2002 World Summit on Sustainable Development: Expanding Opportunities to Grow Your Practice in Environmental Dispute Resolution

Ann MacNaughton

Challenges associated with creating “sustainable solutions” where conflicts arise in simultaneous quests to achieve both economic development and also protection of the ecological and social environment are generating expanding opportunities for environmental dispute resolution (EDR) in many different contexts – including the global initiatives and Type 2 partnerships emerging from the recent World Summit on Sustainable Development (WSSD).

Held under the auspices of the United Nations in Johannesburg, South Africa, during the period Aug. 26 to Sept. 4, 2002, the World Summit focused on “how to make it happen.” According to the United Nations Development Programme, over 50,000 people participated from over 190 governments, inter-governmental and non-governmental organizations (including the American Bar Association), the private sector, civil society, academia, and the scientific community attended it and more than 150 parallel events. See http://www.undp.org/wssd/.

That “how to” question lies at the heart of the assisted negotiation strategies and other environmental dispute resolution tools and techniques for achieving sustainable (mutually agreeable and enduring) solutions that are the subject of the Section and ABA Publishing’s new book, Environmental Dispute Resolution: An Anthology of Practical Solutions, first released at the World Summit. As a member of the ABA Delegation to the World Summit, and the Section’s designated representative at the Summit and the linked EnviroLaw Conference in Durban, I had the honor of addressing diverse audiences on the questions of “how to” achieve sustainable solutions through “alternative” or “appropriate” dispute resolution (ADR) processes that use neutral facilitators to assist interest-based negotiation. “How to” make it happen is also the focus of the two presentations involving ADR Coordinating Group members at the March 20-22 San Antonio conference sponsored by the ABA Dispute Resolution Section. The book and both programs are described elsewhere in this newsletter.

The primary WSSD goal was to achieve agreement on a detailed plan for global economic development that will protect the environment while making progress against hunger and poverty. A comprehensive report is beyond the scope of this short article, but the following paragraphs provide background, context, and a short summary, with emphasis on “Type 2” partnership agreements and other multi-stakeholder initiatives likely to be of particular interest to energy, environmental and resource dispute resolution practitioners.

2002 World Summit Background and Context. The 1972 U.N. Conference on the Human Environment (Stockholm Conference) laid the foundation for international consensus that it is the responsibility of governments to protect and improve the environment for both present and future generations. (See generally Lynton K. Caldwell, International Environmental Policy (3d ed. 1996) at 48-78.) In 1983, the U.N. General Assembly established the World Commission on Environment and Development to establish a global agenda for recommended changes essential to achieve sustainable development by the year 2000 (World Commission on Environment and Development (Brundtland Commission), OUR COMMON FUTURE (1987) at ix-xv). Echoing the preamble of the National Environmental Policy Act of 1969 (NEPA), the World Commission on Environment and Development (Brundtland Commission) in 1987 defined “sustainable development” as development “that meets the needs of the present generation without compromising the ability of future generations to meet their own needs.”

Dr. Lynton Caldwell, a principal architect of the U.S. National Environmental Policy Act of 1969, has defined “sustainable development” as “the meeting of today’s true needs and opportunities without jeopardizing the integrity of the planetary life-support base – the environment – and diminishing its ability to provide for needs, opportunities, and quality of life in the future.” Caldwell, supra note 1, at 243. To be sustainable, development must possess both economic and ecologic sustainability, a concept which is viewed quite differently by industrialists, economists, planners, and environmental and ecological scientists and has generated a large literature. Id. at 275 n. 71 (citing selected examples). See generally, Ann L. MacNaughton and Jay G. Martin, Environmental Conflict Management and Dispute Resolution, in Ann L. MacNaughton and Jay G. Martin, eds., Environmental Dispute Resolution: An Anthology of Practical Solutions (ABA 2002), notes 1-15 and accompanying text.

