OUP book on SD Law, or into an independent law journal article Trade, Investment and Competition Law 1. Sustainable Development & Regional Integration Agreements This legal research which, depending on funding being confirmed, could be part of a SSHRC larger project spearheaded by Professors Armand de Mestral and Hal Winter, which seeks to define whether regional trading agreements really promote more trade in the aggregate on a global scale as is claimed by their defenders or whether they lead principally to diversion of trade within expanded regional groupings, and whether their political advantages outweigh their economic consequences. The CISDL has committed to assist in the larger project, and undertake legal research to determine whether RIAs could serve today as platforms for the adoption of important social and environmental policies on the regional level, thus jumping over barriers posed by the need to seek agreement from each state. It could become more developed with the confirmation of research funds. 2. Sustainable Global Trade and Competition Law In 2003, two legal research papers, on ‘Sustainable Developments in World Trade Law’, and on ‘Sustainable Development and Competition Law’, were peer-reviewed by an advisory board. Then, with funding and partnership from the International Development Research Centre and the DFAIT of Canada, in collaboration with the LRCIL at Cambridge, TRALAC of South Africa, and the International Development Law Organisation, the CISDL hosted an experts panel event on ‘Sustainable Competition Law’ and another one on ‘Sustainable Developments in World Trade Law’ at the WTO 5th Ministerial Conference in September, 2003. The proceedings were displayed on the web site of the DFAIT. One of the papers will be made into a book, on ‘Sustainable Developments in World Trade Law’, and a contract has been agreed with Kluwer Law International to publish it. It should be completed by September, 2004. The other paper was reviewed in an Academic Workshop in February at McGill, with Professors Armand de Mestral, Richard Janda and ten McGill graduate students, and will be revised, then submitted to law journals by July, 2004. 3. An Americas Capacity Assessment (ACA) Project The CISDL, in partnership with the IISD and the UNEP, has undertaken a research and capacity building initiative in collaboration with twelve legal research centres across Latin America and the Caribbean. The project is advised by the OAS, and focuses on how to translate the results of integrated assessment of trade agreements into new regulations in Latin America and the Caribbean, and on how to strengthen law making and implementation capacity of sub-regional environment and development institutions. The preparatory work for this project has resulted in the preparation of a journal article, published in the Fordham Journal of International Law, on the Free Trade Area of the Americas. It began through a meeting, funded by DFAIT, that was held parallel to the Americas Trade and Sustainable Development Forum at the Miami, Florida in November, 2003, which also led to a commissioned report for Foreign Affairs Canada. The ACA Project hosted an Experts Workshop with guests from Latin American research centres, which was held at the McGill Faculty of Law in March, 2004, where new working papers on assessment methods, common hemispheric sustainable development law research priorities, and institutional capacities were reviewed. It also hosted a Roundtable Dialogue at the University of Ottawa Law Faculty in March, 2004, where the papers and workshop conclusions were reviewed with guests from IDRC, Health Canada, CIDA, Environment Canada, Foreign Affairs Canada, academic and civil society groups. The project will continue in 2004 and 2005, leading to a series of short manuals to use in legal training in the Americas by the OAS, the UNEP, the FOCAL, and potentially the Carleton Centre for Trade Policy and Law. Biodiversity The CISDL has a partnership with the United Nations Convention on Biological Diversity (CBD), which is based in Montreal. This legal research has focused on exploring domestic biosafety laws in developed and developing countries, their link to trade law, and how they reflect the precautionary principle in practice. A legal brief and research paper were drafted, reviewed in an academic workshop held with the UN Biodiversity Convention Secretariat on the entry into force of the Biosafety Protocol, then edited into a joint CBD / CISDL Legal Manual. The first draft of this was reviewed at the first UN CBD Meeting of the Parties. The project is becoming quite successful, leading to CISDL members being contracted to prepare materials and carry out training in Santiago, Chile, Dar Es Salaam, Tanzania, and Ouagadougou, Burkina Faso, for the UNEP Biosafety Project, as well as a contract to develop a regulatory assessment tool kit for this project. Armand de Mestral has provided some advice on this project. It is being funded by UNEP through the Global Environment Facility, and the IDRC for a scoping study on biosafety law. The Manual should be complete by September, 2004. 