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The World Congress Rio+20 Declaration on Justice, Governance and Law for Environmental Sustainability

Fri, 05 Apr 2013 00:00:00 GMT

The World Congress on Justice, Governance and Law for Environmental Sustainability was held in Brazil, from 17-20 June 2012, with the aim to contribute to the support of Chief Justices, Attorneys General, Auditors Generals and other legal experts to the achievement of sustainable development and to provide inputs to the United Nations Conference on Sustainable Development Rio +20.

The World Congress on Justice, Governance and Law for Environmental Sustainability was co-hosted by: Association of Magistrates and Judges in the State of Rio de Janeiro (Associacao dos Magistrados do Estado do Rio de Janeiro - AMAERJ); Fundacao Getulio Vargas; and Ministerio Publico do Estado do Rio de Janeiro. It was organized with the following partners: Asian Development Bank (ADB); Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); International Criminal Police Organization (Interpol); International Organization of Supreme Audit Institutions – Working Group on Environmental Auditing (INTOSAI - WGEA); Organization of American States (OAS); South Pacific Regional Environment Program (SPREP); World Bank; International Network for Environmental Compliance and Enforcement (INECE); Environmental Law Commission of the International Union for the Conservation of Nature (IUCN); and Law for a Green Planet Institute.

The Congress gathered high-level judges, prosecutors, auditors and other legal experts for four days of interchange of experiences and discussion on leading cases and challenges in promoting a healthy environment from the legal field. The aim of the World Congress was to foster a common vision and principles on how to use justice, law and governance to promote sustainable development.

The Congress was essentially facilitated by two Preparatory Meetings (Kuala Lumpur, Malaysia, October 12-13 2011, and Buenos Aires, Argentina, April 23-24, 2012) the outcomes of which created the appropriate platform for the Congress and the development of the Rio+20 Declaration on Justice, Governance and Law for Environmental Sustainability.

Aiming at contributing to the Rio+20 Conference on the role of environmental laws within the themes of the “Institutional Framework for Sustainable Development” and “Green Economy”, the Congress focused on outlining the future actions required by national and international legal stakeholders in order to promote the pursuit of sustainable development in the 21st century founded on the rule of law and effective governance.

On June 20, 2012 the Congress adopted the Rio+20 Declaration on Justice, Governance and Law for Environmental Sustainability consisting of three interrelated elements: messages to Heads of State and government, other high-level representatives, and the world community at large; principles for the advancement of justice, governance and law for environmental sustainability; and institutional framework for the advancement of justice, governance and law for environmental sustainability in the 21st Century. It is to noted that, among the procedural and substantive principles to advance justice, governance and law for environmental sustainability, the Principle of Non-Regression (continuity for more effectiveness of environmental protection and sustainable development) is specifically acknowledged in the Declaration, a principle of fundamental importance for effective and efficient sustainability governance in contemporary challenges and threats.

The text of the Declaration is given below:

Rio+20 Declaration on Justice, Governance and Law for Environmental Sustainability (This declaration attempts to capture the wide range of views of participants at the World Congress on Justice, Governance and Law for Environmental Sustainability. It does not represent a formally negotiated outcome nor does it necessarily capture all individual views or represent country or institutional positions, or consensus on all issues) We, the Chief Justices, Heads of Jurisdiction, Attorneys General, Auditors General, Chief Prosecutors, and other high-ranking representatives of the judicial, legal and auditing professions gathered here in Rio de Janeiro, Brazil, from 17 to 20 June 2012 for the World Congress on Justice, Governance and Law for Environmental Sustainability, challenges. Expressing our concern for the continuing and unprecedented degradation of the natural environment, which adversely affects the achievement of the goal of sustainable development and therefore the prosperity of present and future generations, Noting the observations recorded in the Global Environmental Outlook 5 concerning the extent of environmental degradation in each of the world regions; Recalling the principles enshrined in the 1972 Stockholm Declaration on the Human Environment, and in the 1992 Rio Declaration on Environment and Development, and Agenda 21, Recognizing the important contribution made by the legal and auditing community worldwide to the enforcement of standards and safeguards for environmental sustainability, and noting that the Judiciary in particular, has been the guarantor of the rule of law in the field of the environment worldwide and that judicial independence is indispensable for the dispensation of environmental justice, Recalling the importance of the first Global Judges Symposium convened by the United Nations Environment Programme (UNEP) in 2002, in conjunction with the World Summit on Sustainable Development in Johannesburg, South Africa, and noting that since then, the importance of the Judiciary in environmental matters has further increased and resulted in a rich corpus of decisions, as well as in the creation of a considerable number of specialized courts and green benches, and a lasting effect on improving social justice, environmental governance and the further development of environmental law, especially in developing countries, Emphasizing the importance of societies based on the rule of law and standards of transparency and accountability, Affirming the Kuala Lumpur and the Buenos Aires statements from the two preparatory meetings for this Congress attended by Chief Justices, Heads of Jurisdiction, Attorneys General, Auditors General and other high-ranking representatives of the legal and auditing professions for this Congress, held in Kuala Lumpur, Malaysia, on 12 and 13 October 2011, and Buenos Aires, Argentina, on 23 and 24 April 2012, respectively, Mindful of the historic opportunity for the legal and auditing communities to express themselves on advancing justice, governance and law for environmental sustainability provided by the proximity of the World Congress with the 2012 United Nations Conference on Sustainable Development 2012 (Rio+20), Appreciating the important role played by United Nations Environmental Programme and its partner organizations and co-hosts in the convening of this Congress, Declare that: I. Messages to Heads of State and Government, other highlevel representatives, and the world community at large Without adherence to the rule of law, without open, just and dependable legal orders the outcomes of Rio+20 will remain unimplemented. An independent judiciary and judicial process are vital for the implementation, development and enforcement of environmental law, and members of the judiciary, as well as those contributing to the judicial process at the national, regional and global levels, are crucial partners for promoting compliance with, and the implementation and enforcement of, international and national environmental law. Environmental law is essential for the protection of natural resources and ecosystems and reflects our best hope for the future of our planet. Environmental litigation often transcends national jurisdictions. We need more effective national and international dispute settlement systems for resolving conflicts. Environmental sustainability cannot be achieved without good quality data, monitoring, auditing and accounting for performance. Environmental and sustainability auditing ensures transparency, access to information, accountability, and efficient use of public finances, while protecting the environment for future generations. Judges, public prosecutors and auditors have the responsibility to emphasize the necessity of law to achieve sustainable development and can help make institutions effective. Scientific information and knowledge constitute a central foundation of effective compliance with and enforcement of environmental obligations. States should cooperate to build and support the capacity of courts and tribunals as well as prosecutors, auditors and other related stakeholders at the national, sub-regional and regional levels to implement environmental law, and to facilitate exchanges of best practices in order to achieve environmental sustainability by encouraging relevant institutions, such as judicial institutes, to provide continuing education. Existing international governance institutions to protect the global environment should be strengthened. We must create modern institutional structures capable of building networks and improved sharing of decision- making. There is an urgent need to give consideration to transforming United Nations Environmental Programme to effectively lead and advance the global policy and law-making agenda for the environment within the framework of sustainable development. II. Principles for the Advancement of Justice, Governance and Law for Environmental Sustainability Meeting environmental objectives is part of a dynamic and integrated process in which economic, social and environmental objectives are closely intertwined. We recognize that environmental laws and policies adopted to achieve those objectives should be non- regressive. Environmental sustainability can only be achieved in the context of fair, effective and transparent national governance arrangements and the rule of law, predicated on: (a) Fair, clear and implementable environmental laws; (b) Public participation in decision-making, and access to justice and information, in accordance with Principle 10 of the Rio Declaration, including exploring the potential value of borrowing provisions from the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) in this regard; (c) Accountability and integrity of institutions and decision makers, including through the active engagement of environmental auditing and enforcement institutions; (d) Clear and coordinated mandates and roles; (e) Accessible, fair, impartial, timely and responsive dispute resolution mechanisms, including developing specialized expertise in environmental adjudication, and innovative environmental procedures and remedies; (f) Recognition of the relationship between human rights and the environment; and (g) Specific criteria for the interpretation of environmental law. Environmental sustainability can only be achieved if there exist effective legal regimes, coupled with effective implementation and accessible legal procedures, including with regard to locus standi and collective access to justice, and a supporting legal and institutional framework and applicable principles from all world legal traditions. Justice, including participatory decision-making and the protection of vulnerable groups from disproportionate negative environmental impacts must be seen as an intrinsic element of environmental sustainability. Only through the active engagement of all parts of society, especially national and sub-national institutions and officials responsible for addressing justice, governance and law issues, including judges, prosecutors, auditing institutions and other key functionaries, can meaningful progress be achieved that is sustained and responsive to the needs of the peoples of the world and protective of human rights. III. Institutional Framework for the Advancement of Justice, Governance and Law for Environmental Sustainability in the twenty-first century With the leadership of the United Nations Environment Programme, an international institutional network should be established, with the engagement of the World Congress partners and other relevant organizations, and under the guidance of selected Chief Justices, Heads of Jurisdiction, Attorneys General, Chief Prosecutors, Auditors General, eminent legal scholars and other eminent members of the law and enforcement community. This international institutional network may promote the achievement of: (a) Continued engagement of Chief Justices, Attorneys General, Heads of Jurisdiction, Chief Prosecutors and Auditors General, the institutions they represent and other components of the legal and enforcement chain, including through networks at the international and regional levels; (b) Quality information and data exchange and discussion among the legal and auditing communities at large; (c) Continued development and implementation of environmental law at all levels, and encouragement of the further expansion of environmental jurisprudence; (d) Improved education, capacity building, technology transfer and technical assistance, including with the aim of strengthening effective national environmental governance; and (f) Adequate engagement by respective national governments for the set objectives. The United Nations Environment Programme may contribute to ensuring necessary funding for capacity building and information exchange for strengthened capacities. Rio de Janeiro, Brazil, 20 June 2012

Rio+20 Declaration on Justice, Governance and Law for Environmental Sustainability

(This declaration attempts to capture the wide range of views of participants at the World Congress on Justice, Governance and Law for Environmental Sustainability. It does not represent a formally negotiated outcome nor does it necessarily capture all individual views or represent country or institutional positions, or consensus on all issues)

We, the Chief Justices, Heads of Jurisdiction, Attorneys General, Auditors General, Chief Prosecutors, and other high-ranking representatives of the judicial, legal and auditing professions gathered here in Rio de Janeiro, Brazil, from 17 to 20 June 2012 for the World Congress on Justice, Governance and Law for Environmental Sustainability, challenges.

Expressing our concern for the continuing and unprecedented degradation of the natural environment, which adversely affects the achievement of the goal of sustainable development and therefore the prosperity of present and future generations,

Noting the observations recorded in the Global Environmental Outlook 5 concerning the extent of environmental degradation in each of the world regions;

Recalling the principles enshrined in the 1972 Stockholm Declaration on the Human Environment, and in the 1992 Rio Declaration on Environment and Development, and Agenda 21,

Recognizing the important contribution made by the legal and auditing community worldwide to the enforcement of standards and safeguards for environmental sustainability, and noting that the Judiciary in particular, has been the guarantor of the rule of law in the field of the environment worldwide and that judicial independence is indispensable for the dispensation of environmental justice,

Recalling the importance of the first Global Judges Symposium convened by the United Nations Environment Programme (UNEP) in 2002, in conjunction with the World Summit on Sustainable Development in Johannesburg, South Africa, and noting that since then, the importance of the Judiciary in environmental matters has further increased and resulted in a rich corpus of decisions, as well as in the creation of a considerable number of specialized courts and green benches, and a lasting effect on improving social justice, environmental governance and the further development of environmental law, especially in developing countries,

Emphasizing the importance of societies based on the rule of law and standards of transparency and accountability,

Affirming the Kuala Lumpur and the Buenos Aires statements from the two preparatory meetings for this Congress attended by Chief Justices, Heads of Jurisdiction, Attorneys General, Auditors General and other high-ranking representatives of the legal and auditing professions for this Congress, held in Kuala Lumpur, Malaysia, on 12 and 13 October 2011, and Buenos Aires, Argentina, on 23 and 24 April 2012, respectively,

Mindful of the historic opportunity for the legal and auditing communities to express themselves on advancing justice, governance and law for environmental sustainability provided by the proximity of the World Congress with the 2012 United Nations Conference on Sustainable Development 2012 (Rio+20),

Appreciating the important role played by United Nations Environmental Programme and its partner organizations and co-hosts in the convening of this Congress,

Declare that:

I. Messages to Heads of State and Government, other highlevel representatives, and the world community at large

Without adherence to the rule of law, without open, just and dependable legal orders the outcomes of Rio+20 will remain unimplemented.

An independent judiciary and judicial process are vital for the implementation, development and enforcement of environmental law, and members of the judiciary, as well as those contributing to the judicial process at the national, regional and global levels, are crucial partners for promoting compliance with, and the implementation and enforcement of, international and national environmental law.

Environmental law is essential for the protection of natural resources and ecosystems and reflects our best hope for the future of our planet.

Environmental litigation often transcends national jurisdictions. We need more effective national and international dispute settlement systems for resolving conflicts.

Environmental sustainability cannot be achieved without good quality data, monitoring, auditing and accounting for performance.

Environmental and sustainability auditing ensures transparency, access to information, accountability, and efficient use of public finances, while protecting the environment for future generations.

Judges, public prosecutors and auditors have the responsibility to emphasize the necessity of law to achieve sustainable development and can help make institutions effective.

Scientific information and knowledge constitute a central foundation of effective compliance with and enforcement of environmental obligations.

States should cooperate to build and support the capacity of courts and tribunals as well as prosecutors, auditors and other related stakeholders at the national, sub-regional and regional levels to implement environmental law, and to facilitate exchanges of best practices in order to achieve environmental sustainability by encouraging relevant institutions, such as judicial institutes, to provide continuing education.

Existing international governance institutions to protect the global environment should be strengthened. We must create modern institutional structures capable of building networks and improved sharing of decision- making. There is an urgent need to give consideration to transforming United Nations Environmental Programme to effectively lead and advance the global policy and law-making agenda for the environment within the framework of sustainable development.

II. Principles for the Advancement of Justice, Governance and Law for Environmental Sustainability

Meeting environmental objectives is part of a dynamic and integrated process in which economic, social and environmental objectives are closely intertwined.