Agenda 21 is the global plan of action adopted by more than 178 governments at the 1992 United Nations Conference on Environment and Development (UNCED), held in Rio de Janeiro, Brazil, on-line at http://www.un.org/esa/sustdev/agenda21.htm. A significant institutional outcome of UNCED was the establishment of the Commission on Sustainable Development (CSD) in December 1992, to ensure effective follow-up of UNCED. See http://www.johannesburgsummit.org/html/basic_info/csd.html. Ten years later, the 2002 World Summit on Sustainable Development was convened in Johannesburg, South Africa, to focus on “getting it done” through various implementation strategies.

The Official Negotiations. Official Summit outcomes include two negotiated documents (“Type 1” agreements):
(1) The Johannesburg Declaration on Sustainable Development, on-line at
http://www.johannesburgsummit.org/html/documents/summit_docs/1009wssd_pol_declaration.doc; and
(2) The World Summit Plan of Implementation, on-line at http://www.johannesburgsummit.
org/html/documents/summit_docs/plan_final1009.doc (advance unedited text). See generally, http://www.johannesburg summit.org/index.html.

Seven Partnership Plenaries. In May 2002, U.N. Secretary-General Kofi Annan proposed the “WEHAB Initiative” for the WSSD, five key areas for focus and the development of implementing partnering initiatives (see http://www.tomorrow-web.com/2002/may/020517.html):

• Water – provide access to at least 1 billion people who lack clean drinking water and 2 billion people who lack proper sanitation.
  
• Energy – provide access to more than 2 billion people who lack modern energy services, promote renewable energy, reduce over-consumption and ratify the Kyoto Protocol to address climate change.
  
• Health – address the effects of toxic and hazardous materials; reduce air pollution; and lower the incidence of malaria and African guinea worm, linked with polluted water and poor sanitation.
  
• Agricultural productivity – work to reverse land degradation, which affects about two-thirds of the world’s agricultural lands.
  
• Biodiversity and ecosystem management – reverse processes that have destroyed half of the world’s tropical rainforest, threaten 70 percent of its coral reefs and are decimating the world’s fisheries.

Relevant UN agencies prepared WEHAB Framework Papers in August 2002 to provide focus and catalyze action (on-line at http://www.johannesburgsummit.org/html/documents/wehab_papers.html).

Seven plenaries on these WEHAB issues, cross-cutting issues, and regional implementation took place during the first week of the Summit. Cross-cutting issues included finance and trade, technology transfer, consumption and production patterns, education, science, capacity building, and information. See http://www.johannesburgsummit.org; http://www.iisd.ca/linkages/2002/wssd.

Side Events. Side events took place in the margins of the official inter-governmental meetings, organized for the purpose of sharing experiences and increasing opportunities for dialogue among participants in the official meetings. An 8-page list of such meetings is available on-line (last updated August 25) at: http://www.johannesburgsummit.org/html/documents/summit_docs/2408_public_webtable.pdf;
http://www.undp.org/wssd.

Public Participation. In advance of the Summit, the U.N. Commission on Sustainable Development encouraged governments and civil society organizations to develop initiatives to address key sustainable development problems. For example, the U.S. Environ-mental Protection Agency pursued partnerships regarding clean air, safe drinking water, oceans protection, environmental governance, sound science and children’s health. See http://www.epa.gov/international/WSSD/type2.html.

The Summit thus generated not only Type 1 outcomes requiring global agreement (the Johannesburg Declaration and the World Summit Plan of Implementation), but also Type 2 partnerships, requiring only the commitment of the partners, and other initiatives to achieve sustainable development objectives: http://www.johannesburg
summit.org/html/sustainable_dev/partnership_initiatives.html (listing Type 2 initiatives); http://www.johannesburgsummit. org/html/documents/prep2final_papers/wssd_description_of_partnerships2.doc; http://www.johannesburgsummit.org/html/documents/summit_docs/2908_partnership summary.pdf(a 99-page “brief summary” of information available on hundreds of proposed Partnership Initiatives known as of Aug. 16, 2002 to the Secretariat for the World Summit on Social Development).