2. Access Contracts for Genetic Resources and Sharing of Benefits, in the context of negotiations for a New International Regime. This project was based on a CISDL/CBD legal brief that was reviewed in a panel event at McGill University in March, 2003, and led to a legal research paper on the nature, scope and potential elements of an international regime on access and benefit-sharing in biodiversity. An academic workshop was held parallel to the CBD meetings on this issue in Montreal, December, 2003, and this led to a contract with IDRC to carry out a scoping study on these issues. A CISDL – IDRC research meeting was held at the UN Biodiversity Convention COP in Kuala Lumpur on Valentine’s Day in 2004, and the report of the study is now being reviewed by the participating experts, for completion by May, 2004. The study has also led to the initiation of a new research project, supported by the IDRC and Environment Canada, on Access Contracts in civil and common law countries, mentoring a new generation of ABS researchers, and developing a series of papers on how experiences with these contracts might inform the new international regime negotiations. Health and Sustainable Development Law 1. The WHO Tobacco Convention Legal research has begun to scope the provisions of the WHO Framework Convention on Tobacco Control, its implementation mechanisms and intersections with world trade law. The research has resulted in a legal brief, and the publication of a chapter in the upcoming book, Sustainable Justice: Reconciling Economic, Social and Environmental Law (Martinus Nijhoff, 2004). 2. Risk Analysis, Health and the Precautionary Principle in World Trade Law Last year, based on a legal research paper on Precaution, World Trade Law and Sustainable Development, there was a panel event at McGill Law Faculty (Feb, 2003). It resulted in two law journal articles, one on the WTO Asbestos case, published in the Oxford Journal of Environmental Law, and one on precaution and risk analysis in the WTO, published in the Queen’s Law Journal. It also led to a chapter for a peer reviewed book on the international and domestic implications of new health and environment law, which is being published by Yale University Press. Climate Change and Vulnerability Law 1. ISDL Curriculum Materials for Judicial Education CISDL has partnered with the National Judicial Institute (NJI), the Canadian Institute for the Administration of Justice (CIAJ) and the United Nations Environment Programme (UNEP) to put together a series of Sustainable Development Law Curriculum Materials, focusing specifically on a challenge to Canadian climate change legislation. In Canada, this is leading to a new computer-taught course / website and course materials to be published by NJI. On the international level, these materials are being reviewed, translated and published by UNEP. CISDL members have a contract from the NJI to complete these activities, and are serving as external authors for UNEP and other partners. This project is still ongoing, and will be finished by June, 2004. 2. Climate Change & the Kyoto Protocol The CISDL is a member of an international group of climate law researchers and practitioners hosted by the Prototype Carbon Fund program in the World Bank Legal Vice-Presidency. This legal research has focused on the entry into force of the Kyoto Protocol, and how domestic implementation of this treaty is affected by considerations of equity, common but differentiated responsibility, liability for damages. It has also addressed potential intersections between legal obligations under climate and investment or trade law, land use change financing (LUCF), and the role of voluntary covenants. Last year, this project was launched through the preparation of a legal brief and panel event at McGill Law Faculty. This year, it became a comparative research paper for UNEP North America on regulatory and voluntary greenhouse gas registries, and an article on the legal nature of emissions reduction credits which was published in the Tulane Journal of Environmental Law. After detailed discussions at the Conference of the Parties 9 in Milan, Italy in December 2003, a chapter is also now being prepared on Canada’s participation in the Kyoto Protocol mechanisms for a World Bank book published by Oxford University Press. Human Rights, Poverty and Sustainable Development 1. Trans-systemic Analysis of Property Rights over Land and Water The CISDL is a member of the United Nations Development Programme’s community of practice which is examining changes in land tenure and water rights in Africa. Last year, in partnership with the African Centre for Technology and Science (ACTS), CISDL produced a legal challenge paper based on a series of case studies of Land Tenure, Land Reform & Desertification for UNDP, which was peer-reviewed and published, and led to an UNDP - CISDL – ACTS experts panel event at the UN Convention to Combat Desertification COP 6 in Havana, Cuba. The second phase of this