Elisa Morgera

Corporate Accountability in International Environmental Law

List of Acronyms Table of Treaties and International Materials Table of Cases PART I: PRELIMINARY QUESTIONS 1. The Need for Corporate Environmental Accountability 2. History and Definitions 3. The Shortcomings of Traditional Legal Solutions PART II: EMERGING INTERNATIONAL STANDARDS OF CORPORATE ENVIRONMENTAL ACCOUNTABILITY 4. Primary Rules? 5. The UN and the OECD: Parallel or Convergent Paths? 6. A Contribution of Human Rights Monitoring Bodies? 7. Standard-setting by International Financial Institutions 8. Emerging Standards on Corporate Accountability in IEL PART III: TOOLS FOR COMPLIANCE WITH STANDARDS OF CORPORATE ENVIRONMENTAL ACCOUNTABILITY 9. Tools for Compliance 10. The Tools of International Financial Institutions: Conditions in Loan Agreements and Complaints Mechanisms 11. Sharpening the Monitoring Role of Other International Organizations 12. Integrating International Standards in UN-Business Partnerships 13. Conclusions Bibliography Index

The ecosystem approach and the precautionary principle

The ecosystem approach can be considered the landmark regulatory strategy of the Convention on Biological Diversity (CBD) and other biodiversity-related conventions. While it has had a growing influence in the further development of international biodiversity law, as well as in other areas of international law, legal scholarship is surprisingly thin with regard to the status and implications of the ecosystem approach. This chapter discusses the evolution of the ecosystem approach as a landmark regulatory feature of the CBD and breaks it down into its interrelated components. To that end, the chapter also explores the interplay between the ecosystem approach and the precautionary principle, and the role of the former in ensuring mutual supportiveness among biodiversity-related conventions, as well as with international human rights law. The chapter concludes by highlighting overarching legal research questions concerning the ecosystem approach that await clarification.

Whale Sanctuaries: An Evolving Concept within the International Whaling Commission

This article analyzes the practice of the International Whaling Commission (IWC) up to 2003 in establishing and regulating international whale sanctuaries, in order to ascertain whether an evolution has taken place in the conservation approach involved. An examination will be made of the IWCs decisions, resolutions, and reports of the Annual Meeting, and of recent proposals presented to the IWC. The results will lead to the identification of a corpus of legal documents supporting the conclusion that an evolution from the mere prohibition of commercial catches to a more comprehensive protection through international whale sanctuary has taken place, even if it has been in a slow and reactive manner.

Against All Odds: The Contribution of the Convention on Biological Diversity to International Human Rights Law

This chapter argues that the Convention on Biological Diversity (CBD) has made in time, and against all odds, a significant conceptual and normative contribution on the linkage between human rights and the environment. In particular, the development of the legal concept of benefit-sharing has provided a solid and innovative bridge between international environmental law and human rights law, and has surpassed in conceptual sophistication parallel discussions within international human rights processes. The chapter develops this argument by looking at several areas of international law and policy where the CBD has contributed to strengthening the link between environment and human rights, namely: the substantive rights of indigenous peoples and local communities to genetic resources and associated traditional knowledge; the substantive rights of indigenous peoples and local communities concerned by conservation and sustainable use of biological resources; corporate accountability; and climate change. Keywords: biological resources; Convention on Biological Diversity (CBD); international environmental law; international human rights law; international policy

The 2010 Nagoya Protocol on Access and Benefit-Sharing in Perspective: Implications for International Law and National Implementation

The 2010 Nagoya Protocol on Access and Benefit-sharing in Perspective analyses the implications of this innovative environmental treaty for different areas of international law, and its implementation challenges in various regions and from the perspectives of various stakeholders.

The Need for an Interdisciplinary Approach to Norm Diffusion: The Case of Fair and Equitable Benefit‐sharing

No systematic study discusses the evolution of fair and equitable benefit‐sharing across various areas of international law (environment, human rights, oceans), as well as at different levels of regulation (regional and national laws and guidelines, private law contracts, transboundary codes of conduct, customary laws of indigenous peoples and local communities). This article explores the usefulness of an interdisciplinary approach to the study of norm diffusion for understanding how and why fair and equitable benefit‐sharing is articulated in different sites. The article discusses mechanisms, actors and frames in norm diffusion, drawing on literature from sociology, international relations and law. The article uncovers underlying similarities in scholarship on norm diffusion across the disciplines considered. It also reflects on the value of an interdisciplinary approach that encourages legal scholars to consider the implications of power structures in the diffusion of law, while the nuances of legal knowledge may lead other social scientists to revisit accepted findings on norm diffusion. These findings appear particularly useful for informing an assessment of the potential of fair and equitable benefit‐sharing to promote the conservation and sustainable use of natural resources in a fair and equitable manner in the face of power asymmetries.

The need for an interdisciplinary approach to norm diffusion

No systematic study discusses the evolution of fair and equitable benefit‐sharing across various areas of international law (environment, human rights, oceans), as well as at different levels of regulation (regional and national laws and guidelines, private law contracts, transboundary codes of conduct, customary laws of indigenous peoples and local communities). This article explores the usefulness of an interdisciplinary approach to the study of norm diffusion for understanding how and why fair and equitable benefit‐sharing is articulated in different sites. The article discusses mechanisms, actors and frames in norm diffusion, drawing on literature from sociology, international relations and law. The article uncovers underlying similarities in scholarship on norm diffusion across the disciplines considered. It also reflects on the value of an interdisciplinary approach that encourages legal scholars to consider the implications of power structures in the diffusion of law, while the nuances of legal knowledge may lead other social scientists to revisit accepted findings on norm diffusion. These findings appear particularly useful for informing an assessment of the potential of fair and equitable benefit‐sharing to promote the conservation and sustainable use of natural resources in a fair and equitable manner in the face of power asymmetries.

The EU and Environmental Multilateralism: The Case of Access and Benefit-Sharing and the Need for a Good-Faith Test

This paper discusses the need for a good-faith test for assessing the legitimacy of ongoing and future EU initiatives aimed at contributing to the development and implementation of international environmental law. A test that is based on the international legal principle of good faith may serve to better understand when the EU is effectively supporting environmental multilateralism to the benefit of the international community, rather than seeking to unduly influence it purely for its own advantage. The test is developed on the basis of EU efforts of contributing to climate change multilateralism, and is applied to a much less studied case: the adoption and implementation of the Nagoya Protocol on Access to Genetic Resources and Benefit-sharing under the Convention on Biological Diversity.

Tourism for Sustainable Mountains Development: A Comparative Law Perspective

This contribution aims to assess whether existing mountain laws at the regional and national levels are equipped to ensure environmental protection in regulating and promoting mountain tourism, in the light of relevant guidance provided by the Convention on Biological Diversity. Two major challenges are identified: ensuring the full and effective participation of mountain communities in decision-making related to mountain tourism development, and the fair and equitable sharing of the benefits arising from sustainable mountain tourism.

Biodiversity and Nature Protection Law

The unprecedented degradation of the planet’s vital ecosystems and species, and the consequent damage to the variability of life on Earth, are one of the most pressing issues confronting the international community. The purpose of this volume of the Elgar Encyclopedia of Environmental Law is to provide a critical assessment of international biodiversity law in the face of the failed attempts to reduce the global trend in irreversible biodiversity loss and the need to increase efforts, including through indirect drivers of change such as institutions, governance and legal frameworks.