We recognize that environmental laws and policies adopted to achieve those objectives should be non- regressive.

Environmental sustainability can only be achieved in the context of fair, effective and transparent national governance arrangements and the rule of law, predicated on:

(a) Fair, clear and implementable environmental laws;
(b) Public participation in decision-making, and access to justice and information, in accordance with Principle 10 of the Rio Declaration, including exploring the potential value of borrowing provisions from the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) in this regard;
(c) Accountability and integrity of institutions and decision makers, including through the active engagement of environmental auditing and enforcement institutions;
(d) Clear and coordinated mandates and roles;
(e) Accessible, fair, impartial, timely and responsive dispute resolution mechanisms, including developing specialized expertise in environmental adjudication, and innovative environmental procedures and remedies;
(f) Recognition of the relationship between human rights and the environment; and
(g) Specific criteria for the interpretation of environmental law.

Environmental sustainability can only be achieved if there exist effective legal regimes, coupled with effective implementation and accessible legal procedures, including with regard to locus standi and collective access to justice, and a supporting legal and institutional framework and applicable principles from all world legal traditions.

Justice, including participatory decision-making and the protection of vulnerable groups from disproportionate negative environmental impacts must be seen as an intrinsic element of environmental sustainability.

Only through the active engagement of all parts of society, especially national and sub-national institutions and officials responsible for addressing justice, governance and law issues, including judges, prosecutors, auditing institutions and other key functionaries, can meaningful progress be achieved that is sustained and responsive to the needs of the peoples of the world and protective of human rights.

III. Institutional Framework for the Advancement of Justice, Governance and Law for Environmental Sustainability in the twenty-first century

With the leadership of the United Nations Environment Programme, an international institutional network should be established, with the engagement of the World Congress partners and other relevant organizations, and under the guidance of selected Chief Justices, Heads of Jurisdiction, Attorneys General, Chief Prosecutors, Auditors General, eminent legal scholars and other eminent members of the law and enforcement community.

This international institutional network may promote the achievement of:

(a) Continued engagement of Chief Justices, Attorneys General, Heads of Jurisdiction, Chief Prosecutors and Auditors General, the institutions they represent and other components of the legal and enforcement chain, including through networks at the international and regional levels;
(b) Quality information and data exchange and discussion among the legal and auditing communities at large;
(c) Continued development and implementation of environmental law at all levels, and encouragement of the further expansion of environmental jurisprudence;
(d) Improved education, capacity building, technology transfer and technical assistance, including with the aim of strengthening effective national environmental governance; and
(f) Adequate engagement by respective national governments for the set objectives.

The United Nations Environment Programme may contribute to ensuring necessary funding for capacity building and information exchange for strengthened capacities.

Rio de Janeiro, Brazil, 20 June 2012

Yasuni – ITT Initiative: a Case of Innovation in Global Sustainability Governance

Mon, 12 Nov 2012 00:00:00 GMT

Introduction

Ecuador is a small, less developed country in South America that is abundant in biological and cultural diversity. In 1972 Ecuador became an oil exporter and since then this product is the centerpiece of the national economy[1]. Although, Ecuador remains overwhelmingly oil dependent, oil’s vast revenues did not show a path out of the national dept. Its population continues to suffer from crushing poverty and there is a direct negative correlation between oil exploitation and poverty. As is the case with many oil-rich developing countries, the oil industry has resulted in poor social performance and caused devastating environmental and health effects. This is what is called “Natural resources curse”.[2]

In light of recent confirmation of large deposits of heavy crude oil in the Ishpingo Tambococha Tiputini (ITT) field, which is located in the Yasuni National Park, one of the most important and biological diverse in the world[3] as well as home to indigenous cultures living in voluntary isolation, President Rafael Correa proposed to refrain indefinitely from extracting the oil reserves within the ITT block if the international community were to compensate Ecuador for at least half of foregone income – a proposal widely known as Yasuni ITT Initiative. On 3 August 2010, a global trust fund administered by the Multi-Partner Trust Fund Office (MPTF) of United Nation Development Programme (UNDP) was officially launched to enable the international community to channel financial contributions invested exclusively in much-needed local alternative economic activities such as renewable energies and social development projects.

The unique Yasuni ITT Initiative aims at shifting Ecuador from an exporting primarily economy to a bio-knowledge society[4] and thereby represents a new model for post-extractive sustainable development. Given the Kyoto Protocol’s current limitations[5], Ecuador has put forward Yasuni ITT Initiative as an alternative to allow for the active participation of developing countries in mitigating climate change, protecting biodiversity, and the rights of indigenous peoples and promoting a new style of human development which is equitable and sustainable.[6]

Yasuni National Park: An imperiled Paradise

“The true wealth of the Yasuni does not lie below the ground or in gold or minerals, but instead with its extraordinary and unique biodiversity and the indigenous people that choose to live, uncontacted, within its canopy…”[7]

Located at the intersection of the Amazon, the Andean Mountains and the Equator, Yasuni National Park is among the top 5 biodiversity hotspots[8] in the world. The Yasuni National Park in Ecuador is the refuge to one of the greatest genetic varieties of plants and animals on Earth[9]. It spans nearly a million hectares of almost untouched primary rainforest and is situated in the Ecuadorian Amazon, predominantly in the province of Francisco de Orellana[10]. Far from the interference of civilization, the national park is sanctuary to various indigenous groups including the Waorani, Kichwa, Shuar, Tagaeri and Taromenane. It is worth-mentioning that the Tagaeri together with the Taromenane make up the two last known indigenous groups that choose to maintain no contact with the outside world, fighting bravely in defense of their ancestral territory and their right of self determination constantly threatened by unregulated oil exploitation of “neo-colonial” multinational oil companies, deforestation, and colonization.[11]

Due to its exceptional diversity and the presence of Tagaeri and Taromenane, UNESCO declared the Yasuni Park a Bio-reserve and Cultural Heritage site in 1989. Despite this fact, the Yasuni Park boundaries have been re-drawn several times to accommodate oil exploitation which would be otherwise forbidden. In 1999 the Constitutional court approved[12] plans to extract oil from the Yasuni National Park, a decree which clearly violated the park's legal status. In the same year, the Ecuadorian government declared 700.000 hectares of the park an “Untouchable Zone” which was delimited in 2006.[13] Recently, large reserves of oil were identified beneath the Ishpingo Tambococha Tiputini field[14] (ITT) holding 846 million barrels of crude oil, accounting for 20% of Ecuador’s national reserves. On the other hand, the ITT crude[15] oil is very difficult to extract and has higher carbon content, making it even more polluting than other oil.

Extracting this oil will inevitably induce the extinction of known and unknown species, oil contamination of water and soil and a large contribution to climate change through further oil production and extensive logging. It will also mean the final extermination of indigenous people living in voluntary isolation through violence and disease.[16] Against all odds, President Rafael Correa conceived a revolutionary idea with a view to preserve this natural wonder as a gift for the future generations.

The Yasuni ITT Initiative: A Win-Win Paradigm for Sustainability

During the 62nd Session of the United Nations General Assembly (UNGA) in September 2007, the Ecuadorian President Rafael Correa presented his innovative Yasuni ITT Initiative to save Yasuni National Park and the Amazon, known as the “green lungs” of the planet. In this proposal, the government committed itself to permanently forego the exploitation of the ITT field, thus avoiding the emissions of 407 million metric tons of CO2 due to non-extraction and burning oil. This would lead to savings of 800 metric tons of CO2 from avoided deforestation and reforestation it would promote nationwide.[17] Reducing further production and burning of fossil oils and mass deforestation is arguably a sine qua non condition to combat climate change.

Envisioning global co-responsibility for the governance of environmental challenges and challenges regarding human rights, Ecuador was “requesting the world community to contribute 50 percent of the income it is forgoing, amounting to US$ 3.6 billion” (which should come mostly from developed countries over a 13 year period starting from 2011), “with the balance being the contribution of the people of Ecuador to global goods”.[18] Through Yasuni ITT Initiative, the Ecuadorian government decided to put social and environmental values first and finance renewable energy and sustainable development investments such as avoidance of deforestation and conservation of ecosystems.

The original proposal initiative set three main goals, each of which represents an issue of international common interest:

To protect of Biodiversity;
To support the livehood and culture of the indigenous communities living in voluntary isolation;
To ensure net avoided emissions of greenhouse gases.[19]

The pioneering, holistic Yasuni ITT Initiative is based upon a paradigmatic shift towards a post-fossil fuel model of development and builds upon the internationally agreed Millennium Development Goals. In other words, this Initiative seeks to achieve three complementary objectives simultaneously: to reduce CO2, to protect biodiversity and to reduce poverty in Ecuador by investing in education, training, health and the development of sustainable technologies and non-extractive economic activities that will favor the poorest and most marginalized sectors of Ecuadorian society.[20] The weakness[21] of this plan is that it needs funders so as to step up and fulfil its target.

Yasuni ITT Trust Fund: An Innovative Regime of Global Sustainability Governance

On 3 August 2010, the Memorandum of Agreement Between the Government of Ecuador and the United Nations Environment Programme for Management and Other Support Services Related to the Ecuador Yasuni ITT Trust Fund (MOA) was signed providing the establishment and the governance system (the Steering Committee, the Administrative Agent, the Government Coordinating Agency, reporting-monitoring-evaluation and auditing procedures as well as joint communication procedures) of
the Yasuni ITT Trust Fund.[22]

The governance architecture of the Memorandum of Agreement requires special attention as it reflects the contemporary “participatory approach” to global environmental governance, dominant at the current phase of development of international environmental regimes, and introduced after the Rio Declaration 1992. This agreement[23] constitutes a regime which consists of the Yasuni ITT Trust Fund Steering Committee, the Yasuni Fund Technical Secretariat and the Government Coordinating Entity.

In addition, this unique legal agreement provides special roles for the National Recipient and Implementing Organizations. According to the Ecuador Yasuni ITT Trust Fund Terms of Reference,[24] Recipient Organizations are national institutions responsible for the implementation of projects funded by the Capital Fund Window[25] of the Yasuni Fund, while Implementing Organizations are national institutions responsible for implementation of projects funded from the Revenue Fund Window[26] of the Yasuni Fund.

More specifically, the Yasuni ITT Trust Fund consists of two windows, a Capital Fund Window and a Revenue Fund Window, which serve as a mechanism to channel contributions from “international community”.[27] They also ensure[28] that the funds are used effectively and transparently for certain sustainable development activities in accordance with the Ecuadorian National Development Plan and the National Regulatory Framework, provided that national financial regulations and rules do
not contravene the principle of UNDP’s Financial Regulations and Rules.

The Yasuni ITT Trust Fund Steering Committee serves as the primary coordination and governance mechanism, whereas the Yasuni Fund Technical Secretariat undertakes[29] four functions under one management structure: (i) technical support; (ii) project appraisal; (iii) monitoring and evaluation; and (iv) administrative support. It is worth-mentioning that he Steering Committee is entrusted with the commission of an independent “lessons-learned and review studies” of the entire operation of the Yasuni Fund in case that it becomes a development model applicable to other developing countries.[30]

As Government Coordinating Entity serves the Ministry of Heritage which was appointed by the Government. The Ministry of Heritage assumes full financial and programmatic accountability for the funds disbursed to the Recipient and Implementing Organizations by the Administrative Agent, represented by UNDP.[31] The Administrative Agent is entrusted[32] with fund administration functions for the Yasuni Fund.

More specifically, the Government Coordinating Entity is responsible for the development, implementation and monitoring and evaluation of the Yasuni Fund portfolio implemented by national entities. These entities, the National Recipient and Implementing Organizations, prepare proposals for funding and submit them to the Steering Committee for approval after review by the Technical Secretariat. The Government Coordinating Entity ensures[33] that each Recipient and Implementing Organization is responsible for the activities carried out by it, in accordance with the decisions of the Steering Committee and the National Regulatory Framework.[34] The Administrative Agent is empowered to deduct[35] the initial payment before disbursement to the Recipient Organization and deposit it into the Revenue Fund Window. The Government Coordinating Entity recognizes[36] that it is important to take all necessary precautions to avoid inappropriate practices. To this end, it guarantees the application of the National Regulatory Framework for the use of public funds.

In addition, the Government Coordinating Entity - and, through it, the Recipient and Implementing Organizations - provides the Administrative Agent with the statements and reports[37] for the progress of the activities and the financial situation. The provision of the Memorandum regarding the reporting procedures is considered very important to the extent that it ensures the sound use of the funds by the National Institutions. Moreover, the Administrative Agent will also provide the Contributors - on the basis of a Standard Administrative Arrangement[38] - the Steering Committee and the Government Coordinating Entity with certified financial statements on its activities. The MOA refers also to monitoring and evaluation[39] of the Yasuni Fund and to its publication.[40] Furthermore, it commands[41] that the Government Coordinating Entity and, through it, the Recipient and Implementing Organizations will be audited in accordance with the national audit framework. The Administrative Agent will be audited too, in accordance with its own Financial Regulations and Rules.

According to MOA’s general provisions,[42] in the event of any controversy, claim or dispute between the Parties arising out of this agreement or the breach thereof, the Parties should first seek an amicable resolution through good faith direct negotiations. Otherwise, arbitration could be initiated. The MOA is provided to expire[43] upon winding up of the Yasuni Fund or upon its termination by the Government upon selection of a successor to UNDP. It may also be terminated upon 180 days notice, upon mutual agreement of the Parties. Finally, the MOA may be modified only by written agreement between the Parties.