work is proposed as a study, from a trans-systemic legal pluralism perspective, of customary land and water rights, and how these mix with new property regimes that are established during ‘modernisation’ efforts in civil and common law countries. This project is an extension of the one funded by UNDP and CIDA. It will lead to a research paper presented at the UN Commission on Sustainable Development (focus on water this year) and a law journal article, by September 2004. Several McGill professors have agreed to review the outline of the research paper, and give advice, and an outline has been forwarded to them for their review. If additional support were confirmed in 2005, we hope this will research could lead to a trans-systemic book on land and water rights to be reviewed (and perhaps prefaced) by McGill Law Faculty professors with leading expertise in this area. 2. International Debt Legitimacy Project The working paper on the Doctrine of Odious (Illegitimate) Debts has been circulated internationally, and is used as the principal articulation of the doctrine which various social movements wish to apply in the effort to cancel certain portions of Iraqi debt. Wajeeh Elali, a McGill Management Faculty Professor of finance, who has written on Iraqi debt, has proposed publishing the study as a book to which he would contribute. CISDL prepared a legal memorandum on the preliminary procedural and structural considerations for a proposed Iraq debt tribunal, currently posted by the Jubilee Iraq organization. 3. Conflict and Sustainable Livelihoods Paper A legal research paper on Conflict, Fragile States, Sustainable Livelihoods & Legal / Juridical Institutions, was developed for the CIDA Social Policy Unit, and submitted in September, 2003. Cross-Cutting 1. Sustainable Development Law: Principles, Prospects and Practices was accepted for publication by Oxford University Press, and is now being made into a legal textbook. In this area, the CISDL undertook a project to research, write and disseminate series of legal briefs on significant developments in the field of sustainable development law. This research led to an article published in Natural Resources Forum: the United Nations Sustainable Development Journal, which has already received interest and excellent feedback from governments and several law professors at different universities. The project was funded by DFAIT, and results are being presented, with the assistance of a McGill student coordinator, at the 2004 UN Commission on Sustainable Development. This project provided seed support to initiate several other research projects this year, addressing issues such as trade, corporate social responsibility, biosafety, and water tenure, and was completed in March, 2004. The briefs will, in most cases, provide preliminary drafts for chapters of the second CISDL textbook, Sustainable Development Law: Intersections, Issues and Instruments, for Oxford University Press. 2. A layman’s Guide to ISDL A 60 page manual on sustainable development law, is being developed for the International Development Law Organisation, Rome, to be used in training developing country lawyers. The IDLO is interested in several such manuals, leading to a long-term collaboration. 3. A Sustainable Corporate Law Project An article on Corporate Accountability: Responsibility, Liability and Citizenship, has been published in the RECIEL journal. A submission was also prepared for the Martin-Zedillo Commission of the United Nations on the role of private enterprise in development. A corporate responsibility working group is also being established to carry out legal research and develop a number of legal briefs on the issue of corporate responsibility and accountability. McGill students are involved in the working group and are developing a legal research paper, potential under the guidance of Professor Richard Janda of the McGill Law Faculty. Funding will be sought for this project throughout 2004. The CISDL has also accepted an invitation to advise the environmental program of the United Arab Emirates on corporate social and environmental responsibility, and how this relates to compliance with national and international environmental law, which will lead to participation in a workshop in Dubai in June, 2003. 4. Sustainable Justice: The Book The conference papers from the Sustainable Justice 2002 (the Conference which CISDL hosted in partnership with the McGill Law Faculty, held prior to the World Summit on Sustainable Development 2002) have been accepted as a book, to be co-edited with H.E. Judge Christopher G. Weeramantry, and published by Martinus Nijoff Press. The final manuscript is now being edited, and should be submitted by July, 2004. This legal research agenda describes the projects that have currently been proposed to be undertaken in 2004 – 2005. Many are based on ongoing initiatives, but other legal research projects may also be added, or presently envisioned projects may be deleted, depending on changing circumstances.
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