Shining Sun and Blissful Wind: Access to ICT Solutions in Rural Sub-Saharan Africa Through Access to Renewable Sources

Author:Osob Samantar
Position:J.D. candidate, May 2013, at American University Washington College of Law, class of 2013
Pages:42-61
 
CONTENT
42 SUSTAINABLE DEVELOPMENT LAW & POLICY
SHINING SUN AND BLISSFUL WIND: ACCESS TO
ICT SOLUTIONS IN RURAL SUB-SAHARAN AFRICA
THROUGH ACCESS TO RENEWABLE SOURCES
by Osob Samantar*
INTRODUCTION
The United Nations Conference on Sustainable Develop-
ment (“UNCSD” or “Rio+20”) Conference culminates
twenty years of sustainable development. Held in Rio de
Janeiro, Brazil June 20-22, 2012, the conference marks the 20th
anniversary of the 1992 United Nations Conference on Environ-
ment and Development (“UNCED”), and the 10th anniversary of
the 2002 World Summit on Sustainable Development (“WSSD”)
in Johannesburg, South Africa. Under the central theme of the
green economy, both Information Communication Technology
(“ICT”) solutions and renewable energy will be addressed.1
These two sectors’ growth are intertwined. As developed and
developing countries convene for the Rio+20 conference, they
must look to progress in these integrated areas. Sub-Saharan
Africa provides an arena in which to view these concepts and
take stock of how new principles have evolved and are being
integrated into green economies.
Approximately forty percent of the world’s population
without access to electricity lives in Sub-Saharan Africa.2 Within
rural Sub-Saharan Africa, around eight percent of the popula-
tion has access to electricity, which is vastly disproportionate to
the urban areas where roughly fifty-three percent has access to
electricity.3 As a result, many in rural Sub-Saharan Africa do not
enjoy the impact of ICT solutions. The purpose of this article is
to highlight the relationship between ICT solutions and greater
sustainable development, discuss the access crisis in rural Sub-
Saharan Africa, and recommend integration and implementation
methods that governments and non-government actors may pur-
sue within the scope of the 1992 Rio Declaration principles. This
article highlights three countries: Kenya, Ghana, and Namibia,
and assesses their respective green energy efforts. Lastly, this
article will discuss how the Rio+20 conference presents the
perfect opportunity to incorporate ICT related provisions into
the final conference outcome document.
BACKGROUND
ICT solutions break barriers. Access to energy leads to
easier access to ICT and knowledge regarding every aspect of
the global community,“ which in return allows citizens to find
solutions to political, social, and economic challenges. Income
generation is also made possible through the creation of new
ICT related enterprises. Access to energy is vital to sustain-
able development and the construction of green economies.
Moreover, there is a positive correlation between access to
energy and development.4 Although the countries in this study
vary with regards to ICT development, all three face issues with
access to electricity and power within their rural areas.
Take, for example, the mobile phone ICT solution that
improves citizens’ standard of living, helps small businesses,
and connects families. In Africa, mobile phones facilitate
advancements in banking, education, healthcare, agriculture,
and the empowerment of women.5 At the same time, according
to the GSM Association (“GSMA”)6, by the end of 2012 there
are expected to be around 165,000 mobile base stations across
sub-Saharan Africa without a reliable supply of electricity.7
This totals nearly seventy-nine percent of all base stations
across sub-Saharan Africa.8 Typically, diesel generators power
these stations.9 Sustainable and renewable energy sources can
resolve problems of unreliable access to energy by replacing
or supplementing existing diesel generators. These energy
sources are plentiful in Sub-Saharan Africa because of favorable
geographic location and terrain. Integrating them into national
energy plans will help states in Sub-Saharan Africa use green
economy initiatives to alleviate poverty.
KENYA
Kenya is perhaps the most advanced African country in
terms of utilizing ICT solutions. Kenya is located in Eastern
Africa, bordering the Indian Ocean, between Somalia and
Tanzania.10 Its population is over fourty-three million with a
median age of 18.9 years.11 At an annual growth rate of thirty
percent, Kenya’s ICT sector outperforms all other sectors of the
economy.12 Of the three countries, Kenya’s civil society is argu-
ably the most active. Kenya has a relatively new Constitution
(ratified in 2010), strong internal macro-economic policies, and
what some analysts describe as “a favorable regional environ-
ment.”13 It is also East Africa’s largest economy.14 Despite recent
efforts, Kenya still faces challenges with regards to the distribu-
tion of these modern solutions. ICT infrastructure in rural Kenya
requires work, with the majority of advancements concentrated
in Nairobi and Mombasa.15
ICT solutions in Kenya are mainly mobile-based since
roughly ninety-three percent of adults use mobile phones.16
Perhaps the most popular mobile platform in Kenya is Ushahidi.