Fighting Against Time…

Since the proposal was presented in 2007, there has been some positive advancement. In particular, Ecuador became the first country which grants rights in the nature to its Constitution in 2008, thus presenting an exemplary model for other nations to follow. Despite all efforts, the original July 2008 deadline for the proposal has been extended several times. In order for the Initiative to be deemed viable, it needed to have 100 million dollars in the Trust Fund by 31 December 2011. In January 2012, Ivonne Baki, the plenipotentiary representative of Ecuador to Yasuni ITT Initiative, announced that the project has been deemed viable since the government received $116 million in pledges.[44] Outside Ecuador, countries such as Spain, Norway and Germany, have responded positively and International funding bodies like The Clinton Foundation have shown active interest in the proposal.[45] Given the catalytic importance of the Yasuni Initiative, other stakeholders such as governmental and non-governmental organisations and individuals from across the world have stepped out in support or launched campaigns, such as Yasuni Green Gold, Amazonia por la Vida and Save America's Forests, to contribute to national efforts to save the Yasuni.[46] In view of the weakness of this plan as it needs more funders to step up and fulfil its target, the next step is to launch an aggressive advertising, social networking, and promotional campaign focused on Europe, North America, and Australasia.[47] The new goal is to secure $ 291 million in contributions in both 2012 and 2013 to keep the Initiative going. During the side-event entitled “The Yasuni-ITT Initiative: shifting paradigms for a sustainable future” that took place at United Nations Conference on Sustainable Development (UNCSD or Rio +20) in June 2012, President Rafael Correa urged the innovative proposal as an alternative to preserve the environment and got the offer of a new monetary contribution.[48]

Despite the fact that the Yasuni Initiative becomes the center of attention of the international community as Ecuador is the first developing country seeking international support to keep its oil underground, this proposal has been severely criticized for serious weaknesses. One fundamental problem seems to be that[49] local Yasuni bodies were not invited to participate in the proposal or in any future planning, thus casting doubt on how much money would be channelled into the needed economic activities. Moreover, it was maintained that this proposal does not clearly guarantee the preservation of the Yasuni but it only sets a time limit for financial savings - after which, presumably, the Yasuni would be thrown to the mercy of oil exploitation.

Provided that these challenges would be successfully met through the effective operation of the new governance system and the conduction of public awareness campaigns, the new mechanism could clearly be considered as a pilot project for other countries that fulfil similar to Ecuador’s conditions[50] e.g. Bolivia, Brazil, Colombia, Costa Rica, Democratic Republic of Congo, India, Indonesia, Madagascar, Malaysia, Papua New Guinea, Peru, the Philippines and Venezuela.[51]

An Epilogue

The Yasuni ITT Initiative illustrates a case of innovation in global sustainability governance that signals a post-petroleum era. It constitutes a breakthrough example of what UNDP describes as a “triple win” approach to sustainable development, where initiatives deliver economic, social, and environmental benefits simultaneously.[52]

The funds to be given to Yasuni ITT Trust Fund will be used for the country’s sustainable development and could not be considered as a bargain exchange. In fact, they operate for the benefit of mankind as long as a major world biodiversity’s reserve is being effectively conserved. At the same time, the protection of the environmental rights of the indigenous inhabitants of Yasuni, is a basic requirement for the protection of other basic rights, such as the right to life and the right to property.As is remarked by Helen Clark, UNDP Administrator, the Initiative “presents a new approach to dealing with common but differentiated responsibilities when facing global challenges. The resources mobilized for Yasuni are considered contributions from countries or individuals. There are no donors but rather sharing contributors, with Ecuador being the largest contributor. This kind of shared responsibility provides a new conceptual framework for international co-operation which could be followed and built upon around the world.”[53] Indeed, Yasuni ITT Initiative is undoubtedly “a big idea from a small country”.

Endnotes

See, LARREA C., "Yasuni-ITT Initiative: A Big Idea from a Small Country”, Ecuadorian Governmental Report, Ministerio del Ambiente, Ministerio de Relaciones Exteriores, Comercio e Integracion, 17 December 2009, p.10. Available online at: http://www.indiaenvironmentportal.org.in/files/Yasuni_ITT_Initiative1009.pdf.
See, LYGKONI, E., “When the ‘Natural Resource Curse’ Becomes a Social Blessing: Sustainable Governance of Oil and Gas Development in Shetland Islands”, MEPIELAN E-Bulletin, 20 September 2011. Available online at: http://www.mepielan-ebulletin.gr/default.aspx?pid=18&CategoryId=4&ArticleId=72&Article.
See, “The Ecuador Yasuni ITT Trust Funds - Terms of Reference”, 28 July 2010, (Yasuni Fund TOR), Introduction.
See, RENE R.G., “A Major Transition for a Great Transformation – Reflections from the Yasuni-ITT Initiative”, New Society Magazine No. 237, January-February 2012, pp.8. Available online at: http://goo.gl/tbO0r.
Parties to Kyoto Protocol not listed in Annex I of the Convention (non-Annex I Parties) are mostly developing countries and they do not have legally binding emissions reduction targets.
See, LARREA C., Yasuni-ITT: An Initiative to Change History, Institutional Support, UNDP, Ecuador, 2009, p.4. Available online at: http://yasuni-itt.gob.ec/download/documentos/7.pdf.
See, http://www.yasunigreengold.org/about-yasuni.html.
It is thought to be a zone that did not freeze during the last ice-age, which began 2 million years ago and lasted up to 10,000 years ago. As a result, it became an island of vegetation where rich flora and fauna survived and eventually re-populated the Amazon. Ibid.
This biodiversity hotspot has been reported to contain 593 species of birds, 2.274 species of trees and bushes, 150 species of amphibians, 121 species of reptiles, 80 species of bats and 4.000 species of vascular plants. There are also more than 100.000 species of insects per hectare as well as many endangered and endemic species. See, http://www.uncsd2012.org/index.php?page=view&nr=82&type=1000&menu=126.
In 1541 the explorer Francisco de Orellana ventured into the heart of the Yasuni in search of the mysterious “El Dorado”, a kingdom of gold and precious minerals. Colonizers and missionaries have left a deep footprint on the Yasuni forever. Orellana's expedition has become one of the most famous pieces of Amazonian history and the region was name after him. See, http://www.yasunigreengold.org/about-yasuni.html.
According to Article 3 of United Nations Declaration on the Rights of Indigenous People, 2007, “Indigenous People have the right to self-determination. By virtue of that right they freely determine their political status, and freely pursue their economic, social and cultural development.” Available online at: http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.
See, http://www.yasunigreengold.org/effects-of-oil-yasuni.html.
The designation implies that the zone is to be protected from any mining, oil activity, logging, colonization or anything that might tamper with the biodiversity and ethno-cultural nature of the area. See, http://www.yasunigreengold.org/about-yasuni.htm.
Ecuador's oil reserves are divided into different geographical "blocks", with rights given to different companies to exploit each one. Ishpingo-Tambococha-Tiputini (ITT) is the name for the block in the heart of the Yasuni under which lies between million 412 million and a possible 920 barrels of oil, Ibid.
See, http://www.yasunigreengold.org/effects-of-oil-yasuni.php.
See, http://www.yasunigreengold.org/
Ibid.
Ibid.
Ibid.
See, LARREA C., supra note 6, p.8.
See, http://www.yasunigreengold.org/yasuni-campaign.php.
See Yasuni –ITT Trust Fund MOA, 3 August 2010, available online at: http://mptf.undp.org/yasuni/en.
The Memorandum of Agreement (MOA) was established after the Government of Ecuador had requested the United Nations Development Programme (UNDP), through its Multi-Donor Trust Fund Office (MDTF Office), to provide support services related to the establishment and management of the ECUADOR YASUNI ITT TRUST FUND, (MOA, Preamble, para. 3).
The Ecuador Yasuni ITT Trust Funds - Terms of Reference, 28 July 2010 (Yasuni Fund TOR), Art. 9, paras. (b) and (c). Available at: http://mptf.undp.org/yasuni.
The Capital Fund Window finances renewable energy projects (hydro, geothermal, solar, wind, biomass and tidal plants), Yasuni Fund TOR, Art. 8.
The Revenue Fund Window finances conservation, reforestation, energy efficiency, social programmes, research and innovation, Yasuni Fund TOR, Art.8.
According to Yasuni Fund TOR, Art.18, the contributions to the Yasuni Fund will be accepted from three main sources: (a) contributions from Governments, Intergovernmental Entities, Non-Governmental Organizations, Private Foundations, Private-Sector Organizations, and individuals, (b) contributions from the public at large, through public fund-raising events following the prior approval of the Steering Committee, (c) income for the sale of Yasuni Guarantee Certificates (CGYs) by the Government to private and public entities in return for mitigating greenhouse gas emissions through avoidance of oil and gas extractions from the Yasuni area that is socially and environmentally sensitive.
Yasuni Fund TOR, Art.8.
See, http://mptf.undp.org/yasuni.
Yasuni Fund TOR, Art. 5(5).
According to article 2(9) of MOA, “UNDP shall use its multi-donor trust fund management mechanism adapted for the management support services arrangements described herein.”
Yasuni Fund TOR, Art. 9 (d).
MOA, Art. 4 (23).
As provided by Art. 4of the MOA, all project proposals submitted from the national institutions, are subject to prior authorization from the Government Coordinating Entity. Before granting the authorization, the Government Coordinating Entity shall be satisfied that the project proposals meet the priorities of the Ecuadorian National Development Plan.
MOA, Art. 4 (24).
MOA, Art. 4 (32).
MOA, Art. 4 (33).
According to the Yasuni Fund TOR, Art. 15(b), Standard Administrative Arrangements will be signed between the Administrative Agent and the Contributors to the Yasuni Fund, except for contributions under a minimum threshold to be established by the Steering Committee in its Rules of Procedures.
MOA, Art. 6.
MOA, Art. 8.
MOA, Art. 7.
MOA, Art. 11.
MOA, Art. 9.
NYSINGH S. A., The Yasuni-ITT Initiative; Dreaming of Keeping Oil in the Soil ,Thesis, Master of Science, School of Natural Resources and Environment, University of Michigan , April 2012, p.15. Available online at: http://goo.gl/W2KTb.
See, http://www.yasunigreengold.org/yasuni-campaign.php. More information about contribution to Yasuni ITT Initiative is available at: http://mptf.undp.org/factsheet/fund/3EYC0.
See, http://www.yasunigreengold.org/yasuni-campaign.php. The Initiative is also supported by European Union, the Inter-American development Bank (IDB), Andean Development Corporation (CAF), the Organization of Petroleum Exporting Countries (OPEC), South American Union of Nations (UNSAR), Andean Community of Nations (CAN), Organization of American States (OAS), International Union for Conservation of Nature and Natural Resources (IUCN), and various indigenous organizations and ecological groups in Ecuador. See: http://goo.gl/FgzhH .
See http://news.sciencemag.org/scienceinsider/2012/01/with-116-million-pledged-ecuador.html.
See, Ecuador Times.net, June 21 2012, “Yasuni -ITT Initiative is supported at Rio+20 Summit,” available online at: http://www.ecuadortimes.net/2012/06/21/yasuni-tt-initiative-is-supported-at-rio-20-summit/.
Ibid.
The new mechanism can be considered as a pilot project for other countries selected according to three criteria: (a) Be developing countries, (b) Be megadiverse countries located between the Tropics of Cancer and Capricorn, which have the highest density of tropical forests and contain most of the planet’s biodiversity, (c) Have significant fossil fuel reserves in areas of high biological or cultural sensitivity. See, LARREA C., supra note 6, p. 4.
See http://www.dfid.gov.uk/R4D/PDF/Outputs/ELLA/120316_ECO_ExtIndLanUse_BRIEF4_0.pdf.
CLARK, H., "Yasuni-ITT Side Event with the Government of Ecuador", UNDP, 20 July 2012, available at: http://www.undp.org/content/undp/en/home/presscenter/speeches/2012/06/20/helen-clark-yasuni-itt-side-event-with-the-government-of-ecuador.html.
Ibid.

Nicaragua Files New Proceedings Against Costa Rica Before the International Court of Justice over Sovereignty Violations and Major Environmental Damages to its Territory

Wed, 22 Feb 2012 00:00:00 GMT

On 22 December 2011 the Republic of Nicaragua filed suit against the Republic of Costa Rica at the International Court of Justice (ICJ) alleging that Costa Rica’s plan for the construction of a road along the border area between the two countries violates its territorial integrity and has serious environmental consequences to the ecosystem.

According to the ICJ press release[1], Nicaragua claims inter alia that “Costa Rica’s unilateral actions threaten to destroy the San Juan de Nicaragua River and its fragile ecosystem, including the adjacent biosphere reserves and internationally protected wetlands that depend upon the clean and uninterrupted flow of the River for their survival”. It states also that “the construction works have already resulted in dumping in the River of substantial volumes of sediments - soil, uprooted vegetation and felled trees- produced by the clearing and leveling of the land that now serves as the road bed’.

The Applicant contends that “the felling of trees and the removal of topsoil and vegetation close to the River bank facilitate erosion, and the leeching of even greater amounts of sediments into the river. The sedimentation of the River poses a clear and imminent danger to water quality, to aquatic life (including several endangered species), and to rare and diverse fauna and flora that populate the river banks on both sides, especially those areas that form parts of the Biosphere Reserve Indio Maiz, forming one of the most extensive biological nuclei of the Mesoamerican Biological Corridor”. It also claims that “the road will have a major impact on the environment by further degrading the soil already devastated by deforestation due principally to agricultural and industrial developments on Costa Rica’s territory and causing substantial damage and silting of the San Juan River as well as altering the landscape and threatening the biodiversity”. As a result, “these works have already caused and will continue to cause significant economic damage to Nicaragua”.

Nicaragua requests the ICJ to adjudge and declare that Costa Rica has breached its obligation not to violate Nicaragua’s territorial integrity and its obligations to respect international environmental law. In particular, Nicaragua claims that Costa Rica violated a number of Environmental Conventions, such as Ramsar Convention on Wetlands, Convention on Biological Diversity, Convention of the Biodiversity and Protection of the Main Wild Life Sites in Central America and the Agreement over the Border Protected Areas between Nicaragua and Costa Rica (International System of Protected Areas for Peace Agreement/the Si-a-Paz Project). In addition, Nicaragua requests that Costa Rica must (a) restore the situation to the status quo ante, (b) pay all the damages and (c) restrain from any future development in the area, unless Costa Rica provides to Nicaragua an adequate transboundary Environmental Impact Assessment (EIA). Finally, it alleges that Costa Rica has repeatedly refused to give any appropriate information on the construction works and has denied that it had such an obligation. Therefore, Nicaragua requests that Costa Rica must cease all constructions underway and present Nicaragua an Environmental Impact Assessment with all the details of the works.

By an Order of 23 January 2012[2], the ICJ fixed 19 December 2012 and 19 December 2013 as the respective time-limits for the filing of the initial pleadings of the Parties. The subsequent procedure has been reserved for further decision.