Over 150 additional events – known as parallel events – took place in the Johannesburg area at about the time of the Summit, convened and managed by organizations or groups independent of the United Nations. Numerous initiatives were announced, and others are still being developed. This preliminary report focuses on only a few of them; information regarding many more of them may be found (and are continuing to emerge) on-line at http://www. johannesburgsummit.org/html/basic_info/parallel_events.html.

Environmental Dispute Resolution (EDR) Initiatives. While it is premature to attempt even a listing of all WSSD initiatives, much less to prioritize their significance to EDR practitioners, nevertheless these five deserve mention:

(1) Global Judges Symposium (Aug. 18-20):

Sponsored by the United Nations Environment Programme (UNEP) and hosted by South Africa’s Chief Justice Arthur Chaskalson, the Global Judges Symposium engaged chief justices and other senior judges from more than 100 countries to develop the Johannesburg Principles on the Role of Law and Sustainable Development. Presented to the Summit on Aug. 29, the Johannesburg Principles call for (among other things):

• Improving judicial, legislative, and other capacity to carry out the promotion, implementation, development, and enforcement of environmental law on a well-informed basis, equipped with the necessary skills, information and material;

• Improving the level of public participation in environmental decision-making, access to justice for the settlement of environmental disputes, defense and enforcement of environmental rights, and public access to relevant information;

• Strengthening sub-regional, regional, and global collaboration and information exchange;

• Strengthening environmental law education, including research and analysis;

• Achieving sustained improvement in compliance, enforcement, and development of environmental law,

• Strengthening the capacity of organizations and initiatives, including the media, that seek to enable the public to fully engage on a well-informed basis;

• Creating an Ad Hoc Committee of Judges, to be headed by the chief justice of South Africa, and representing geographical regions, legal systems, and international courts and tribunals, to review and publicize the emerging environmental jurisprudence and provide information about it;

• Supporting the Ad Hoc Committee through UNEP and its partner agencies, including civil society organizations;

and

• Achieving priority financing through governments of the developed countries and the donor community, including international financial institutions and foundations.

(2) Durban Statement (EnviroLaw 2002 Recommendations):

The Aug. 22-25 Durban EnviroLaw Conference was convened by EnviroLaw Solutions, a unit of South Africa’s largest law firm Edward, Nathan and Friedland, and supported by the United States (State Department, EPA, DOJ, AID) and numerous other governments; the World Bank; the United Nations (UNEP, UNDP); many NGOs and international networks; and various international judicial and bar associations. It too produced a “Type 2” partnership initiative, which it presented to the Summit on Aug. 29. The Durban Statement recommends:

• Development and promotion of the use of indicators and an Environmental Law Enforcement Index, such as that recommended by the government of the Netherlands and others, which can provide a component for further cooperation with partners to develop a future Sustainable Development Law Enforcement Index;

• Undertaking a focused capacity-building initiative in effective domestic development, enforcement, and monitoring of environmental law, and further sustainable development law, to train legal professionals, negotiators, investigators, compliance officials, mediators, legislators, executives, civil society including community based groups and academia, and the media (which can develop an initial focus in the Southern African Development Community), which also should focus on domestic implementation and enforcement of international agreements in the field of sustainable development, especially in connection with domestic laws that are transnational in nature;

• Undertaking projects to raise awareness of domestic, regional and international environmental law and governance, and further advance international law in the field of sustainable development, with a particular focus on citizen access to justice; effective remedies and enforcement; citizen environmental, social and economic rights; and sustainable development policy-making in the domestic context of developing countries; and involving the broader public, law firms and other private sector actors (labor organizations; civil society, especially NGOs and academia; regional and international networks; and the media); and

• Undertaking a regional partnering initiative in southern Africa to encourage greater participation, implementation and enforcement of domestic environmental law, including laws that implement international agreements, and to strengthen the progressive development and codification of environmental law and governance and other law in the field of sustainable development.

