TOWARDS AN ENERGY AND NATURAL RESOURCES POLICY IN ICELAND BASED ON A STRONG SUSTAINABLE DEVELOPMENT APPROACH – A VIEW FROM EUROPEAN AND INTERNATIONAL LAW

(I still have to insert all graphics which I will do later) 

 

1. A NEW POLICY BASED ON A SUSTAINABLE APPROACH IS NEEDED

In the field of environmental law and due to the current economic situation that Iceland is going through, I will argue that we need to follow  the principle of precaution and adopt a policy in the field of energy and natural resources law based on a strong approach of sustainable development. In this sense, we should take into account the experience of South American and African countries in the last century  where following gigantic debt pressures, wrong policies were adopted concerning the exploitation of natural resources under the advice of the IMF. I refer here to the work of Nobel Prize J. Steiglitz (Globalization and its discontents) and Naomi Klein (The shock doctrine) which offer hard evidence of the mistakes done in the past which we should avoid. We should obviously look for countries which offer the opposite experience and Norway is the best example that I have found so far.

We need a energy policy based on the concept of strong sustainable development. And what do we mean by  “sustainable development“? All specialists in the field recognise the definition given by the  Brundtland Commission as the guiding light of their action:

 “Sustainable Development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. 

Brundtland Commission. “Our Common Future”  1987[i]

 

This definition implies the dual goal of securing intragenerational and intergenerational justice, that is to say, to exploit natural resources or natural capital in a way that social justice is achieved, both between different generations living at this moment and between us and future generations still unborn.

The definition of sustainable development also states the goal of necessary integrating environmental, social and economic policies within one approach. The approach was confirmed by the international conference called “Earth Summit” held under the auspices of the UN in 2002.

 This implies leaving behind the classical approach to economic activity and adopting a new approach based on the three pillars of sustainable development. Different models of sustainability exist and I argue that a strong sustainability model is the best suited for our purposes.

The neoclassical economic model (measured by GDP) 

 

 

 

 

Different approaches or models of sustainable development

 

 

 

 Weak sustainability

Strong sustainability

 

A sustainable approach to a new energy policy means that social, economic and environmental pillars must be connected, inter-related, because thay are interdependent. Within this approach, pillars are of equal importance (you can’t ignore or give a higher priority to any of them).

In the context of a new approach we should ask ourselves whether we need to measure progress not with GDP but with the Genuine Progress Indicator (alternative to Human Development Index).  A further example of an alternative index to measure progress is the national happiness index adopted by the Kingdom of Bhutan in its new Constitution currently under study of Nobel Prize Stieglitz and French President Sarkozy.

 

 

 

 

 

 

 

 

 

 

 

2. NEUTRALITY OF EU LAW REGARDING OWNERSHIP OF NATURAL RESOURCES AND PROPERTY RIGHTSEU/EEA

Member States have national sovereignty over their natural resources and are free to decide the system of public/private property ownership, rights and duties and rules of exploitation. European law does not have a direct impact on property rights. Public/private ownership is a matter for each State to decide in respect of current international and European law in force. In general, European law (EU and EEA law) requires the respect of non-discrimination principle between nationals/undertakings and other EEA citizens/companies. This is essential for the correct functioning of the European internal market of energy. But three precisions must be made that are essential in this regard:

1) Energy is a strategic industry that is strongly related to national sovereignty, public security and public order. Ensuring security and independence of energy supply for a country may constitute a public security concern and is therefore a legitimate aim capable of justifying a restriction on the free movement within the EU/EE.

2) The principle of non-discrimination does not obligatory extend to foreign companies, as EU/EEA law stands today. EU/EEA countries can adopt different policies regarding the rights of foreign companies outside the EU/EEA.

 3) Furthermore, EU energy policy allows for derogations in case of isolated markets or situation where a company has less than 100.000 connected users (ie. households) such as is the case in Iceland. Iceland could very well derogate from the general regime and, for reasons unknown to the author, it opted not to do so when incorporating the general EU energy package in to the EEA legal order (see Opinion of the European Commission on the application of Iceland to join the EU – 24 February 2010 and analytical Report where it is stated that Iceland did not use the derogations permitted under the current EEA Agreement and the Commission acknowledges that these derogations are still available for Iceland during negotiations).