These new proceedings are connected to the original proceedings instituted by Costa Rica over a year ago: an Application to the ICJ against Nicaragua in the Case Concerning Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)[3]. On 18 November 2010, Costa Rica charged Nicaragua of military incursion in connection with the construction of a canal in San Juan River and the related works of dredging on the River. Issues of sovereignty and environmental protection correspondingly played a prominent role. In particular, Costa Rica claimed that Nicaragua has breached inter alia its obligations under the Ramsar Convention by artificially channeling the San Juan River from its natural watercourse without the consent of Costa Rica. It also indicated that Nicaragua posed a serious threat to its internationally protected wetlands and national wildlife areas located in the region. Responding to this situation, Nicaragua stated in its Application of 22 December 2011 that it reserves the right to request that the proceedings in both cases should be joined.

In regard to the historical and geographical context and origin of both pending cases, it is worth noting that a boundary dispute between Costa Rica and Nicaragua over the San Juan River has been going on over the years. Recently, in 2009, the ICJ in the Case Concerning the Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua) issued a ruling over Nicaragua’s treaty obligation[4] to allow Costa Rica’s free navigation with purposes of commercial tourism[5]. In this Case, the Court concluded that Nicaragua had not acted in conformity with the obligations under the 1858 Treaty of Limits, when it implemented measures requiring visas, tourist cards and the payment of charges in respect of vessels, boat operators and their passengers exercising the Costa Rica’ s right of free navigation. But what makes the above pending cases interesting is the fact that they pose questions of violation of international environmental law to the ICJ and, in particular, of transboundary environmental damage. Transboundary harm disputes are rarely brought before the International Court. Jurisdiction of the ICJ has been often criticized, since only States may apply to and appear before it[6], while the Court can only deal with a dispute when the States concerned have recognized its jurisdiction[7]. The above pending cases do not present either of these problems. In fact, the ruling of the Court could have a significant impact on the future of international environmental litigation, especially on claims for transboundary environmental damage.

Endnotes

Case concerning Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), available at http://www.icj-cij.org/docket/files/152/16857.pdf (Last accessed: February, 12 2012)
Available at http://www.icj-cij.org/docket/files/152/16865.pdf (Last accessed: February, 12 2012)
ICJ Reports available at http://www.icj-cij.org/docket/index.php?p1=3&p2=2. For further information, see: http://www.icj-cij.org/docket/index.php?p1=3&p2=1&code=crn&case=150&k=ec (Last accessed: February, 12 2012)
The Treaty of Limits of 18 April 1858 between Costa Rica and Nicaragua
ICJ Reports available at http://www.icj-cij.org/docket/index.php?p1=3&p2=2. For further information, see: http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=37&case=133&code=coni&p3=6 (Last accessed: February, 12 2012)
Art.35(1), Statute of the International Court of Justice, 1978
Art 36. In the following eight cases, the Court found that it could take no further steps upon an Application in which it was admitted that the opposing party did not accept its jurisdiction: Treatment in Hungary of Aircraft and Crew of the United States of America (United States of America v. Hungary) (United States of America v. USSR); Aerial Incident of 10 March 1953 (United States of America v. Czechoslovakia); Antarctica (United Kingdom v. Argentina) (United Kingdom v .Chile); Aerial Incident of 7 October 1952 (United States of America v. USSR); Aerial Incident of 4 September 1954 (United States of America v. USSR); and Aerial Incident of 7 November 1954 (United States of America v. USSR). For further information, see: http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=2, (Last accessed: February, 12 2012).

“Deep Water: The Gulf Oil Disaster and the Future of Offshore Drilling” - Final Report of the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

Thu, 07 Apr 2011 00:00:00 GMT

Introduction

April 2010 marked a catastrophe of an unprecedented scale in the Gulf of Mexico that was undoubtedly a turning point for the future of offshore drilling not only in the United States, but worldwide. On April 20, the Macondo well that was situated 50 miles offshore Louisiana blew out causing the sinking of the semi-submersible Deepwater Horizon rig which resulted in injuring 17 and costing the lives of 11 workers and in having devastating environmental and broader economic impacts. On January 2011, the “National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling”, appointed by President Obama on 22 May 2010, handed over its report[1] after a six-month intense research period. This seven-member, non-partisan and independent entity provided a thorough analysis and impartial judgment of the causes that led to the blowout as well as to make recommendations for suitable reform of the conduct of offshore operations. The Commission characterized the accident as fully preventable caused by a series of failures that reflect “systemic”[2] deficiencies in risk management that have to be tackled in order to mitigate or even eliminate the recurrence of such a devastating accident in the future.[3]

Role of Minerals Management Service (MMS)

In the U.S., the responsible agency for the regulatory oversight of offshore drilling operations was the Minerals Management Service (MMS). Shortly after the accident the federal agency was reorganized into three distinct and separate entities: Bureau of Ocean Management, Bureau of Safety and Environmental Enforcement and Office of Natural Resources Revenue. As the Review stated, “Like the Deepwater Horizon, MMS ceased to exist”.[4]

MMS had two statutory missions: to promote offshore drilling and to ensure that this offshore development would proceed in a safe manner, thus safeguarding human health and the environment and creating, according to the National Environmental Policy Act (NEPA, 1970), “conditions under which man and nature can exist in productive harmony”. In the framework of exercising these two distinct but complementary missions, MMS received both political and industry pressure with a view to increase lease revenues and expedite permit approvals weakening safety management standards respectively. Under this combined pressure, MMS yielded to the industry's demands.

Moreover, MMS was sharply criticized for systematically lacking the resources, personnel, technical training and expertise in petroleum engineering, thus rendering itself incapable of promulgating the safety regulations necessary for the conduct of offshore operations. Such a failure to accomplish its primary mission was considered as “inexcusable”[5] for an entity charged with a responsibility of such a magnitude.

Furthermore, the inadequacies of MMS were underscored by the gradual movement of offshore drilling operations into deeper waters, a development that highly increases the risk of an accident. Despite its key role in safety management and the fact that it was the sole agency responsible for the regulatory oversight of offshore drilling, MMS did not take any action to mitigate the increased perils that accompany drilling in ever-deeper waters, being rather unable to confront this challenge.

BP’s Safety Culture

The importance of proper safety management operations is stressed out throughout the Report. BP, a company with the unwavering commitment of “no accidents, no harm to people and no damage to the environment”[6] was “no stranger to serious accidents”[7].

The Report cites BP for placing more importance on occupational (personnel) safety-minimization of injury rates which BP reduced by 75%- rather than on process (operational) safety which refers to the overall risk mitigation.

BP’s professed commitment has not been met and was, thus, proved invalid. What was shown, instead, illustrated a deficiency of reliable risk management and a series of chronic safety lapses that were reflected in a number of important safety accidents caused by BP (Grangemouth refinery accidents, North Sea platforms, Texas City refinery explosion).

Contributing Factors to the Blowout

As the Report suggests, “the Macondo blowout was the product of several individual missteps and oversights by BP, Halliburton, and Transocean, which government lacked the authority, the necessary resources, and the technical expertise to prevent.”[8] The “lost returns”[9] event that the well experienced on 9 April revealed that double failure and the dominant culture of complacency, and marked the starting point that led to the blowout. The series of facts that are inextricably linked with causation of the blowout can be stipulated as follows:

Failure to contain hydrocarbon pressures in the well
BP’s failure of risk evaluation of Macondo’s cementing decisions and procedures
Employment of long string casing instead of liners leading to higher possibilities of primary cement failure increased by the unfamiliar geology of the Macondo well
Usage of 6, instead of 21, centralizers
Lack of responsible analysis of the impacts of the combined risk factors associated with the well
Improper conduct and interpretation of the negative pressure test evaluating the integrity of the Macondo well, thus illuminating flaws in BP’s management procedures.
Lack of “formally” trained personnel for conducting such test resulting in a demonstration of overconfidence with regard to its interpretation and hence to false assumptions
Oversights of critical signs about the upcoming blowout by the drilling crew of the rig
Compartmentalization of information and failure of adequate communication between BP and its contractors, Transocean and Halliburton, resulting in the non-sharing of important information by BP with its contractors, or sometimes even internally within BP, and hence in the lack of full appreciation of the impacts of the decision-making procedures. e.g.: non-communication of important lessons by Transocean of an earlier near-miss in the North Sea four months prior to the Macondo well blowout.

Apart from the directly-related to the blowout (mostly technical) causes, the rig’s demise signaled a second combination of contributing factors that can be traced back to the inadequacies and deficiencies of the federal regulatory level:

Decades (1982-2010) of inadequate regulation, insufficient investment and incomplete planning in drilling safety and oil spill containment technology[10]
Pressure from political and industry interests - lack of autonomy of MMS
Deficit of technical expertise, personnel and resources of MMS
No standard procedures for conducting and interpreting negative-pressure tests at the time of the Macondo well blowout
Lack of internal procedures between BP and its contractor, Transocean for conducting and interpreting such tests
Cost- and time-saving decisions underestimating the associated risks with regard to safety management
The combination of all these contributing factors made the blowout inevitable and in the end uncontrollable.

Recommendations

The Report sets out a broad array of recommendations that evolve around seven thematic areas:

To improve the safety of offshore operations, the Commission assigns to the Department of the Interior extensive competence in the field of creating a new, more rigorous approach of the risk assessment and management program. As the US has the “highest reported rate of fatalities in offshore oil and gas drilling among its international peers”,[11] both the Congress and the Department of the Interior should set new high-level emergency -response standards that would be applicable not only to the Gulf region but also to the Arctic[12] and globally.

Furthermore, the Commission puts forward the creation of an independent agency within the Department of the Interior charged with the authority to “oversee all aspects of offshore drilling safety (operational and occupational) as well as the structural and operational integrity of all offshore energy production facilities”.[13]

The two major points of the Commission concerning the safeguarding of the environment stress out the need to “revise and strengthen the NEPA policies and practices” in the offshore drilling context by issuing guidelines so that NEPA would be applied in a “consistent, transparent and appropriate manner”.[14]

The Commission’s recommendations in the area of oil spill response and planning address the need for a thorough overhaul that would create a “rigorous, transparent and meaningful oil spill risk analysis and planning process for the development and implementation of better oil spill response”[15] as well as the establishment of “distinct plans and procedures for responding to a spill of National Significance”.[16] Towards this end, “Congress should provide mandatory funding for oil spill response research and development and provide incentives for private-sector research and development”.[17]

One of the most obvious shortcomings that the blowout underscored was the inability and the unpreparedness of both government and industry to contain the flow of oil from the damaged Macondo well. It is suggested that in order to advance well-containment capabilities in the wake of the blowout “the Department of the Interior should require offshore operators to provide detailed plans for source control as part of their oil spill response plans and applications for permits to drill” that would be both “effective” and “deployable”.[18]

Taking into account the unprecedented challenge that the blowout presented to the response capability of both government and industry and the large scale damages inflicted on the natural resources and habitats in the Gulf coast, the Commission indicated that compensation to the public “for injury to and lost use of public resources” must be awarded under the Oil Pollution Act (OPA, 1990).[19] Compensatory restoration must fulfill the “in-place and in-kind requirement”[20] and the compensatory restoration process should be conducted in a transparent and appropriate manner. According to estimates, fully restoring the Gulf will exceed $15 billion, requiring a minimum of $500 million per year, over 30 years. For the fulfillment of that long-term end and for ensuring significant funding, the Commission suggests directing 80 percent of the Clean Water Act penalties to support a region-wide restoration strategy.

The sixth point of recommendations concerned a major issue of attention: the financial limits of liability. As mentioned above, the Oil Pollution Act provides compensation for property damage, lost profits and economic injuries, as well as for restoring injured natural resources.[21] However, there are limits for the financial liability of the liable party. Under the Act, there is a $75million liability cap unless it is shown that the liable party was “guilty of gross negligence or willful misconduct, violated a federal safety regulation, or failed to report the incident or cooperate with removal activities, in which case there is no limit on damages”. On the other hand, it is worth stressing that, under the Act, there is also provision for the Oil Spill Liability Trust Fund, which serves as an efficient backup mechanism and as a safeguard for awarding compensation to oil spill victims for damages in excess of the statutory $75 million liability cap. In particular, if the liable party does not satisfy the claims of those victims, the latter can submit their claims for uncompensated costs and OPA-related damages to this Fund. The Trust Fund, being able to afford a payout up to $ 1 billion per incident, proceeds with compensating the oil spill victims after adjudicating their claims and afterwards seeks reimbursement from the liable party. In the Deepwater Horizon case, BP, the liable party, has waived the $75 million cap placing $20 billion in escrow for compensation claims. However, BP’s action cannot function neither as guarantee nor as precedent for other companies in the future in the event of facing an accident of such a magnitude. Hence, the Commission proposed to raise that cap without specifying to what extent. BP, the liable party, was a well capitalized company that was able to afford the millions of dollars for compensation. Raising the existing cap or even eliminating it might drive oil companies with more limited financial means compared to BP out of the market.

Last but not least, Congress is encouraged, for the purpose of strengthening its engagement in the field of ensuring responsible offshore drilling, to enact legislation so as to “create a mechanism for offshore oil and gas operators to provide ongoing and regular funding of the agencies regulating offshore oil and gas development”.[22]

Concluding Remarks

Offshore oil and gas drilling plays a fundamental role for the U.S. economy and the nation’s energy supply. At the same time, it is an inherently risky business. However, this pervasive riskiness should not imply that the Deepwater Horizon blowout was unavoidable, but that there should be an effective and efficient regulatory and oversight mechanism that would eliminate or mitigate the causation of offshore accidents.

As the Report concluded, “Drilling in deepwater has not to be abandoned. It can be done safely”.[23] Through this central message, it is once more stressed out that an overall and extensive transformation of the oil and gas industry’s safety culture is more than necessary for ensuring the continuation and safe conduct of offshore operations in the future. The fulfillment of this crucial element will contribute significantly to the gradual rebuilding of the damaged public faith in the oil and gas industry, thus contributing to the restoration and re-development of the undermined offshore drilling operations.