First developed to map reports of post election violence in
early 2008, Ushahidi was also used to monitor the 2009 Indian
* Osob Samantar is a J.D. candidate, May 2013, at American University
Washington College of Law, class of 2013.
43SPRING 2012
elections; track violence in Gaza; map the Gulf of Mexico oil
spill; and even monitor emergency response to the earthquake in
Haiti.17 Kenya also has a mobile money transfer service, M-Pesa,
which provides banking access to rural citizens that lack access
to traditional brick-and-mortar banks.18 Since 2007, M-Pesa
has transferred roughly $1.8 billion, which equals 5 percent
of the country’s GDP. 19 Agriculture is a source of employment
for roughly seventy percent of the population in Kenya20 and
M-Farm solutions allow farmers to use a combination of crowd-
sourcing and mobile alerts to identify sale patterns, predict the
weather, and stay knowledgeable on other economically viable
crops.21 Even Community Health Workers offer educational
lessons on reproductive health and newborn care via mobile
applications.22
Several factors have forced Kenya’s national emphasis on
renewable energy and green economy initiatives. Kenya imports
most of its fossil fuels.23 Unlike other states in the South, Kenya
is not rich in energy sources like coal and nuclear power.24
Therefore, in many ways Kenya is constrained in the energy
sector. About eighty percent of the population lives in rural
areas and about ninety percent of Kenya’s rural population lacks
reliable access to electricity.25 Kenya’s investment in renewable
energy is still in its initial stages. Thus, the amount of electricity
being generated currently by renewable energy sources is far less
than the potential amount.26
In 2004, Kenya inaugurated its E-Government Strategy to
“improve service delivery, transfor m government operations,
and promote democracy.27 Much of this integrates Principle Ten
of the 1992 Rio Declaration, in that the government sought to
expand public access to government information.28 In the same
year, the Communication Commission of Kenya also funded
a Universal Access Report to analyze ICTs in rural areas of
Kenya.29 The report estimated the rural population in Kenya at
18.6 million and found little to no research and development
geared towards the needs of this population.30
GHANA
Ghana is located in Western Africa and borders the Gulf of
Guinea, between Cote D’Ivoire and Togo. 31 Ghana’s population
is over 25 million, with a median age of 21.4 years. 32 Ghana
is making strides in telecommunications. Although Ghana has
not reached the level of sophistication of Kenya, it is ahead
of Namibia in ICT. Ghana was one of the first African states
to “liberalize” its telecommunications sector.33 As a result,
Ghana remains aggressive in incorporating ICTs in the health,
education, and agriculture sectors.34 Predictions also indicate
that competition in Ghana’s ICT market is set to intensify as
more landing rights have been granted to two new submarine
cables.35 However, the environmental impact of these cables has
not yet been assessed and the government has not accounted for
the possible electronic waste that could result.
Although most discussions about mobile applications only
refer to Kenyan products, Ghana’s application providers are
equally advanced. For example, applications allow individuals
to check the authenticity of drugs through SMS messaging.36
In healthcare, the Mobile Technology for Community Health
initiative developed two mobile applications, ‘Mobile Midwife’
and ‘Nurses’ that provide training for nurses, alerts to remind
women of important check-ups, educational resources, call
centers to assist with monitoring, and a data collection mecha-
nism.37 Following Kenya’s example, social activists and bloggers
in Ghana plan on monitoring and reporting on the December
2012 elections, which will be the first time Ghana’s citizens are
engaged in this fashion.38
Ghana’s ICT for education initiatives is some of the most
advanced in Sub-Saharan Africa. ICT supported educational
mechanisms are used in Ghana to ensure students are competi-
tive in the global economy. GARNET, Ghana’s national research
and education network (“REN”) creates integrated learning,
teaching, and research among all public and private institu-
tions in Ghana.39 These programs fully integrate the notion that
creativity will forge and mobilize global partnerships to “achieve
development for all,” which integrates Principle Twenty-One of
the 1992 Rio Declaration.40
ICT solutions in Ghana also assist in creating sustainable
livelihoods in the agricultural sector.41 For instance, in the
cashew industry, farmers use software solutions as part of a joint
project created by SAP, a German based, multi-billion dollar
software and programming company, and the African Cashew
Initiative.42 Through the SAP application, cashew unions get
access to farmer contact data, loading information, buying data,
and market information.43 The application directly connects
farmers to wholesalers and retailers, and ultimately helps them
increase their incomes.44
Ghana has the potential to quickly “catch-up” in the ICT
sector. Ghana’s mobile penetration rate is 85.5 percent.45 The
government in Ghana also incorporated an emphasis on ICT
solutions as a central piece to their long-term development strat-
eg y.46 Yet, a recent study conducted by The World Bank found
infrastructure disparities in Ghana, with greater ICT infrastruc-
ture in the South and Southwest than in the North.47 Much of the
infrastructure challenges could be a result of urban-rural energy
disparities in different regions in Ghana.