Iceland can therefore adopt a new energy and natural resources policy adopting its independent regime of legal ownership with a sustainable development approach and negotiate with the European Union the derogations for which it duly qualifies as a small isolated market.More research is needed in comparative European energy law. Diversity exists within the EU and EEA countries and this is a new fresh area of European law still under the process of development (see webpage http://ec.europa.eu/environment/natres/titles1_2.htm).

 The leading country, to the best of my knowledge, in the field of hydro-power energy and exploitatin is Norway. We should therefore study their policy and legislative framework very thoroughly.

France has adopted a new law in July 2010 called “Grenelle 2” following the aims of the "Grenelle Environment Round Table" (as it might be called in English),  a process launched by the President of France in 2007 in order to define the key points of public policy on ecological and sustainable development issues for the coming years. What is specially interesting about this law is the legislative process that was open to the civil society. The new law adopted on the 13^th July 2010 and is available at the website http://www.legrenelle-environnement.fr/spip.php?article1388

 France – Loi Grenelle 2 – Legislative process with participation of civil society

 

 

 

3. PROPERTY RIGHTS AND NATURAL RESOURCES.  

There is abundant literature on the subject of property rights and natural resources that should be explored. For the international organization World Bank, which has the mission to fight against poverty and promote development, it seems that there is no perfect system of ownership as all systems presents pros and cons. In the book Property rights and the environment: social and ecological issues by Susan Hanna and Moahn Munasinghe, World Bank Publications, 1995, p. 15 and forward,  a description is done on classical systems of property rights, resource use and property rules. Their conclusion is that what matters most is the consistency of property rights with social goals, the adoption of a sustainable approach  to avoid the classic „tragedy of the commons“ (overexploitation of natural resources) and the enforcement of the use resource rules. Attention must be paid to the fact that this publication is from 1995 so that more research is needed on this point to  determine the current approach of international organisations such as the World Bank towards property rights and natural resources. 

4. PERMANENT SOVEREIGNTY AND PEOPLES´S OWNERSHIP OF NATURAL RESOURCES IN INTERNATIONAL LAW. THE WAY AHEAD

We must refer to international law because European law has not developed yet a theory/policy/model on the area of natural resources that Iceland has (hydropower resources).  In the article “Permanent Sovereignty And Peoples' Ownership Of Natural Resources In International Law“, by Duruigbo, Emeka, in The George Washington International Law Review , no1, 2006, (available at website http://www.allbusiness.com/legal/international-law/1086332-1.html), we find an exposition of the principle of permanent sovereignty over natural resources in international law.

This article explains its evolution and scope of application arguing that the right to sovereignty over natural resources resides in the people with a correlative duty on states to manage these resources for the people's benefit. The authors also examine recent proposals dealing with empowerment and ownership of natural resources which could be adopted by states as an expression of their recognition of peoples' ownership and reviews the experience of Norway, which – in view of the authors, has demonstrated that national leaders can be effective stewards of natural resources and public wealth.

The authors explain that the the most significant expression of the principle of permanent sovereignty over natural resources is contained in General Assembly Resolution 1803 (XVII) of 1962 which declares that both people and nations have a right to exercise sovereignty over natural resource. On the basis of the current development of international law, the authors argue that:

“First, the right to permanent sovereignty over natural resources is vested in peoples, not states, though states retain a pivotal role insomuch as government exercises the right to permanent sovereignty.

Second, the term "peoples" should be used to denote the owners of natural resources rather than faceless populations, which will help begin to construe governments in their proper role as temporary custodians or trustees of natural resources charged with managing them for the benefit of all the people in the country.“

I encourage all people interested in this topic to read very well this article in order to understand the legal basis of the principle of permanent sovereignty over natural resources and to design a policy and legislative framework in the light of international law.