Endnotes

National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, Deep Water: The Gulf Oil Disaster and the Future of Offshore Drilling, Report to the President, USA: January 2011, also available at www.oilspillcommission.gov/final-report (Last accessed: April, 7 2011) (hereinafter, The Report).
The Report, p. 122.
The well was capped 87 days (mid-July) after the blowout and was finally killed 65 days (mid-September) thereafter through a relief well which was constructed to permanently seal the reservoir.
The Report, p. 55.
Ibid., p. 57.
Ibid., p. 218.
Ibid., p. 220.
Ibid., p. 115.
“Fracture pressure is the pressure at which the geologic formation is not strong enough to withstand the pressure of the drilling fluids in a well and hence will fracture. When fracture occurs, drilling fluids flow out of the wellbore into the formation instead of circulating back to the surface.” This causes what is known as “lost returns” or “lost circulation.” For further information see The Report, p. 90.
The Macondo well blowout served as an incentive for the development of the spill response technology which over a period of more than 20 years has improved only incrementally.
The Report, p. 251. During a five-year period (2004-2009), fatalities in the offshore oil industry in the US were four times higher than in Europe. This imbalance underscores the fact that fatalities and accidents are not unavoidable, but that they rather depend on the differing safety cultures and regulatory systems under which members of the industry operate (see figure on fatalities p.228).
Especially in the Arctic, increased attention and special planning are a prerequisite for the safe conduct of oil and gas drilling operations due to the vulnerable and fragile ecosystem and the unfamiliar geological and weather conditions of the region. To address these challenges and risks associated with this frontier, a comprehensive scientific and oil spill response research and a thorough environmental impact assessment must be developed and conducted. To this end, the Arctic Council has begun updating its voluntary Arctic Offshore Oil and Gas Operation Guidelines with a view to strengthen international standards for Arctic offshore drilling. However, these preconditions, specially-related to the Arctic, should serve as a safeguard for the responsible and safe conduct of such operations rather than as a “de facto moratorium” for offshore drilling in the Arctic.
Ibid., p. 256.
Ibid., p. 261.
Ibid., p. 266.
Ibid., p. 267.
Ibid., p. 270.
Ibid., p. 273.
Ibid., p. 276.
Ibid., p. 277.
OPA under paragraph 2702(b)(2)(A) defines natural resource damages as “damages for injury to, destruction of, loss of, or loss of use of, natural resources, including the reasonable costs of assessing the damage, which shall be recoverable by a United States trustee, a State trustee, an Indian tribe trustee, or a foreign trustee.”
Ibid., p. 290.
Ibid., p. 293.

CoE/CEMAT Moscow Declaration on “Future Challenges: Sustainable Spatial Development of the European Continent in a Changing World” July 9, 2010

Thu, 25 Nov 2010 00:00:00 GMT

The 15th Council of Europe Conference of Ministers Responsible for Spatial/Regional Planning (CoE/CEMAT) was held in Moscow (Russian Federation) on 8-9 July 2010 on the theme “Future Challenges: Sustainable Spatial Development of the European Continent in a Changing World”. The Conference also celebrated the 40th Anniversary of the CEMAT.

The Ministers of the 47 member states of the Council of Europe discussed and developed new approaches to meet the challenges which European countries now face. The Conference proved instrumental in fostering a reinforced co-operation on territorial matters throughout Europe.

The Ministers adopted the following important texts:

Moscow Declaration on “Future Challenges: Sustainable Spatial Development of the European Continent in a Changing World”

Resolution No. 1 on “The Contribution of Essential Services to the Sustainable Spatial Development of the European Continent”

Resolution No. 2 on “The Pan-European Charter of Rural Heritage: for a Sustainable Territorial Development”

These texts are given below:

CEMAT Moscow Declaration
on “Future Challenges: Sustainable Territorial Development of the European Continent in a Changing World”

adopted by the Ministers responsible for Spatial/Regional Planning at the 15th Plenary Session of the Council of Europe Conference of Ministers responsible for Spatial/Regional Planning (CEMAT) in Moscow, Russian Federation, on 9 July 2010

We, the Ministers of the Member States of the Council of Europe, attending the 15th Plenary Session of the European Conference of Ministers responsible for Spatial/Regional Planning, which also celebrates the 40th anniversary of the CEMAT, in Moscow, Russian Federation, on 8 and 9 July 2010,

Considering:

- the commitment of the Council of Europe to the promotion of human rights and pluralist democracy, as embodied in various European conventions and charters, and the fact that CEMAT has given priority to promoting the territorial dimension of human rights and democracy, especially through stronger territorial cohesion and democratic approaches based on the increased involvement of regional and local authorities and civil society in territorial development processes;

- the considerable changes which have occurred over the past 40 years in the demands made on territorial development policies, caused by shifting contextual factors, emerging challenges and evolving societal values; the key role played by CEMAT over these four decades in promoting efficient territorial development activities at all levels, including across borders, in order to increase the well-being of European citizens and the quality and attractiveness of the European territory, as well as the need to provide CEMAT, on this memorable occasion, with an increased impetus adapted to the new context;

- the commitment of the Council of Europe to sustainable development, as recognised by the final Declaration of the Third Summit of Heads of State and Government (2005), the Committee of Ministers, the Parliamentary Assembly, the Congress of Local and Regional Authorities and the Conference of INGOs, and expressed by the CEMAT, through the “Guiding Principles for the Sustainable Development of the European Continent” (2000) and the related Recommendation of the Committee of Ministers to member states of the Council of Europe (2002), the Ljubljana Declaration on “The territorial dimension of sustainable development” (2003) and the Lisbon Declaration on “Networks for sustainable spatial development of the European Continent: Bridges over Europe” (2006);

- that in this year of economic and social challenges, the priorities of the Chairmanship of the Committee of Ministers of the Council of Europe (May-November 2010) focused on achieving greater territorial cohesion are fully in line with the CEMAT commitments towards sustainable territorial development of the European Continent;

Having regard to the European Spatial Development Perspective (ESDP) and the Territorial Agenda of the European Union and its First Action Programme agreed upon by the EU Spatial Development Ministers at their Informal Ministerial Meetings in Potsdam in 1999, in Leipzig and in Ponta Delgada in 2007;

Following the principles and objectives suggested in the work programme of the Committee of Senior Officials for the period 2007-2010, highlighting the theme “Future challenges: sustainable territorial development of the European continent in a changing world”;

Adopt the following Declaration:

1.Milestones in the history of CEMAT

CEMAT was established in 1970 for the purpose of developing transnational cooperation on common territorial development issues such as the growing regional imbalances generated by economic prosperity, the structural move towards a more service-based economy or territorial integration across national borders. Soon, new challenges emerged which had to be added to CEMAT’s agenda, such as increasing unemployment in manufacturing regions, the economic backwardness of European peripheries, the polarisation trends in and around metropolitan areas and recognition of the importance of environmental issues. More recently, major innovations in telecommunication systems and especially the worldwide introduction of the Internet and related communication technologies made possible both the emergence of the knowledge society and the acceleration of globalisation. Business clustering and area-based development then became appropriate strategies.

The most important political event of the post-war period on the European continent took place in 1989-91, right in the middle of the four decades of CEMAT activity, with the fall of the Iron Curtain. The transition period which followed, driven by the introduction of the market economy in the countries of Central and Eastern Europe as well as in Russia, had a considerable impact on territorial patterns, as regards both cities and rural areas. Territorial integration could now progress on a continental scale, and networks of all kinds have developed over the past two decades throughout the wider Europe. The European continent is again unified, in a context where territorial disparities remain, however, significant.

In the past four decades, the internal organisation of statutory powers within the Council of Europe member countries has changed considerably. The process of the democratisation and the subsequent change of polarisation resulted in the allocation of significant territorial development responsibilities to regions and municipalities in most countries. In central and eastern Europe too, the decentralisation process, which started later, has progressed significantly, generating, as in western Europe, structures of multi-level territorial governance.

Since its foundation in 1970, CEMAT has played an invaluable role in promoting efficient territorial development policies throughout Europe, in line with major changes in the general context:

Activities to raise awareness, exchange good practice and jointly explore future trends have marked the course of its forty years of activity. CEMAT has had an unquestionable impact on the improvement of territorial development legislation, policies, procedures, practices and tools in numerous countries. Its influence has been particularly strong when new groups of countries have joined the Council of Europe, as happened in the case of several countries of southern Europe in the 1970s and of central and eastern Europe in the 1990s.

A particularly valuable and influential achievement of CEMAT has been the joint formulation and political adoption of common forward-looking territorial development doctrines, such as the “European Charter for Regional/Spatial Development” adopted in Torremolinos in 1983 and the “Guiding Principles for the Sustainable Spatial Development of the European Continent” adopted in Hanover in 2000, on the occasion of CEMAT’s thirtieth anniversary.

CEMAT has advocated the subsidiarity and reciprocity principles with a view to actively involving regions and municipalities in territorial development policies, and also as a means of preserving the unity in diversity bequeathed to Europe by its history and geography.

CEMAT has further demonstrated that well-conceived and efficiently implemented territorial development policies are essential to ensure sustainable development in the long-term, as stipulated by the Rio and Johannesburg Declarations, and to protect and enhance landscapes according to the provisions of the European Landscape Convention.

In the period 2007-2010, with the Russian Federation in the Chair, CEMAT has devoted specific attention, in the context of its international symposia, to following topics: “Accessibility and attractiveness of rural and landlocked areas: sustainable transport and services of general interest” (Andorra, 2007), “Challenges and strategies for metropolises and metropolitan regions in a context of growing globalisation with regard to economic, social, environmental and cultural development” (Saint Petersburg, 2008), “The spatial dimension of human rights: for a new culture of the territory” (Yerevan, 2008), “A comprehensive approach to balanced sustainable spatial development of the European continent” (Kyiv, 2009).

The overarching objective of territorial cohesion, as promoted by the Guiding Principles, should be interpreted primarily as a basic territorial dimension of human rights. It represents a fundamental value of European society that can reconcile European citizens and their daily aspirations in terms of human dignity, equity and security, and good living, working and cultural environments, with the unavoidable transformations in production systems and in the international and interregional division of labour, with changes in natural conditions such as climate change, and with the move towards a more multicultural society. Territorial cohesion is the most comprehensive and ambitious objective which territorial development policies, in conjunction with other public policies, must strive to achieve.

2. Climate change, population ageing and social polarisation call for appropriate and efficient territorial policy responses

New challenges with significant territorial impacts have emerged over the past decade, which were not at all, or not sufficiently, taken into account in the Guiding Principles of the year 2000. They call for urgent policy responses, especially on the part of territorial development policies in conjunction with other public policies.

The acceleration of climate change and the need for a new energy paradigm call for urgent territorial development initiatives

Climate change, hardly noticeable a few decades ago, has been accelerating to the point of becoming one of the most serious global issues. Fossil energy systems, which generate the majority of greenhouse gas emissions, are widely recognised as the main drivers of climate change. This has a growing impact on biological and physical systems and affects basic access to water, food production and other economic sectors as well as the environment. It also causes increasingly frequent natural disasters with social, economic and environmental damaging impacts. Curbing the speed of climate change and limiting the extent of its negative impacts requires significant initiatives in many public policy areas and also presupposes major changes in the functioning of society.

Territorial development policies have crucial tasks to fulfil in this field. With regard to facilitating a change of energy paradigm, they have to contribute to the adaptation of transport systems, to the implementation of energy-efficient measures in the design of buildings and urban settlements, to the good management of mobility needs, to the promotion and use of renewable energy sources, while ensuring environmental sustainability, social equity and to optimisation of the economic benefits to be reaped, in European regions, from these new approaches, ranging from research and development activities to the widespread implementation of new practical solutions tailored to each individual region. Where territorial development measures are concerned, minimizing the negative impacts of climate change requires on the one hand the intensification of preventive measures against potential damage from natural disasters (floods, drought, storms, landslides...) and, on the other hand, the development of structural measures aiming at facilitating the adaptation both of productive systems (agriculture, forestry, tourism) and urban settlements at strengthening the protection of natural resources and biodiversity, where potentially affected by climate change. Territorial development policies have to be significantly improved by integrating mitigation and adaptation measures into local, regional and national development strategies and into the various levels of decision-making.

Developing appropriate territorial policy responses to the new demographic and socio-cultural challenges

Several decades of low fertility rates are now resulting in accelerating population ageing and, in some countries, population decline. These trends will amplify in the future, with a greater intensity in central and eastern Europe as well as in some west European regions. The relative importance of migration resulting in total population change, which is currently significant, still could be expected. These demographic changes, combined with low birth rate and growing social polarisation in European society, will call for significant upgrading of the territorial development policies.

The relative importance of immigration in total population change, which is currently significant, will further increase. These demographic changes, combined with the growing social polarisation in European society, will call for significant improvements in territorial development policies.

With regard to the impact of accelerating population ageing, anticipation of labour shortages in a growing number of European regional labour markets - these improvements must include through the upgrading of qualifications, employment rates, productivity and innovation capacity; the strengthened provision of/and proper access to appropriate services and infrastructures (health care, culture, transport, accommodation facilities) for the elderly; and development of the residential and heritage-based economy in regions with valuable natural and cultural assets, based on the attraction of a growing numbers of retirees.

In regions (mainly remote rural and low density population areas and old industrial districts) affected or threatened by vicious circles of social deprivation generated by the simultaneous effects of depopulation, loss of jobs and closure of services, territorial development policies have to ensure the provision of essential services and promote economic development and social cohesion in order to maintain the vitality of settlements and prevent further deprivation. In order to facilitate the integration of young people, and especially of women, into the labour market of their home region, curb outmigration trends and make the region more attractive for these groups and enhance their personal prospects, opportunities for higher education, life-long learning and access to skilled jobs have to be significantly increased, in particular through better provision of services and infrastructures also promoting intra-regional mobility, twinning it with the efforts to counteract the process of decline by creating new jobs.

In order to counterbalance the effects of growing social polarisation, especially in cities, which often result in social segregation, growing intolerance, insecurity and even violence, territorial development and urban planning measures, in combination with other public policies and against the background of the Council of Europe’s objective of social cohesion, have to prevent such tensions, ensure social inclusion and alleviate social segregation by rehabilitating and regenerating problem neighbourhoods.

Cities also have an important role in economic recovery because of their added value for innovation.