Unlike Kenya and Namibia, Ghana integrated some of the
core principles of sustainable development and green economy
before the 1992 Rio Declaration. In 1989, Ghana established
a national initiative to power the entire country by 2020 and
included renewable energy schemes.48 To help meet this goal,
off-grid renewable energy sources could bridge the gap between
centralized grid capabilities and population demands, especially
since the cost of energy in Ghana is expected to reach $5.2
billion by 2020.49
NAMIBIA
Namibia is located in Southern Africa and borders the South
Atlantic Ocean, between Angola and South Africa.50 Namibia
has the lowest population density of the three countries in this
article, which stands at roughly 2.1 million, with a median age
of 21.7 years.51 Roughly 60 percent of households are rural
44 SUSTAINABLE DEVELOPMENT LAW & POLICY
households.52 There are approximately 127,500 Internet users
in Namibia and 1.5 million mobile phones within Namibia.53
Few innovative programs exist in Namibia similar to those
in Kenya and Ghana geared towards civil activism and develop-
ment through ICT solutions.54 None of these programs have the
high visibility of Ushahidi or the ICT for education initiatives in
Ghana. Still, Namibia only gained its independence two years
before the 1992 Rio Declaration.55 The government in Namibia
understands that it lacks the capacity necessary for sustain-
able development and has incorporated themes of cooperation
and partnership embodied in the 1992 Rio Declaration.56 For
instance, Namibia is looking to India to assist with long-term
challenges. This partnership with India could enable the ICT
sector to provide e-services through distance learning and health
resources by connecting Namibia with Indian counterparts
thereby allowing direct assistance.57 Utilizing this assistance,
Namibia should pursue learning best practices and green initia-
tives toward the goal of implementing sustainable development
in rural areas.
ACCESS CRISIS AND THE USE OF RENEWABLE ENERGY
PLANNING SOLUTIONS
The 1992 Rio Declaration failed to provide a guide for states
to deal with the accelerating demands for energy. Estimates show
that by 2015, more Africans will have mobile phone access than
electricity.58 Increased demands coupled with lack of national
infrastructure to accommodate growth and the high price of
fossil fuels have created an energy crisis in Sub-Saharan Africa.
For example, in Namibia energy deficits exist whereby demand
stands at 550 mega-watts and current capacity is just above 380
mega-watts.59 Lack of reliable energy stifles rural Sub-Saharan
Africa and prevents citizens from enjoying the thriving ICT
industries. Currently, approximately eight percent of the rural
population in Sub-Saharan Africa has access to electricity,
which is substantially lower than in urban areas where fifty-three
percent of the population has access.60
Most of Sub-Saharan Africa relies on biomass, diesel, and
kerosene, all of which are expensive and costly in the long run.
In rural areas, high costs of electric grids incentivize the use of
diesel and oil, whereas in urban areas, the costs are distributed
over larger populations. In Namibia, wood remains the dominant
source of energy in the rural areas.61 Namibia currently relies
on purchase agreements with power utilities in neighboring
countries, thereby importing over fifty percent of its electricity.62
In Ghana, high growth rates in demand for power are rapidly
outstripping what the Akosombo Reservoir can supply in terms
of hydropower; and as a result many must return to oil.63 Most
Kenyan households are still reliant on kerosene lamps, disposable
batteries, and diesel generators.64 These energy sources are very
expensive and harmful to human health and the environment.
All states should fully incorporate Principle Four of the
Rio Declaration into national energy policies, which requires
that “environmental protection constitute an integral part
of the development process [that] cannot be considered in
isolation from it.”65 This should include acknowledging and
implementing renewable energy initiatives as one step in the
process of integration. Sub-Saharan Africa is abundant with
renewable energy resources and use of these resources would
avoid the environmental damages created by deforestation and
greenhouse gas emissions. The GSMA predicts that East Africa
alone has a potential to create 11,000 community power projects
to help supply electricity and communication to rural popula-
tions.66 Countries can replace their reliance on diesel, kerosene,
or biomass with solar and/or wind energy.67 Africa has twenty
percent of the world’s landmass, and land in Sub-Saharan Africa
is plentiful and cheap, making the installation of wind or solar
farms in rural Sub-Saharan Africa is more feasible than in other
areas of the world.68 Sunshine is also plentiful and the cost of
both wind and solar photovoltaic energy sources is becoming
progressively cheaper.69 Moreover, additional financial resources
could be recovered with power sector cost recovery.70
SOLAR PHOTOVOLTAICS
Photovoltaic cells transform sunlight into electricity while
also storing this energy for later use.71 Meeting household
demand depends on the given system size, which is the num-
ber of panels necessary to “produce enough power to meet
demand.”72 Solar photovoltaics (solar PV) are easily adaptable,
use both direct and diffused beams, and the cost is dropping at
a faster rate than other technologies.73 Solar PV is well suited
for rural Sub-Saharan Africa. It requires minimal maintenance
and the sun in rural Sub-Saharan Africa is especially plentiful
year-round. 74 Yet, critics remain hesitant about the viability of
solar PV as a long-term solution because solar panels are often
shipped internationally, require costly maintenance, and can be
difficult to replace locally.75
Kenya
Kenya’s location allows for fierce, yearlong exposure to
sun. The Ministry of Energy estimates exposure at about 4 to
6 kWh per square meter per day, which is comparable to 300
million tons of oil equivalent.76 Most areas in Kenya also receive
around six hours or more of sunlight a day.77 All thir teen public
micro grids in Kenya use diesel fuel to generate electricity and
fuel costs are passed through to the consumer.78 For instance,
in November 2009, the fuel cost adjustment accounted for forty
percent of the total consumer electricity bill.79 Diesel generation
can be effectively replaced by solar generation in the micro grids
to alleviate this burden on the consumer.