 5. CITIZENS´ RIGTHS AND CIVIC DUTIES IN A DEMOCRATIC SYSTEM

I would like to end this article with on a personal note. I recently attended an international conference in Stanford University where we met all 150 lawyers and academics coming from all over the world to discuss Law and Ethics and the challenges we face in these times of economic turbulence.  It was really inspiring for me to see so many different qualified people discussing the right things to do when democracy, fundamental rights, social and economic rights are being restricted and even denied all over the world. Unjustice, corruption, kleptocracy, misgovernance, all these things challenge our democratic systems and our fundamental rights around the world to bigger or lesser degree. While in Africa and Asia the fight is still for fundamental rights, in Europe we are fighting for the preservation of a socio-economic system where the State guarantees our basic rights such as education, public health and justice and/or fighting for environmental causes or social justice in the aftermath of the financial crisis. While in normal circumstances academics usually prefer to be neutral and just concentrate on their research projects, it was argued by lawyers belonging to movements such as “street law” and some “legal ethics in action” that in exceptional circumstances lawyers, clients and in general civil society have to claim their rights with capital letters (and unfortunately some people are paying this fight with their lives too). It was impressive to see a map of “heroic lawyers” (heroic clients it was later redefined) mapping the conflicts all around the world presented by the American Bar Foundation. This is the legal map that corresponds to the global justice movement very linked to the movement for a proper globalization (ATTAC) which took the world stage in Seattle in 1999. And it was very sad to see what happened in the map when lawyers who had the knowledge needed to resist had sided with the illegitimate dictatorial regimes that we all know (Chile – Argentina).

Lets keep this in mind. We have to remember that rights and duties are linked together in our legal modern democracies. We do not deserve rights if we do not perform our obligations.  It is important to claim our rights but it is also essential to exercise our civic duties. If we request the participation of civil society in the design and drafting of a new energy and natural resources policy, we assume all the duty to learn as much as we can so that we can help our Parliament to draft and discuss the best legislative instrument we can ever imagine.  We assume the duty to research, educate ourselves and discuss all alternatives for our future in a professional and respectful way, searching for the general interest of the society.

Our rights are recognized in the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (see http://ec.europa.eu/environment/aarhus/)

As the European Commission summarises:

“The Aarhus Convention establishes a number of rights of the public (individuals and their associations) with regard to the environment. The Parties to the Convention are required to make the necessary provisions so that public authorities (at national, regional or local level) will contribute to these rights to become effective. The Convention provides for:

• the right of everyone to receive environmental information that is held by public authorities ("access to environmental information"). This can include information on the state of the environment, but also on policies or measures taken, or on the state of human health and safety where this can be affected by the state of the environment. Applicants are entitled to obtain this information within one month of the request and without having to say why they require it. In addition, public authorities are obliged, under the Convention, to actively disseminate environmental information in their possession;
• the right to participate in environmental decision-making. Arrangements are to be made by public authorities to enable the public affected and environmental non-governmental organisations to comment on, for example, proposals for projects affecting the environment, or plans and programmes relating to the environment, these comments to be taken into due account in decision-making, and information to be provided on the final decisions and the reasons for it ("public participation in environmental decision-making");
• the right to review procedures to challenge public decisions that have been made without respecting the two aforementioned rights or environmental law in general ("access to justice"). “

We live in a foundational moment; it is now that we have to design and create the society and world that our children will inherit. As Gro Brundtland put it, we have to think about our common future. Lets also assume our obligations.

    

[i] This information is non-scientific and comes  from the website wikipedia.org . This author confirms its accuracy.

“Our Common Future, also known as the Brundtland Report, from the United Nations World Commission on Environment and Development (WCED) was published in 1987. Its targets were multilateralism and interdependence of nations in the search for a sustainable development path. The report sought to recapture the spirit of the United Nations Conference on the Human Environment - the Stockholm Conference - which had introduced environmental concerns to the formal political development sphere. Our Common Future placed environmental issues firmly on the political agenda; it aimed to discuss the environment and development as one single issue. The publication of Our Common Future and the work of the World Commission on Environment and Development laid the groundwork for the convening of the 1992 Earth Summit and the adoption of Agenda 21, the Rio Declaration and to the establishment of the Commission on Sustainable Development. Our Common Future is also known as the Brundtland Report in recognition of former Norwegian Prime Minister Gro Harlem Brundtland's role as Chair of the World Commission on Environment and Development.”

The Brundtland Report is available at http://www.un-documents.net/wced-ocf.htm

  

Athugasemdir

[Pétur Þorleifsson , 29.7.2010 kl. 14:56]

Í stjórnarsáttmálanum stendur : "Innleiðingu Árósasamningsins í íslenskan rétt verði hraðað og nauðsynlegar lagabreytingar kynntar á haustþingi 2009."
Réttlát málsmeðferð í umhverfismálum vefst eitthvað fyrir.