3. Promoting innovative, sustainable and cohesive territorial development in a context of accelerating globalisation and as a means of responding successfully to economic challenges in the post-crisis period

Gaining increased benefits from the globalisation process through more efficient territorial approaches

The globalisation of economies, which has been the dominant trend since the 1990s, is driven by trade liberalisation and the development of information and communication technologies, which has increased the tradability of goods and services, facilitating the transnational fragmentation of production processes according to the most profitable locations. While a number of European regions significantly benefit from the globalisation process, others are confronted with increasing external competition. In the future, it is likely that the globalisation process will have substantially different characteristics, with competition moving more and more from low-wage production segments to technology-intensive products, including also, increasingly, services and agriculture.

Territorial development policies have the task of contributing to better positioning of the different European regions in the global context. Growth, stagnation and decline not only cause problems and challenges, it also provides an opportunity to stress differences between different regions and gives the change to enlarge the attractiveness of the European continent as a whole. Policies can do this by providing appropriate local responses to global challenges through the promotion of local economic development taking into account the territorial potential and in particular, heritage, local assets and resources, while linking it with sustaining and preservation of such heritage and local identity. In this connection, they have to promote the territorial anchorage of businesses by strengthening their regional links with research and development, training, education, administrative and cultural institutions and civil society. They are required to facilitate the adjustment of labour markets and enable production systems to move closer to the frontiers of technology, mainly through the upgrading of education and skills in regions. They are also expected to help overcome the still significant fragmentation of the European economic/technological system by facilitating the creation of cooperation networks, and especially clusters, throughout Europe, involving businesses, research and development and education institutions, technology transfer centres...

Innovative, sustainable and cohesive territorial development contributing to overcoming the consequences of the economic crisis

Europe is emerging from the deepest global economic depression of the post-war period. With the sharp decline in world trade and exports, the globalisation process has, for the first time, temporarily slowed down. It is essential that Europe’s global positioning does not worsen as an outcome of the crisis and that Europe’s regions efficiently exploit the potential of the new context to make a quantum leap in terms of competitiveness. Spatial and regional planning should contribute to economic recovery. Furthermore, the crisis and its consequences should also be considered and used as an opportunity for boosting territorial cohesion, especially in promoting place-based strategies which permit more rational and economical use of public resources. It is therefore of primary importance that the capabilities of territorial development policies be fully utilised and this requires a number of significant adjustments.

Territorial development policies should be helpful in reconciling the short-term, often sectoral measures adopted by governments to overcome the crisis with long-term values and principles, such as territorial cohesion and sustainable territorial development. In pursuing the aim of revitalising and consolidating the economy, more emphasis should be given to integrated approaches, the only ones capable of generating synergy effects and preventing long-term inconsistencies, and support should be given to regional and local initiatives aimed at mobilising endogenous resources and territorial potential. For the decades to come the economic strength and competitiveness of the European continent is more and more determined by the skills of people and the strengths of our cities in which knowledge, education, innovation and research find a powerful base.

The debate on climate change is far from being incompatible with the need to revitalise the economy, as significantly curbing greenhouse gas emissions offers considerable opportunities for economic development in European regions in terms of innovation and investment and makes demands on numerous areas of territorial development (energy, transport, construction and renovation of buildings, agriculture and forestry, tourism...). The adoption of new adaptation and mitigation solutions tailored to the local and regional contexts throughout Europe is likely to generate a great many new activities and significant numbers of new jobs, while contributing to improved quality of life and reduced risks related to climate change.

4. The quality and efficiency of territorial governance are key factors in responding successfully to new challenges

Territorial governance is increasingly recognised as being of primary importance in ensuring successful and harmonious territorial development, as was particularly stressed at CEMAT’s 14th Plenary Session in 2007.[1] The present context is even more challenging in this respect, with the need to recover rapidly from the economic crisis and efficiently manage the transition to a more environmentally-friendly energy paradigm.

Considering the increased number of member countries since 1989, with new borders and new administration systems and with higher cross-border permeability within the European Union and the Schengen area than outside, new forms of cooperation have to be developed to permit satisfactory and efficient territorial integration in all parts of the European continent.

As global competitiveness is rooted in the territory, especially in the numerous formal and informal networks of influence and cooperation existing in and between regions, significant European initiatives and impetus for sound, innovative and sustainable territorial development are necessary in the new context.

Territorial development policies should facilitate the transformation, in this new context, of European regions’ territorial capital into concrete economic, social and environmental added values. This requires innovative territorial governance, in which regional and local authorities define concrete development strategies in cooperation with economic players and civil society, mobilise and organise institutions and stakeholders to carry out operational projects, including on the basis of public-private partnerships, and ensure the coherence and sustainability of the various initiatives by providing a long-term vision and a development framework. The development of new infrastructures and services and the delivery of essential services are particularly challenging issues, especially in relation to population ageing, social inclusion and the continued vitality of communities and settlements.

With regard to the numerous valuable initiatives of regional and local authorities aimed at promoting the development of territories, reducing their social, environmental and economic vulnerability and counteracting climate change, it should be ensured that their future involvement will not be endangered by insufficient financial resources, as a result of the crisis.

Considering that development in the post-crisis period will necessarily be based on more endogenous approaches, closely associating regional know-how, assets and innovation potential, cooperation and subcontracting networks, local business clusters, voluntary associations and other NGOs, territorial development policies should enable civil society to be more heavily involved in the preparation and implementation of territorial development strategies and projects at the regional and local levels. In this connection regional and local authorities should be encouraged in their functions as facilitators for the setting up of project-related partnerships while ensuring the provision of necessary administrative and material support as well as the necessary links with upper-tier authorities. National policies and state interventions should be as effective as possible to provide transparency and predictability as far as national governmental actions are regarded. This also provides the necessary space for public-private partnership.

Because of their horizontal, cross-thematic character and orientation towards sustainability, territorial development policies are an invaluable tool for ensuring the protection, management and planning of landscapes, according to the provisions of the European Landscape Convention (2000), in a way which reflects the identity and diversity of the population living in the different European regions. Managing landscapes in the spirit of the Convention is an integral part of modern territorial governance.

In order to enable appropriate decisions to be taken in due time, conventional territorial monitoring systems should be complemented, at times of rapid economic and social change related to crises and unexpected events, with more qualitative, expert-based short-term reporting of territorial changes.

In the light of the foregoing, we, the Ministers responsible for Spatial/Regional Planning of the Member States of the Council of Europe,

Emphasize that:

The Council of Europe Conference of Ministers responsible for Spatial/Regional Planning (CEMAT), bringing together European Union and non-European Union member states, is a unique forum for discussion on the future of the European continent and for promoting cooperation and partnerships with regard to new, emerging challenges and to all territorial developments generated by structural changes.

With the aim of promoting sustainable and cohesive territorial development on a pan-European scale, while addressing highly strategic issues of common European interest, CEMAT is currently particularly committed to contributing to the recovery from the economic crisis and to implementing efficient and adequate mitigation and adaptation solutions regarding the challenge of climate change, as spatial development with its integrated and cross-sectoral approach and multi-level governance system can provide an adequate framework and a basis for implementation of adaptation strategies and measures respectful of the European territorial diversity. It also devotes particular attention and significant efforts to the territorial impact of population ageing, migration issues, growing social polarisation and accelerating globalisation.

With a view to promoting innovative territorial governance, making it possible to coordinate different policies at different levels and also efficiently involving the regional and local authorities and civil society, CEMAT is encouraging the formulation of long-term visions permitting comprehensive approaches and preventing undesired territorial effects.

Call on:

- the Member States, the Committee of Ministers and the Secretary General of the Council of Europe to consider not only the importance of the work carried out by CEMAT over the past forty years in promoting territorial development on a pan-European level while supporting human rights and democracy, but also its present strategic activities on crucial issues in a rapidly changing and challenging context, and therefore to maintain their support by providing CEMAT with sufficient resources as mentioned in the Annex to the final Declaration of the Third Summit of Heads of States and Governments (2005);

- the Committee of Ministers, the Parliamentary Assembly, the Congress of Local and Regional Authorities and the Conference of INGOs of the Council of Europe to provide appropriate support to CEMAT’s policy recommendations in order to facilitate and strengthen their implementation by mobilising wider circles of public authorities and stakeholders of civil society;

- the European Union to counteract the declining trends in the territoriality of European policies and to promote coherence and synergies between policies which have significant territorial impacts, with the aim of strengthening territorial cohesion and sustainability as well as the competitiveness of European regions in a context of growing territorial challenges. In this connection, neighbourhood policies should also be given a greater territorial dimension.

Commit ourselves, within our means and competences, to:

- provide fresh impetus to our cooperation efforts on the occasion of CEMAT’s fortieth anniversary and against the background of a highly challenging context and to give a sharper focus to CEMAT’s activities with the aim of contributing significantly to cohesive and sustainable solutions regarding the territorial development of the European continent;

- pay particular attention, in the territorial development policies of our respective countries, to the new challenges described above and to take all initiatives, both within our respective countries and in the context of cross-border co-operation, enabling territorial development policies to be efficiently combined with efforts to regenerate the European economy in a sustainable way and to provide efficient and adequate mitigation and adaptation solutions to the issues related to climate change;

- mandate the Committee of Senior Officials to adapt the Guiding Principles to the new territorial challenges.

Note

CEMAT Resolution N°2 on “Territorial Governance: empowerment through enhanced coordination”, adopted in Lisbon in 2007.

CEMAT RESOLUTION No. 1

OF THE MINISTERS RESPONSIBLE
FOR SPATIAL/REGIONAL PLANNING
OF THE MEMBER STATES OF THE COUNCIL OF EUROPE (CEMAT),

ON THE CONTRIBUTION OF ESSENTIAL SERVICES
TO THE SUSTAINABLE SPATIAL DEVELOPMENT OF THE EUROPEAN CONTINENT

adopted at the 15th Session of the Council of Europe Conference of Ministers responsible for Spatial/Regional Planning (CEMAT), Moscow, Russian Federation, 9 July 2010

The Ministers responsible for Spatial/Regional Planning of the Member States of the Council of Europe,

Considering that essential services are indispensable for a decent life in a developed society, and that the demand for those services is increasing rapidly;

Considering that access to essential services is a basic public policy aim and a crucial factor in spatial development policies, helping to reinforce social, economic and territorial cohesion and contributing to proper spatial planning;

Recalling that, under Recommendation Rec(2002)1 of the Committee of Ministers to the member states on the CEMAT “Guiding principles for sustainable spatial development of the European Continent”, “one of the aims of the Council of Europe is to strengthen local and regional democracy in Europe by means of a territorially more balanced development of the European continent”; and that “social cohesion in Europe has to be accompanied by sustainable spatial development policies that bring the social as well as the economic requirements to be met by the territory into line with its ecological and cultural functions”;

Recalling that, under the Ljubljana Declaration on the territorial dimension of sustainable development (CEMAT(2003)9 Final), “uneven accessibility to essential goods and services” is one of the many factors which are “challenging the sustainability of our common European future”, and that “to manage adequately the major challenges for sustainable spatial development of the European Continent, relevant policies must be further improved, in order to reduce disparities, particularly through a more balanced and effective territorial location of activities, infrastructure and services in order to improve their accessibility”;

Recalling the CEMAT Resolution No 3 on the EU Territorial Agenda and its relation to the CEMAT, adopted in Lisbon, on 27 October 2006, and referring to Article (3) of the Territorial Agenda EU which says that “Through the Territorial Agenda, we will help in terms of territorial solidarity to secure better living conditions and quality of life with equal opportunities, oriented towards regional and local potentials, irrespective of where people live whether in the European core area or in the periphery”; and to Article (8) “we regard it as an essential task and act of solidarity to develop preconditions in all regions to enable equal opportunities for its [EU] citizens and development perspectives for entrepreneurship…”.

Noting the Leipzig Charter on Sustainable European Cities adopted in Leipzig, on 24-25 May 2007, in which “The ministers declare:…all dimensions of sustainable development should be taken into account at the same time and with the same weight. These include economic prosperity, social balance and a healthy environment… In the long run, cities cannot fulfil their function as engines of social progress and economic growth…unless we succeed in maintaining the social balance within and among them…”.

Recalling that, under the Universal Declaration of Human Rights (1948), everyone “is entitled to realisation of the economic, social and cultural rights indispensable for his dignity” (Art. 22) and that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family” (Art. 25);

Recalling the International Covenant on Economic, Social and Cultural Rights (United Nations, 1966), in which “the states parties […] recognise the right of everyone to an adequate standard of living for himself and his family” (Art. 11.1), the right to enjoy the highest attainable standard of physical and mental health (Art. 12), and the right to education (Art. 13) and noting that this treaty was ratified by all the member States of the Council of Europe;

Recalling the Declaration adopted at the Johannesburg Summit (2002), in which the signatories affirmed their determination “to speedily increase access to such basic requirements as clean water, sanitation, adequate shelter, energy, health care, food security and the protection of biodiversity”;

Recalling the International Guidelines on Access to Essential Services for All (HSP/GC/22/2/Add.6) adopted by the Governing Council of the United Nations Human settlements programme at its 22nd Session in April 2009;

Recalling Recommendation No. R(2000)3 of the Committee of Ministers of the Council of Europe to the member states on the “Right to the satisfaction of basic material needs of persons in situations of extreme hardship” (January 2000) and the action taken by states to give effect to the individual, universal and actionable right to satisfaction of basic material needs;

Recalling Recommendation CM/Rec(2007)4 of the Committee of Ministers of the Council of Europe to the member states on “local and regional public services”;

Recalling Recommendation 235(2008)1 of the Congress of Local and Regional Authorities of the Council of Europe on “Services of general interest in rural areas, a key factor in territorial cohesion policies” and the invitation of the Congress to the European Conference of Ministers responsible for Spatial/Regional Development (CEMAT) to continue its discussions on rural areas;

Having regard to the above-mentioned Recommendation of the Congress to the Committee of Ministers of the Council of Europe to invite member States to “elaborate regulatory and financial mechanisms which enable the different tiers of government to offer support, incentives, grants, subsidies or equalisation measures to ensure adequate access to high-quality services of general interest for all”;

Recalling Recommendation 259(2009) of the Congress of Local and Regional Authorities of the Council of Europe on “Public Water and Sewer Service for Sustainable Development” and the invitation of the Congress to the European Conference of Ministers responsible for Spatial/Regional Development (CEMAT) to integrate its recommendation into the present resolution;

Considering the progress made in implementing human rights and, in particular, economic and social rights, and the increasing attention devoted to under-privileged and marginalised groups and ethnic minorities;

Considering that access to essential services is necessary to implement the right to an adequate standard of living as enshrined in the International Covenant on Economic, Social and Cultural Rights, and is indispensable for the effectiveness of the human rights provided for in this treaty;

Noting that, although most people in the Council of Europe’s member states already have extensive access to essential services, more progress is still needed to guarantee such access for more individuals, and particularly deprived or marginalised groups;

Recognising that implementing social, economic and territorial cohesion policies involves improving access to essential services wherever such access is still inadequate;

Noting that although there is no single uniform definition of essential services, there is a common understanding of what they are;

Adopt the Declaration on the contribution of essential services to sustainable spatial development of the European continent;
Decide to take account of the Declaration and, within their means and competences, apply its principles in the design and implementation of their spatial development policies, thus contributing to the promotion of social progress and strengthening of the implementation of human rights for the benefit of their own populations;
Decide to identify, in their own countries, the services which should, in their view, be available to everyone if human dignity is to be respected, and to implement, within their means and competences, policies and programmes designed to improve access to essential services and their quality, particularly in rural areas, mountain and ultraperipheric regions, small villages and peripheral urban areas;
Decide to promote sustainable spatial development policies taking into account social policy measures, solidarity policies and geographical and climatic adaptation measures, in order to ensure that the costs of essential services in remote, outlying or sparsely populated areas are compatible with those applied in urban areas or that alternative compensation measures are made in favour of vulnerable, marginalised or underprivileged population groups in their territory, including ethnic minorities;
Ask the Council of Europe to organise exchanges of experience and comparative analyses on measures adopted in member states with an eye to improving access to essential services in rural and peripheral urban areas, to promote sustainable ecological solutions in sparsely populated areas, and to make such services more accessible to vulnerable, marginalised or under-privileged population groups in their territory, including ethnic minorities.