(3) International Sustainable Development Legal Partnership

Montreal’s Centre for International Sustainable Development Law is leading this Type 2 initiative with three principal objectives:

• Founding a user-friendly Web-based legal resource center, involving developed and developing country jurists, to assess, promote and implement the integration of international social, economic and environmental law;

• Legal research and capacity building in international sustainable development law (ISDL) to assist governments, NGOs, judges and local communities effectively to address inter-linked environmental, economic and social challenges; and

• A series of policy and educational publications on ISDL, to be made widely accessible to scholars, decision-makers and civil society, particularly in developing countries.

(4) IUCN Environmental Law Programme Capacity Building Initiative

The goal of this project is for every country to have the capacity to take part in the international policy debate, to implement what is agreed through coordinated policies, laws and institutions, and to ensure effective compliance with environmental laws. Key mechanisms include academic education, practical training, expert forums, internationals experience, publications, technical assistance and information.

(5) ECOLEX –Global Partnership for Information on Environmental Law

A second IUCN-initiated Type 2 partnership focuses on increasing access to authoritative information on environmental law by establishing a single gateway on the Internet (ECOLEX) and publishing a range of products on specific topics. The effort will build on the legal information holdings of UNEP, FAO and IUCN. The first information to appear on ECOLEX will be treaties, national legislation, legal literature, and court decisions.

Water Dome. Sponsored by the African Water Task Force, with the International Water Management Institute and numerous additional partners including the European Commission, six full days of water-related events engaged an estimated 12-15 thousand Summit participants (including more than 100 ministers and many heads of state and international agencies) across all stakeholder groups for focused interdisciplinary attention to six identified priorities: (1) regional integration and finance; (2) food security; (3) the nature of water as a “public good” and also as a gift from nature, an inextricable element of our delicate ecosystems, and a heritage that must always be passed on to the next generation undamaged; (4) energy and climate, including the need for water management strategies that can deal with increasing climate variations and impending climate change; (5) health and poverty; and (6) the requirement for global approaches to questions of how to deal with trade in water and water service; the defining of acceptable conditions for private sector involvement in water delivery; corruption; and the question of whether or not water - like for example health, agriculture and telecommunications – requires a formal intergovernmental organization.

Significant outcomes included, among others, the new Incomaputo Regional Water Sharing Agreement between South Africa, Swaziland, and Mozambique, signed into effect on Aug. 29 at the Water Dome, and the EU-Africa Water Initiative for technology sharing and financial support, launched at the Water Dome on Sept. 3, 2002. More information is at www.waterdome.net. (The EU also announced good governance, energy, and health initiatives. See http://europa.eu.int/comm/environment/wssd/eu_preparations_en.html.)

Five U.S. Government Partnership Initiatives. The U.S. government announced these partnership initiatives on Aug. 29:

(1) “Water for the Poor Initiative” expands access to clean water and sanitation services, improves watershed management, and increases the efficiency of water in industrial and agricultural activities, to help achieve the U.N. Millennium Declaration Goal of cutting in half by 2015 the proportion of people who lack safe drinking water. Under this initiative, the United States will invest $970 million over three years, which can leverage private resources to generate more than $1.6 billion for water-related activities globally.

(2) “Clean Energy Initiative” seeks to provide millions of people with new access to energy services, increase the efficiency of energy use, and significantly reduce readily preventable deaths and respiratory illnesses associated with motor vehicle and indoor air pollution. Under this initiative, the United States proposes investment of up to $43 million in 2003 to leverage about $400 million in investments from the United States and other governments, the private sector and development organizations.

(3) “Initiative to Cut Hunger in Africa” to spur technology sharing for small-holders, strengthen agricultural policy development, fund higher education and regional technology collaboration, and expand resources for local infrastructure in transportation, marketing and communications. The United States will invest $90 million in 2003, including $53 million to harness science and technology for African farmers and $37 million to unleash the power of markets for smallholder agriculture.

(4) “Congo Basin Forest Partnership” to promote economic development, alleviate poverty, improve governance and conserve natural resources in six Central African countries – Cameroon, Central African Republic, Democratic Republic of Congo, Equatorial Guinea, Gabon and Republic of Congo. The United States intends to invest up to $53 million over the next 4 years to support sustainable forest management and a network of national parks and protected areas and to assist local communities, matched by contributions from international environmental organizations, host governments, G-8 nations, the European Union, and the private sector.

