Our Association’s expert, professor Borys Babin make his statement on the fields of World Law Congress 2021 in Colombia, regarding discussion on sustainable development. We publish this statement important for the issues of Crimea’s sustainable development
Ideas of sustainable growth have quite long politic and legal history. John S. Mill’s concept on “happier population” just transformed the ideas of Francisco Vittoria on the jus communicationis et societatis humanae and ideas of Bartolomé de las Casas proclaimed on Valladolid debate. So the UN’ Brundtland Commission, proposing the concept of sustainable development to the whole world, did not discover America and it had a well established ground for the relevant mechanisms distributed.
And last four decades of relevant national, regional and universal practice should give us the direct response on key issue – did the ideas of sustainability implement in the legal reality. The challenges for the development such as conflicts, non-equality and pandemias are the long-distance features of the human kind. Of course, today the wars are hybrid, the discrimination got form of the digital divide, and the infections are not the God’s acts only, but often a human’s creation. But the mechanisms of legal counteraction the injustice are often the same.
But when we speak on the sustainable development’s legal framework, the relevant rights’ subject an object seems to be the key issue. It is not so bad to speak about the whole humanity in political sense, but the key issue arises for a lawyer – who has the competence to represent such person in any proceeding.
The peoples of United Nations determined seventy seven years ago the relevant competence for Security Council to act, with an imperative competence, struggling for the peace and prosperity of all human civilization. I will not ask the rhetoric question – is such mechanism effective per se. But I may point, just as a lawyer, that as minimum such procedures are not legally irreproachable, regarding the non-relevance as minimum two of «permanent member states», such as Russia and communistic China, to the direct demands of the UN Chapter’s current articles.
Of course, the General Assembly’s and ECOSOC’s mechanisms may be pointed, but up to this date any fundamental convention was adopted regarding the sustainable development. We may remind the proposals of the Millennium Declaration, Monterrey Consensus, Johannesburg Declaration, Rio Declaration and Agenda 21, of Declaration of Barbados and of some other programs and action plans. And all those documents programmed the steps of states and international structures, not establishing the legal binding rules. I stressed ten years ago in my habilitation dissertation that international programs became a separate source of modern international law. But there is any clear vision, as then so now, how the programmatic norms may be a ground of judicial proceeding on national or international levels in area of sustainable development.
But, in absence of the binging universal treaties’ norms, the fifteen years of Human Rights Council’s activities may be determined as the actual practice on relevant international legal enforcement. The special procedures of such Council include more that 45 thematic UN human rights experts with mandates to report and advice on human rights from a thematic or country-specific perspective.
Their work is not a research and report proposals only but also collecting the submissions from the civil society structures, academicians and even individuals. Such mechanisms make possible to apply on wide set of challenges regarding the sustainable development issues. And, as for me, it is surprising that such communications are not widely used by lawyers working with the development-related problems.
For example, the Association of Reintegration of Crimea, which I do represent, sent more than forty submissions in the framework of the above-pointed procedures of the Human Rights Council in latest two years, regarding the sustainable development challenges in area of ongoing interstate conflict around Crimean peninsula.
In our submissions we concentrated UN officials’ attention on the treats to sustainable development, created by the paramilitary structures, created and supported by the Russian invaders’ powers, like private military companies and local conflicts’ “veterans’ unions”. We stressed the risks for the sustainable development on the region, created by evidently non-effective water, agricultural and wastes’ management in the Crimean peninsula, also as for the relevant complex problems in the regional educational and public health systems, for the non-controlled urbanization and migration flows, including the human trafficking, controlled by the de-facto authorities.
Our Association proposed, in such UN procedures’ framework, to establish two sacrificed zones in the region with vulnerable ecosystems that have crucial significance for local residents including indigenous communities.
So our submissions were reflected in the activities of such UN special rapporteurs: on the right to development, on the human rights to safe drinking water and sanitation, on the right to food, on human rights and environment, on toxics and human rights, on the right to adequate housing, on the unilateral coercive measures and others, including UN independent experts on the effects of foreign debt and on the promotion of equitable international order. Those experts send the relevant reports to the General Assembly and Human Rights Council and they published our statements officially, with special thanks on contributions, thus allowing to provide examples that may be adapted and used in particular national circumstances.
But such steps, even done by our Association on the universal level, did not create the legal binding consequences for the victims, whose rights we do represent. Their key significance seems to be in elaborating full concept of the sustainable development issues on the global level and the UN Forum on Business and Human Rights plays the important role for such issues, also as the UN Working Group on the Issue of Human Rights and Transnational Corporations and other Business Enterprises.
