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- The Role of the International Organisms in the Globalization Process
- International Economic Law, Globalization and Developing Countries
- The Right to Development and International Economic Law
Globalization - Approaches to Diversity.
The Role of the International Organisms in the Globalization Process
Sustainable development and international economic law in Africa. Sustainable development has been advocated by the developed world as a means to ensure that the most widely beneficial type of development occurs.
This has resulted in a body of rules, which though well intended, does not adequately address the developmental needs of developing countries. It has become a source of tension between developing and developed countries.
Developing countries fear that it can be used to frustrate their prospects of development. Hence the adoption of sustainable development provisions by African countries has largely been controversial. This article explores the concept of sustainable development and its level of acceptance in international economic law instruments involving African countries. This article argues that African countries should adopt a more intentional position with regards to sustainable development to ensure that each agreement creates an opportunity for economic transformation and sustainability.
Key words : Sustainable development, international economic law, African agreements. Sustainable development has gained a level of acceptance in international economic law, which is evidenced by its inclusion in the Marrakesh Agreement establishing the World Trade Organisation WTO and other agreements.
The concerns about sustainable development restricting development options are not new, and can be traced to the inception of the concept. These have all contributed to concerns that sustainable development is a mechanism to preserve the status quo between developed and developing countries.
The article is divided into five parts. First, there is a discussion of the concept of sustainable development, followed by part two which discusses the legal nature of sustainable development provisions. Part three describes the approaches to the concept of sustainable development, part four analyses specific instruments in international economic, and part five provides the recommendation and conclusion.
While there is no universally accepted definition of sustainable development, the most widely quoted definition thereof appears in the Brundtland Report, namely: "Development that meets the needs of the present without compromising the ability of future generations to meet their own needs. Drawing upon this definition, sustainable development has been interpreted as development which fulfils three criteria : economic, social and environmental.
It is capable of different permutations, depending on the emphasis placed on each element. It is generally accepted that sustainable development and international economic law are compatible.
Sustainable development appears in many international economic law agreements, such as, the more recent regional trade agreements and the new generation bilateral investment agreements BITs. The most common type of sustainable development provisions are declaratory, non-binding provisions which refer to sustainable development generally. These tend to appear in the preambles and the objectives clauses of agreements. These provisions are either confirmations or statements by the parties that they shall promote or take measures for sustainable development under their domestic law or international rules.
Often, there is reference to international agreements which justify the importance of sustainable development. They can either be obligatory or exemptive provisions. Obligatory provisions require contracting parties to take affirmative measures or to refrain from committing certain conduct contrary to sustainable development. Exemptive provisions preserve the regulatory rights of the parties to take measures for sustainable development which are inconsistent with their treaty obligations.
The scope of sustainable development provisions also varies in the agreements. The most common type are provisions which refer to sustainable development generally. In such provisions sustainable development is not disaggregated to address specific pillars of the concept. When sustainable development provisions are disaggregated and specified, the most common provisions are those which are consistent with the generally accepted three pillars of sustainable development.
Sustainable development provisions have four variations. The first type are declaratory provisions which make reference to the concept generally, whilst not creating specific measures for its protection. Such provisions sometimes make reference to international standards without incorporating these into the agreement. The second type are non-derogation provisions which create obligations on States not to lower their domestic protection provisions.
The third type of provision obliges States to take necessary measures to protect that aspect of sustainable development under national and international law. The fourth type allows contracting States to be exempted from State responsibility for taking sustainable development measures which are inconsistent with their obligations under international investment agreements.
Obligatory sustainable development provisions may interfere in three ways with the ability of developing States to guide development. This is particularly disturbing because developing countries are only able to provide legislative and regulatory assistance, since they cannot afford to provide subsidies or other financial incentives. Thirdly, the cost of compliance requires that developing States relinquish existing revenue streams, yet bridge funding to allow for the transition to sustainable development is not provided.
Environmental provisions are the most common type of specific sustainable development provisions. The inclusion of obligatory environmental protection provisions in international economic law treaties has given rise to tension between developed and developing countries. First, developing countries perceive it as a form of regulatory dumping by developed countries.
Developed countries seek to ensure that the environment is not destroyed in the pursuit of economic development 39 , whereas developing countries regard economic development as necessary to prevent environmental degradation, which is caused by poverty. The fifth area of divergence pertains to the financial and opportunity cost implications of environmental standards.
The more contentious issue is the opportunity cost aspect, in which developing countries assert that they should be compensated for not exploiting their environmental resources. In addition, whenever obligatory environmental provisions are implemented, these regulations are viewed as either expropriation or as disguised market protection mechanisms.
There are differences between developing and developed countries with regards to the role of the social pillar in sustainable development. In agreements entered into by developing countries, poverty eradication is prioritised. Developing countries fear that the social pillar will be used as a mechanism to influence and control their domestic policymaking processes.
This pillar may be used to introduce high labour standards. The social pillar may also be used to allow developed countries to participate in their domestic policies through transparency and cooperation provisions.
Such provisions are invasive and interfere with the sovereignty of States. The approaches towards sustainable development are largely determined by the level of economic development which the State has achieved.
Developed countries are primarily concerned with environmental protection and intergenerational equity. Developing countries focus on their present development, and argue that developed countries exploited the environment in past generations.