APPENDIX

CEMAT DECLARATION ON THE CONTRIBUTION
OF ESSENTIAL SERVICES TO SUSTAINABLE
SPATIAL DEVELOPMENT OF THE EUROPEAN CONTINENT

The Ministers responsible for Spatial/Regional Planning of the Member States of the Council of Europe declare the following:

1. Regional/spatial development in a developed society requires the harmonised availability throughout the territory of a set of infrastructures and services of general interest in order to enable populations to enjoy an adequate standard of living and create the conditions for economic and social development of the different regions.

2. Essential services are services to which everyone should have access in order to be able to live decently, have their human rights respected, have an adequate standard of living and live in a healthy environment. Despite the progress made in this area, not all such services are evenly distributed throughout the European continent or equally available to all social categories, even though they play a vital role in guaranteeing economic, social and territorial cohesion in the framework of sustainable spatial development.

3. The territories that may lack essential services are mainly rural areas, under-equipped peripheral urban districts, economically under-developed regions and ultra-peripheral areas where the demand for essential services is less strong or less easy to solve. The absence of essential services in some regions hampers balanced spatial development and is seen as a factor for exclusion, or even as a form of discrimination, thus contributing to depopulation of some regions. Similarly, charging high prices for such services excludes under-privileged households from such services.

Essential services contribute both to economic and social development and the implementation of human rights requires new measures to facilitate access by all to such services and make their accessibility reasonable to reduce the number of citizens deprived of them in Europe. Such action will involve all levels of government including ministers responsible for spatial/regional development.

The provision of essential services will benefit from a clear distribution of responsibilities between territorial communities, regions and the State and from capacity building and empowerment of such decentralised authorities who are made responsible for overseeing or managing essential services.

4. Essential services are chosen in each country by public authorities to meet the needs of their various population groups in accordance with spatial development objectives. They vary from time to time and from place to place. The following services are often chosen in member states as being essential services under their legal system: water supply and sanitation, energy supply, electricity and gas, telecommunications (including Internet access), postal services, refuse collection and disposal and public transport. This open list could possibly include other social services, it being understood that health and education services should be provided in all cases. Common lists should also be drawn up by mutual agreement between states following similar socio-economic policies and include quality requirements for essential services and measures designed to improve them when needed.

5. This Declaration applies only to essential services which under internal law have to carry out public service missions or which are considered to be services of general interest. Its implementation will vary from one country to the other and may require amending current policies to increase access to all.

Choice of essential services

6. Each individual state, in consultation with the relevant authorities and civil society, should determine very precisely, in an transparent manner and in accordance with their spatial policies, the essential services which they intend to make available for all throughout their territory. This choice will be influenced by their level of development, general policy aims, considerations of equity, traditions and culture and, generally, their policies on social, economic and spatial development. The practical arrangements for establishing the services must comply with the rules applicable as regards the provision of services of general interest. Harmonisation of the lists of essential services between countries with similar economic development would contribute to reducing economic and social disparities.

GENERAL PRINCIPLES

A. Essential services, spatial development and planning

Aims

7. Sustainable spatial development requires the provision of essential services throughout the territory under conditions which enable everyone to have access to them. Such services should be provided as close to the users as possible and equitably distributed through the territory in a non-discriminatory manner, generally in polycentric spatial structures. Measures for the delivery of essential services will need to be adapted to local conditions.

Within the limits of their means and competences and depending on available resources, public authorities should take the action needed to make essential services available to the public, taking account of the needs of present and future generations and of the protection of health and the environment. Such action is likely to involve several ministries and/or several local and regional authorities according to the country’s legal framework and may be supported by appropriate legal provisions and national strategies elaborated at interministerial level.

Improving access to essential services in regions where they are lacking is a priority in ensuring that everyone can live in his/her own region thus contributing to social, economic and territorial cohesion. It helps to improve regional economic development.

Setting up of essential services

8. Depending on available resources, public authorities should provide or support the availability of these services and should monitor them. They should define the roles and responsibilities of any regional or local bodies responsible for such services. Where they do not directly manage the services, they should retain political responsibility for them.

9. Public authorities should specify, within the limits of their competences, the general rules applicable to essential services (universal access, continuity, inalienability, security, adaptability, effectiveness, affordable charges, transparency, etc) and the level of quality expected of them.

10. Public authorities should adopt and implement measures to guarantee access to essential services in normal situations, and also adopt special provisions for crisis situations. In some cases, users have to travel in order to have access to such services. Measures should be taken to facilitate easy and affordable access to these services by public transport when they are not locally available.

Decentralisation

11. Decisions on the spatial deployment of essential services and the corresponding operational regulations should take account of specific regional or local conditions, and should contribute to sustainable spatial/regional development in line with adopted policies, plans and guidelines for regional development of urban and rural areas and in accordance with sectoral plans and decentralisation policies.

12. Local or regional authorities close to the users should play a major part, in the context of decentralisation, in establishing, monitoring and ensuring the proper functioning of essential services, in compliance with power-sharing rules. They should cooperate to ensure that essential services operate efficiently on an appropriate scale, in particular between urban municipalities and nearby rural areas.

Management

13. Public authorities may exercise their powers in the field of essential services either directly or, if permitted by law, by delegation. In these cases, they should have freedom of choice concerning modes of management, and ensure that this choice can be reversed. If management is delegated, the corresponding decisions should be valid for a limited time and subject to regular review involving users. Delegated services should operate in accordance with rules compatible with the requirements of sustainable spatial development, in a non-discriminatory manner, under the supervision of the public authorities and in a manner accessible to all.

Networked services

14. States should pay particular attention to the development of networked services in order to ensure sustainable spatial development and combat rural depopulation. They should earmark financial resources for new infrastructures in their territory and make full use of information and communication technologies as a tool to encourage accessible essential services throughout the territory

15. States should apply the principle that “telecommunications networks must be improved and extended to cover the whole area and tariffs must not be prohibitive” (Recommendation Rec(2002)1 of the Committee of Ministers to member states on the “Guiding principles for sustainable spatial development of the European Continent”). They should stress that “generalised access to Internet must be a priority objective” (Declaration on “Networks for sustainable spatial development of the European continent: Bridges over Europe”, adopted by the Ministers responsible for Spatial/Regional Development at their European Conference in Lisbon, on 27 October 2006 [CEMAT(2006)14 Final]).

B. Progressive extension of access to essential services

16. Public authorities should take appropriate action to promote the progressive extension of access to essential services under spatial development plans, depending on the financial resources available.

17. The investments required for the extension of access should be the subject of long-term development from the angle of sustainable development and sustainable spatial/regional development. Subsidies may be provided to take account of the extra costs of essential services in remote, outlying or sparsely populated areas or alternative price compensation measures may be taken in favour of vulnerable, marginalised or under-privileged population groups, including ethnic minorities, in accordance with the rules applicable to financial assistance.

C. Essential services and human rights

Right of access for all

18. In order to combat social inequality and geographical disparities, everyone should be granted the right of access to those services which are essential for living decently in a developed society.

19. Access to essential services may derive from general spatial development policies or from human rights, from obligations incumbent on public authorities or from provisions on economic and social rights enshrined in the constitution or treaties. The exercise of rights relating to essential services is dependant on complying with the corresponding obligations, especially in terms of protecting natural resources and the environment.

Social and economic cohesion measures

20. The prices paid for essential services are a major factor in ensuring their effective availability particularly in remote areas where they are liable to be higher.

21. Prices should either be determined by the public authorities in respect of public services or be monitored, controlled or approved by them, so as to ensure their sustainability and strengthen social, economic and territorial cohesion. Where necessary, subsidies and fiscal measures may be used in order to ensure affordability to everyone.

22. The costs of essential services should be apportioned among all users so as to ensure that everyone has access to them under economic conditions acceptable to all. Public authorities should choose the methods to achieve such fair apportionment having due regard to the effects on spatial development of social, economic and territorial cohesion. They may introduce social measures for people in situations of hardship, provide targeted aid, operate social tariffs and adopt solidarity measures based on equalisation among the various users. They may also adopt price compensation measures for those exposed to unusually high prices for essential services.

D. Users’ rights

23. The proper functioning of essential services should be promoted by a mode of management close to the users. Those responsible for essential services should report annually on service performance, investment made, state of infrastructure, incidents and complaints. Public authorities should regularly monitor any complaints from users about essential services and ascertain the action to be taken.

24. Users of essential services should have rights as users or consumers. In particular, each user should have access to easily understandable information on essential services, their quality and rates.

25. Public authorities should consult users of both sexes and their associations before taking any major decisions on essential services. They should envisage setting up and operating advisory boards on essential services.

E. International cooperation

26. International cooperation among member countries could facilitate the availability of essential services to all. Cooperation between local authorities in border areas should be promoted to facilitate access to essential services in these areas. Public authorities of a contracting party cannot be held responsible for disruptions in the provision of essential services which are caused by the lack of implementation of a treaty by another contracting party.

CEMAT RESOLUTION No. 2

OF THE MINISTERS RESPONSIBLE
FOR SPATIAL/REGIONAL PLANNING
OF THE MEMBER STATES OF THE COUNCIL OF EUROPE (CEMAT),

ON THE PAN-EUROPEAN CHARTER FOR THE RURAL HERITAGE:
PROMOTING SUSTAINABLE SPATIAL PLANNING

“THE RURAL HERITAGE AS A FACTOR OF TERRITORIAL COHESION”

adopted at the 15th Session of the Council of Europe Conference of Ministers responsible for Spatial/Regional Planning (CEMAT), Moscow, Russian Federation, 9 July 2010

The Ministers responsible for Spatial/Regional Planning of the member States of the Council of Europe,

Considering that Recommendation Rec. (2002) 1 of the Committee of Ministers of the Council of Europe to member States on the CEMAT “Guiding Principles for Sustainable Spatial Development of the European Continent”, the Ljubljana Declaration on “The territorial dimension of sustainable development” (Council of Europe, 13th CEMAT, 2003) and the Lisbon Declaration on “Networks for sustainable spatial development of the European continent: Bridges over Europe” (Council of Europe, 14th CEMAT, 2006), stress the importance of the enhancement of territories’ endogenous resources;

Considering that these texts emphasise the value of the natural and cultural rural heritage, its protection, its role in the development of the European continent and the participation and mobilisation of communities within the framework of the governance principles;

Considering that implementation of these principles calls for enhancement of rural areas by a consistent spatial development policy and that, with this in view, the rural heritage represents a crucial asset which should be preserved and enhanced;

Pointing out that the Council of Europe has already adopted several conventions, charters and recommendations, general or specialised, dealing with the rural heritage, in particular:

– the European Charter of Architectural Heritage (1975), which deals with traditional villages, the role of heritage in memory and the integrated conservation approach;
– the European Convention on the Protection of the Archaeological Heritage, opened for signature in London on 6 May 1969, and revised in Valletta, on 16 January 1992;
– the Convention on the conservation of European wildlife and natural habitats, opened for signature in Bern, on 19 September 1979;
– the Convention for the Protection of the Architectural Heritage of Europe, opened for signature in Grenada, on 3 October 1985;
– Recommendation No. R(94)6 for a sustainable development and use of the countryside;
– the European Landscape Convention, opened for signature in Florence, on 20 October 2000;
– the Framework Convention on the Value of Cultural Heritage for Society, opened for signature in Faro, on 27 October 2007;

Considering the interest generated in several countries by the “European Rural Heritage Observation Guide – CEMAT”, of which the Ministers responsible for Regional/Spatial Planning took note at the 13th CEMAT Session (13 CEMAT (2003) 4);

Considering that this Charter, which appears as an addendum to the present Resolution, seeks to establish an operational link between the provisions of these documents and to make rural heritage a real asset to its territory, a factor and a driving force in sustainable spatial development, and to play a decisive part in making rural areas more attractive and in the town-country balance;

Adopt this Charter;
Undertake to implement it, within the limits of their resources and responsibilities;
Recommend that the governments of member States, at their various levels and in their various sectors of political action, consider the guidelines formulated below.

APPENDIX

CEMAT PAN-EUROPEAN CHARTER FOR THE RURAL HERITAGE:
PROMOTING SUSTAINABLE SPATIAL DEVELOPMENT

“THE RURAL HERITAGE AS A FACTOR OF TERRITORIAL COHESION”

The rural heritage is a real asset and resource for territories, a factor and a driving force in sustainable development of the European continent, playing a decisive part in making rural areas more attractive and in the town-country balance.