Our Association took active participation in the Consultation for the Eastern Europe and Central Asia, convened by this working group in 2021 with key attention on risks for sustainable development in conditions of the interstate conflicts, and on correlation the international mechanisms of human rights’ defense and investments’ protection regarding those framework.
From other side international justice recognized the challenges of sustainable development in latest decades. As the International Court of Justice pointed in the case Hungary v. Slovakia (Gabčíkovo-Nagymaros Project), the need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development. This concept was reflected later in the ICJ case Argentina v. Uruguay (Pulp Mills on the River Uruguay).
But for other cases, such as Bolivia v. Chile (Obligation to Negotiate Access to the Pacific Ocean), Australia v. Japan (Whaling in the Antarctic), Spain v. Canada (Fisheries Jurisdiction) and Ecuador v. Colombia (Aerial Herbicide Spraying) ICJ did not ground own position on such concept, not too far from the subject of those cases. So I wish to believe that ICJ will implement this concept in other pending cases, such as Ukraine v. Russian Federation, 2016 in framework of threats for the sustainable development, related with racial discrimination, anti-Islamism, anti-Semitism and xenophobia, including related enforced internal displacement and refugees’ flows.
As the possibility to participate in ICJ case, defending the right to development is not often for practical lawyers, mechanisms of regional courts of human rights became too essential for them.
As the amendments to the European Convention on Human Rights regarding right to healthy environment are still drafting, sustainable development issues are enforced now by the activities of European Court defending right to life, privacy and property. Such approach appeared in ECtHR in case López Ostra v. Spain and it was developed in cases Giacomelli v. Italy, Öneryldiz v. Turkey, Posti and Rahko v. Finland, Fadeyeva v. Russia, Kyrtatos v. Greece and Hamer v. United Kingdom.
In current practice of our Association we passed some confidential individual applications of Crimea-residing victims to the European Court, where the issues of sustainable development were connected with. At the same time the Crimea-related interstates cases are pending before the European Court, such as Ukraine v. Russia since 2014 and Russia v. Ukraine since 2021. In the relevant judgment, 2021 European Court established already the practice of expropriation without compensation of property from civilians and private enterprises by de-facto authorities in the region that is directly connected with sustainable development.
Also the practice of the African Commission on Human and Peoples’ Rights regarding the sustainable development may be mentioned, like Ogoni case against Nigeria and Endorois case against Kenya. But the most fundamental approach in those issues was done by the Inter-American Court on Human Rights.
It was first reflected in the case Yakye Axa Indigenous Community v. Paraguay and later the Inter-American Court’s Advisory Opinion 23/17 highlighted the relationship of interdependence and indivisibility that exists between human rights, the environment and sustainable development.
It allowed connecting the development’s issues not only with rules of the Protocol of San Salvador, but with Article 26 of the American Convention fixing the right on progressive development. So the case Lhaka Honhat Association v. Argentina became crucial in 2020 when Inter-American Court connected the rights to a healthy environment, indigenous community property, cultural identity, food, and water with a progressive development of economic, social, and cultural rights.
And of course the indigenous rights and indigenous issues are not accidental and never were accidental in the context of the sustainable development. The two stories of support of the UN Declaration on the Rights of Indigenous Peoples by Colombia in 2009 and by Ukraine in 2014 are too common in their grounds even as happened on different continents. In Ukraine real legal practice of defending the indigenous rights including collective ones was complicated last years as the legislation implementing the Declaration’s demands was developed.
But in 2021 the national law of Ukraine on indigenous peoples was adopted and our Association take active participation, together with governing bodies and academicians, to develop the sublegal act on legalization the indigenous’ representative bodies and on consultations’ procedures with them.
Regarding the issue of sustainable development I shall pay your attention to the article 7 of this law, on the right of indigenous peoples of Ukraine to sustainable development. It points that indigenous peoples of Ukraine, through their representative bodies, have the right to set priorities and develop strategies for the exercise of their right to development. This right includes participation in the development and implementation of state and regional programs, as well as other strategic and program documents on the basis of free, prior and informed consent on issues related to the rights and legitimate interests of indigenous peoples of Ukraine and their integration into Ukrainian society. This article guarantees also the indigenous peoples of Ukraine the right to direct part of the revenues, received by the Ukraine’s budgets of all levels from the use of natural resources located in the Crimea to the indigenous needs.
Those norms were lobbied by me and some other Ukrainian experts for last fifteen years and now they are adopted by our higher authorities. So I hope to report in future on results of practical realization of such amendments in the framework of the sustainable development issues.