Developed countries generally argue that States should not be solely concerned with the immediate improvement of the lives of their citizens. The approach of developing countries restricts the options available to achieve immediate relief from poverty and may prolong it. Another difference pertains to the types of sustainable development provisions. Developed countries advocate for a broad based universal approach through the establishment of specific minimum obligatory standards, which require all countries to take affirmative measures or to refrain from conduct, for sustainable development.
These allow for nuance, flexibility and individual State response, which they prefer. Developing countries have continuously resisted giving sustainable development too much legal weight. Whenever there are specific pillars, these are limited to the generally accepted three pillars of sustainable development. In this review of instruments entered into by African countries concerning sustainable development, three types of agreements are examined. This Agreement establishes the most important international economic institution in which African States participate as a large constituency.
Its provisions are explored as a touchstone. The second types of agreements are those which are comprised exclusively of African States. The agreements entered into with developed countries are motivated by the need to retain market access to these countries. Therefore, the generally accepted definition of sustainable development is considered applicable.
Since no specific meaning has been given to the concept, the members can provide their own content. Sustainable development is referred to generally in a declaratory provision. In this text, reference to sustainable development is restrained and limited. The objectives clause of the Constitutive Act of the African Union makes reference to sustainable development.
In this agreement, the generally accepted definition of sustainable development is modified. There is mention of the social aspect, but without a definition or context as to its use. These specifications indicate which elements of this concept are important to African States. It is notable that the environment is not listed among the areas of sustainability, yet other elements have been specifically mentioned.
It is a largely declaratory provision, yet there is an attempt to define and the limit the scope of the conventional concept of sustainable development. Interestingly, the term appears unaltered in Agenda , which is the implementation plan of the AU. This is consistent with the desire by developing countries not to give this concept too much legal weight. It has been limited to solve existing community problems, suggesting intra-generational application. All these modifications have the cumulative effect of depriving the concept of its standard conceptual meaning.
It provides for sustainable and inclusive socio-economic development, gender equality and structural transformation. The addition of the words "inclusive socio-economic" development, points towards the overarching importance of economic growth.
Other concepts, such as structural transformation, are used simultaneously, which suggest equal importance. Interestingly, a specific environmental provision was not added to the document, which reflects the lack of importance which is accorded to this concept.
This general non-binding reference to sustainable development in the AfCFTA, which is the newest and largest free trade area FTA on the continent, is telling, and indicative of the continental position with regards to this concept. This goes against the international trend of more detailed sustainable development provisions and the move towards more obligatory provisions.
It is a largely declaratory provision which refers to sustainable economic growth and development. The overarching importance of economic growth is evident and specifically mentioned, to reflect the needs of the region.
It provides for the sustainable utilisation of natural resources and effective protection of the environment. In this agreement the terms pertaining to sustainable development are modified in three ways.
First, by the addition of terms to elucidate the meaning. Secondly, sustainable economic growth is decoupled from the environmental aspect. Thirdly, the protection of the environment is tied to its utilisation.
Such changes reflect the interpretation and application of the concept of sustainable development in the SADC context. These modifications suggest a conceptual matrix which is heavily tilted towards economic growth and significantly different to the generally accepted definition. The Protocol on Trade does not make any reference to sustainable development, but to the need to comply with the rules of the WTO. In the Protocol on Finance and Investment, the preamble makes reference to increased economic growth and sustainable development.
International Economic Law, Globalization and Developing Countries
Economic globalization is one of the three main dimensions of globalization commonly found in academic literature, with the two others being political globalization and cultural globalization , as well as the general term of globalization. It is the increasing economic integration and interdependence of national, regional, and local economies across the world through an intensification of cross-border movement of goods, services, technologies and capital. While economic globalization has been expanding since the emergence of trans-national trade , it has grown at an increased rate due to improvements in the efficiency of long-distance transportation, advances in telecommunication , the importance of information rather than physical capital in the modern economy, and by developments in science and technology. International commodity markets , labor markets , and capital markets make up the economy and define economic globalization. Beginning as early as BCE, people in Syria were trading livestock, tools, and other items. In Sumer , an early civilization in Mesopotamia , a token system was one of the first forms of commodity money.
The Right to Development and International Economic Law
In times of raising authoritarianism, it is crucial to reflect on some of the limits of the nation-state and on the necessity to develop alternative paradigms for integrating economies and societies. This term is used to refer to a major shift toward an ideal of unfettered national sovereignty as the chief paradigm to re-orient the international economic order. This article articulates a two-fold critique of the idea that an expansion of national sovereignty is going to achieve a better socio-economic world order per se. The first critique is internal, showing that the nation-state does not possess intrinsic characteristics to facilitate democracy, equality, and sustainability. The second is external and focuses on the necessity to look reflexively at the goals of the system of international economic law, to re-imagine it as capable to address questions of inequality and environmental degradation.
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E mail: mlascurain colver. Revista de Relaciones Internacionales, Estrategia y Seguridad. This article aims to analyze the main elements of the current process of economic globalization as trade liberalization and the flow of foreign direct investment and capital mobility. The consequences of these elements demand a series of criticisms and proposals on how local governments must address globalization and what should be the role of international institutions as an instrument that contributes to integration, particularly of the least developed nations, in the world economy.
Sustainable development and international economic law in Africa. Sustainable development has been advocated by the developed world as a means to ensure that the most widely beneficial type of development occurs. This has resulted in a body of rules, which though well intended, does not adequately address the developmental needs of developing countries. It has become a source of tension between developing and developed countries.
The last two decades of the XX century have been marked by a vigorous acceleration of international economic integration both at a global and regional level.