Rural areas, even the most disadvantaged, have tangible and intangible elements, assets and skills, traditions and practices of recognised societal, cultural, architectural and natural value, a testament to the past and to the present. This heritage contributes to the quality of life of the inhabitants, to the quality of the landscapes and to the attractiveness of areas both to those who live there and to those who visit them.

The countryside and its heritage are particularly vulnerable, although they offer the potential for a new type of development and rural life. The decline of rural areas could cause irreversible damage to the living conditions and the identity of their populations and thus to many aspects of heritage;

Vigilance is essential when faced with the various threats hanging over this rural heritage:

– the built and architectural heritage, threatened by changes in housing and lifestyle, the acute challenges thrown up by energy issues, the obsolete nature of former farm buildings, which are nevertheless a typical feature of vernacular architecture;

– the natural heritage and the rural landscape, threatened by land use practices, farming and forestry methods and production techniques, the building of housing estates on the edges of towns and villages, the creation of new infrastructure, climate change and damage to the environment, particularly to biodiversity;

– the intangible cultural heritage, threatened by a somewhat backward-looking view that places tradition against progress and regards as obsolete the customs and skills of a rural community doomed in decline.

It is for stakeholders and policy-makers to take full account of the guidelines set out below.

1. Knowledge and recognition of the heritage

The European continent has a rich rural heritage, shaped over the years by human activity and made up of an exceptional variety of soil types, reliefs, climates and crops.

This heritage covers areas as varied as history, architecture, archaeology, the arts, culture, in particular oral culture, techniques, skills, including food-processing skills, the environment, and natural and built landscapes.

Heritage value not being self-evident, its recognition must come through a process of growing awareness inherent in the concept of “heritage-formation”.

To place an item, object or skill (or a group of objects and skills) in a context of period, duration and space, and to pass it on to future generations, it is important to turn it into “common property” by giving it “meaning”.

In implementing policies for territories, policy-makers have a role to play in promoting the heritage process through:

– working to make citizens, in particular the young, aware of the value of the rural heritage, and to involve them in the issues related to it;

– encouraging heritage preservation through mechanisms based on negotiations with the keepers and potential users of heritage elements;

– encouraging heritage education initiatives that build on the activities of the stakeholders and organisations concerned, and that are incorporated in school or extra-curricular activities, through the teaching of certain subjects (the arts, history, literature, environmental science, etc) or in the form of awareness-raising activities (heritage classes, “exploration” classes, educational outings, etc.);

– encouraging and assisting the creation of places for the organisation of meetings, events, heritage days and forums for discussion on the heritage;

– facilitating or organising heritage recording, in particular at community level, as well as heritage research, using a combination of documentary sources and local knowledge;

_ developing research and studies directed towards updated knowledge of the rural heritage and its adaptation to contemporary realities;

– providing all rural heritage stakeholders with national and/or regional guides compiled on the basis of the Council of Europe’s “CEMAT European Rural Heritage Observation Guide”, and ensuring their distribution at local, regional, national and European levels.

2. Heritage use

The enduring nature of the heritage, which is an integral part of the heritage concept, requires us to think about how it is used.

Unless treated like a museum display, heritage items are destined to evolve. Depending on one’s viewpoint, this may involve various types of action: restoration, renovation, rehabilitation, reassignment, etc.

Since the aim is to pass the heritage on to future generations, whilst respecting its function, developing projects for it is the most appropriate way of ensuring a living future for it.

Policy-makers and users will do their best to observe the different phases in the development of a project (preliminary draft, formalisation, familiarisation, follow-up, etc.), in association with each group of potential partners, so as to reinforce and enhance it.

3. The heritage as a driving force for sustainable development

To the extent that the purpose conferred through a particular project meets the expectations of the community or of user groups, a heritage item has the potential to give impetus to cultural and economic development.

Use for economic purposes requires policy-makers and operators to take a two-pronged approach:

– striking a balance between small-scale production methods, traditional skills and innovation, making it possible to adapt to the modern world while offering alternatives to mass production,

– putting customs to practical use in tourist, craft, local or cultural products.

Legislation has provided a framework for some of these approaches, in particular in the food-processing industry, with the introduction of quality labels, but the range of opportunities is wide and should be extended to meet the high demand for authenticity and quality.

It is for policy-makers to:

– promote a type of emerging economy based on heritage, by supporting professionals and practitioners in the development of products, in particular by combining different ways of adding value. Rambling as a means of exploring an area and finding out about its skills and local produce, experiences based on the scents and flavours of the countryside, cultural routes (roads and trails, etc) on mutually complementary themes, and places devoted to particular skills are possible ways of doing so;

– use or re-use traditional methods of natural heritage conservation and management by adapting them to meet present-day requirements. Techniques for the preservation, grafting and utilisation of the genetic resources of old species and breeds are possible areas of application.

All these activities create jobs, directly or indirectly.

4. Heritage at the heart of territorial dynamics

Heritage enhancement can transform the image of the rural areas concerned.

As part of the process of making these areas more attractive and redefining them on the basis of a “living heritage”, it is vital to enlist the support and involvement of the stakeholders and communities concerned.

It is advisable to:

– provide information about the projects as well as to organise public participation;

– place economic initiatives in a wider development context;

– focus on the heritage’s cultural, social and societal dimension.

Culturally speaking, heritage enhancement represents an advantage for territories, communities and individuals. It helps to preserve cultural diversity and results in more rewarding exchanges.

Socially, heritage binds individuals together and builds a bridge between generations. In particular, it provides an opportunity to call on older members of the community, who possess knowledge and tend to be more available.

Creating a project strengthens dialogue and cohesion. In terms of the relationship with society, it contributes to people’s sense of belonging and identity. It is a vehicle for, and a means of, celebrating community life.

It has been observed that heritage can play a major part in the successful settlement of newcomers in the countryside. It is important to ensure, however, that the heritage connection does not develop into a nostalgic attachment to rural life, or a form of introverted assertion of identity.

The process of heritage enhancement requires:

- a comprehensive approach within the territory concerned, translated into a project embracing the various facets of local development, in particular the availability of services for the community;

– an internal and external communication policy on heritage features and the activities conducted;

– a strategy for exchanging information with other areas facing similar heritage issues or, better still, for sharing experience and creating networks;

– inclusion in European, national, regional and local development programmes that provide both a methodological framework for project management and financial resources.

5. The heritage and its trades and professions

Heritage preservation and enhancement are often carried out by associations, using the services of volunteers. Such persons play a key role, but if the projects and related development processes are to succeed, trained persons must be involved as well.

In order to strike a balance between amateurs and professionals, and between activism and qualified intervention, training needs to be at the forefront of policy-makers’ concerns.

The first step is to:

– list the areas of competence and the disciplines concerned, as well as the professional skills to be adapted and passed on;

– examine heritage-related local development activities;

– compile reference job descriptions;

– develop a common vocabulary;

– target the different groups of stakeholders (policy-makers, operators, heads of associations, administrative bodies, development agents, specialists, mediators, etc).

These observations and assessments can then serve as a basis for developing heritage training and education eg:

– training in the form of trade apprenticeships, combining general training and practical experience with an engineering/design element including innovation;

– multi-faceted, heritage-related training for professionals in leadership, management, mediation, promotion and marketing;

– training for trainers, in particular those working in the voluntary sector.

Delivering this training and education involves:

– enlisting the support of training institutions, including, of course, vocational training institutions, but also those offering more specific forms of instruction such as mentoring, work-shadowing, etc.

– finding diversified funding, including through sponsorship.

The process of observing activities and increasing the professionalism of those involved, which requires the support of elected representatives, should:

– ensure better qualifications and social recognition;

– facilitate occupational and social integration, especially in the case of young people and women who tend to be more involved in support and co-ordination activities;

– combat the lack of job security that can often be observed in the heritage sector, by enabling professionals to acquire a range of skills.

Such an approach helps to forge a strong social bond between local residents, as well as between different sections of society and between generations. It will only be fully effective, however, if communities are educated about the heritage in a participatory manner.

Rural communities are the driving force in the development of the areas in which they live, and purveyors of changing societal values representing cultural diversity.

The Judgment of the International Court of Justice on the Pulp Mills on the River Uruguay Case (Argentina v. Uruguay) and the Status of Environmental Impact Assessment in International Law

Wed, 21 Jul 2010 00:00:00 GMT

The International Court of Justice (ICJ) handed down on the 21st of April 2010 a very important judgment in the Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay)[1]. The importance of the judgment lies on the fact that the ICJ dealt with the Environmental Impact Assessment (EIA) connected to an activity that is liable to cause harm to a shared resource as well as transboundary harm [2], granting to it a new status.

In the same judgment, the ICJ did not uphold the claims of Argentina against Uruguay that it had breached four different substantive obligations in relation to the environmental well-being of the river. These were the contribution to the optimum and the rational utilisation of the river; the management of the soil and the woodland in a way not to impair the quality of the waters; the co-ordination of measures to avoid changes in the ecological balance; and the prevention of pollution and the preservation of the aquatic environment.

Concerning the EIA, according to the 1975 Statute of the River Uruguay[3], a treaty signed by Argentina and Uruguay at Salto (Uruguay) on 26 February 1975 and having entered into force on 18 September 1976 (hereinafter the “1975 Statute”), the parties agreed on the necessity of conducting an EIA prior to authorizing any enterprise to construct a plant, such as a pulp mill that might jeopardize the environment of the River Uruguay. Argentina accused Uruguay that it failed to produce an EIA prior to the authorization of the construction of the pulp mill; and also accused Uruguay that the EIA was conducted unsatisfactorily according to the rules of International Law. This EIA did not take into account “all potential impacts from the mill”. Such rules are included in the 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context of the United Nations Economic Commission for Europe[4] (hereinafter the “Espoo Convention”), and the 1987 Goals and Principles of Environmental Impact Assessment of the United Nations Environment Programme[5] (hereinafter, the “UNEP Goals and Principles”) adopted by UNEP Governing Council[6]. Uruguay accepted that – according to the international practice – an EIA was necessary; however, at the same time, it rejected the argument that International Law “impose(s) any conditions upon the content of such an assessment”, especially in the cases where such a project is not common to several states.

The ICJ stated[7] that the parties should carry out an EIA in order to comply with their obligations to protect the aquatic environment according the 1975 Statute. In cases where there is a risk that an industrial activity may have significant adverse impact in a transboundary context, and in particular on a shared resource, the ICJ took a step forward by considering an EIA “a requirement under general international law”[8]. This constitutes a practice that has gained much acceptance from the states in recent years. The ICJ could find references to the scope and content of an EIA either in general International Law or in the 1975 Statute[9].

It has to be noted that the EIA has been given the status of “environmental standard” by several environmental regimes, such as the 1976 Barcelona Convention for the Protection of the Mediterranean Sea Against Pollution[10], after the 1995 amendments[11]. On the other hand, the EIA has been given explicitly the status of duty of states only by certain environmental regimes and only within these regimes, such as the Espoo Convention[12]. The Trail Smelter Case (1938)[13]and the “Principle 17” on the EIA of the 1992 Rio Declaration on Environment and Development[14] have not been granted the EIA with the status of international duty.

At the same time, the ICJ, although it seemed to have taken into account "that consultation by Uruguay of the affected populations - on both the Argentinean and the Uruguayan sides - did indeed take place"[15], took the view that there is no legal obligation to consult the affected populations[16]. No doubt, this is a rather questionable approach, given that “public consultation” constitutes a very important element of modern international environmental regimes, such as the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters [17]or the Espoo Convention[18]. Similar developments have taken place in the context of the European Union as is evidenced by a series of Directives, e.g. the Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the Assessment of the Effects of Certain Plans and Programmes on the Environment[19], the Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 Providing for Public Participation in Respect of the Drawing Up of Certain Plans and Programmes Relating to the Environment and Amending with Regard to Public Participation and Access to Justice Council Directives 85/337/EEC and 96/61/EC [20]and the Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on Public Access to Environmental Information and Repealing Council Directive 90/313/EEC[21].

Concerning the legal framework of the case, the ICJ pointed out that “neither the 1975 Statute nor general international law specify the scope and content of an environmental impact assessment” and that Argentina and Uruguay are not parties to the Espoo Convention[22]. On the other hand, the ICJ noted that the UNEP Goals and Principles are not a binding instrument for either of the two states. As guidelines from a technical body within the UN system, they have to be taken into account by each state when adopting internal regulatory measures. The ICJ avoided giving any kind of content to the EIA. In its view “it is for each State to determine in its domestic legislation or in the authorization process for the project, the specific content of the environmental impact assessment required in each case, having regard to the nature and magnitude of the proposed development and its likely adverse impact on the environment as well as to the need to exercise due diligence in conducting such an assessment.” The ICJ also considered that prior to any environmental project, an EIA must be conducted. This EIA has to monitor the effects of any project on the environment.

Interestingly enough, the ICJ finally ruled on the parties’ use of experts. According to the Statute of the Court[23], experts who are called as witnesses before the ICJ, they are examined by the parties and the ICJ[24]. Nevertheless, in most cases experts were presented before the ICJ as counsels or advocates, and as a result they could not be subject to questioning by the other party and the ICJ. Instead, the ICJ considered that it would have been more useful had they been presented as expert witnesses [25].

Endnotes

Available at http://www.icj-cij.org/docket/files/135/15877.pdf (last visited July 20, 2010) (hereinafter, “Judgment”).
Judgment, supra n. 1, para. 203 and so on.
UNTS, vol. 1295, No. I-21425, p. 340.
UNTS, vol. 1989, p. 309.
UNEP/WG.152/4 Annex (1987).
14th Sess, Dec. 14/25 (1987).
Judgment, supra n. 1, para. 204.
Ibid., para. 204.
Ibid., para. 205.
15 ILM (1976), p. 290.
Art. 4(3)(c).
Art. 2(2).
III UNRIAA, p. 1905.
31 ILM (1992), p. 874.
Judgment, supra n. 1, para. 219.
Ibid., para. 216.
Arts. 6 - 8, 38 ILM (1999), p. 517.
Art. 5.
OJ L 197 (21/7/2001), p. 30.
OJ L 156 (25/6/2003), p. 17.
OJ L 41 (14/2/2003), p. 26.
Judgment, supra n. 1, para. 205.
Art. 51 ; and Rules of Court arts. 57 and 64.
Judgment, supra n. 1, para. 165 – 168.
Ibid., para. 167.