(5) Health Initiative. The U.S. government reaffirmed its commitment to help fight HIV/AIDS, tuberculosis and malaria through financial and technical support for the Global Fund and the International Mother and Child HIV Prevention Initiative to help achieve the Millennium Development Goal of halting by 2015 the spread of HIV/AIDS and the scourge of malaria and other communicable diseases. Its bilateral programs and research will contribute to that effort. In addition, the administration has requested $1.2 billion in 2003 to combat these diseases.

Global NGO Forum. A Civil Society Global Forum, held from Aug. 19 to Sept. 4 at the Expo Centre (NASREC) located to the south of Johannesburg, was open to representatives of all of the Major Groups identified in Agenda 21: (1) women, (2) children and youth, (3) indigenous people, (4) non-governmental organizations (NGOs), (5) farmers, (6) local authorities, (7) workers and unions, (8) business and industry, and (9) the scientific and technological community. On-line links to these major groups, and many if not all of their Summit activities and results, are on-line at http://www.un.org/esa/sustdev/mlinks.htm.

Business Forum. Business Action for Sustainable Development (BASD) was a comprehensive network of business organizations, a joint initiative at the Summit of the International Chamber of Commerce (ICC) http://www.iccwbo.org/sdcharter/corp_init/icc-unep/index.asp and the World Business Council on Sustainable Development http://www.wbcsd.ch/. See generally http://www.basd-action.net. Also see http://www.basd-action.net/resources/links.shtml (links to relevant resources), http://www.basd-action.net/initiatives/index.php (links to business partnership initiatives), http://www.basd-action.net/activities/business.shtml (links to “Lekgotla: Business Day” speeches, press releases, and articles), and http://www.basd-action.net/docs/releases/20020904_convers.shtml (with more links, and summarizing the business conclusion to the WSSD: in the words of Elvis Presley, “a little less conversation, a little more action”).

The Global Reporting Initiative (GRI) was established in late 1997 to develop globally applicable guidelines for reporting on the economic, environmental, and social performance by organizations. Convened by the Coalition for Environmentally Responsible Economies in partnership with the United Nations Environment Programme, it incorporates the active participation of corporations, NGOs, accountancy organizations, business associations and other stakeholders from around the world. At WSSD, it introduced its 2002 Sustainability Reporting Guideline at the WSSD. See generally, http://www.globalreporting.org/AboutGRI/Overview.htm.

Local Government Session. The International Council for Local Environmental Initiatives (ICLEI) coordinated local government input to the Johannesburg Summit. At “Local Action Moves the World” it presented the key messages from the Local Government Dialogue Paper, the official representation of the local government position, to the Summit and the world. See http://www.iclei.org/rioplusten/declaration_eng.html.

Implementation Conference. The Implementation Conference focused on development of “type 2” partnership initiatives to further the implementation of international agreements in four issue areas: energy, freshwater, food security and health. Impacting policy-making was not the primary concern of the participants, who met to agree action to implement existing (and emerging) policy agreements. Its Initial Report (Aug. 27, 2002) is on-line at http://www.earthsummit2002.org/ic/.

Emerging Opportunities for EDR Practitioners

Environmental decision-making must take into account a delicate but requisite long-term balance between human activity and nature’s ability to renew. The use of mediation in environmental and natural resource cases is becoming a standard part of the litigation and dispute resolution process. Business and governmental organizations know that an early focus on issue identification and problem-solving can create substantial new value, as well as save costs by avoiding disputes and litigation. Early resolution of disputes and lawsuits also can create new solutions, even if the process sometimes may require the same investment of time and money as the litigation process can entail.

While collaborative problem-solving may not always be cheaper than the litigation or arbitration alternative (depending on how “cost” is measured), it almost certainly will be more effective in developing enduring solutions and protecting important relationships. New and emerging Type 2 partnerships create a new realm of opportunity for dispute resolution practitioners to add value in complex and emotionally volatile multi-stakeholder disputes.