Ghana
Similar to Kenya, the Ministry of Energy in Ghana estimates
solar exposure at about 4 to 6 kWh per square meter per day.80
The Ministry also recorded high levels of solar energy in about
sixty percent of the total national land mass.81 Solar PV instal-
lations in Ghana can help electrify homes and communities,
power rural telephony, power battery-charging stations, support
distance education tools, and power other telecommunications
tools. Solar battery service stations for community members
can be a profitable business venture for rural entrepreneurs in
45SPRING 2012
Ghana.82 The government can also encourage national energy
companies to adopt renewable energy plans to fill disparity gaps.
Namibia
There are few statistics on the exact potential of solar
energy in Namibia, but Namibia’s solar resource is abundant
with some estimates showing 3,300 hours of sunshine per year
in Namibia.83 Furthermore, in 2010, the World Bank estimated
that Namibia held the “highest multiple, annual production
potential from solar, wind, hydro, geothermal, and biofuels.”84
This potential is about one-hundred times the current energy
consumption.85 In 2005, the government of Namibia asserted its
commitment to sustainability through the promotion of natural
resources for energy production.86 This included the establish-
ment of the Solar Electrification Revolving Fund.87
WIND TURBINES
Wind Turbines extract energy from moving air and enable an
electric generator to produce electricity.88 The amount of energy
and the reliability of wind energy vary due to wind velocities
and turbine characteristics. However, wind turbines are ideal for
rural Sub-Saharan Africa because most feasible wind velocities
are concentrated in fairly remote rural areas.89 Nonetheless,
meeting rural demand will depend on many technical factors
including determining the ideal hub height and blade size neces-
sary for efficient operation, that in turn affect the total cost of
building and operating the turbines .90
Kenya
Kenya has one of the highest wind velocities in the world
with averages ranging between three and ten m/s (meter per
second) and northern Kenya with wind velocities at 11 m/s.91
The UN Environment Programme estimates that Kenya’s wind
potential is more than double the national demand, or approxi-
mately 3,000 MW.92 Wind energy can also alleviate the state’s
reliance on hydropower, which is currently strained by lack
of rainfall and environmental degradation of watersheds.93
Electricity generation from wind can play an important role in
rural electrification in Kenya because it is cheaper than oil-fired
generation and easily accessible to rural households that are not
connected to a national grid.
Ghana
Wind energy potential in Ghana is estimated at 5,600 mega
watts.94 Tapping into this resource will be crucial for Ghana to
reach its goal to achieve “10 percent contribution of new renew-
able sources in electricity generation” by 2020.95 As it stands,
existing power plants are unable to meet the growing demands
in Ghana, especially with increased oil prices.96 Ghana has
also invested capital and resources into solar PV solutions, but
overlooked ways to incorporate wind energy projects into the
national goals of sustainable development. Local wind turbines
in Ghana can even use scrap metals, automobile wheel bearings,
and axles to produce cheaper alternatives than solar PV.97
Namibia
There are few statistics on the exact potential of wind
energy in Namibia, but the geography suggests that wind power
could provide a great deal of energy. Sources found wind energy
potential in Namibia to be significantly high.98 The coast of
Namibia provides favorable wind velocities for turbine opera-
tion.99 Namibia is water stretched, so hydropower is less viable
and wind energy requires little to no water.100 Although wind
energy will not provide a majority of Namibia’s energy, it can
nonetheless help reduce its energy deficit.101
INTEGRATION AND IMPLEMENTATION
The advances currently made in Kenya, Ghana, and Namibia
are largely based on 1992 Rio Declaration principles. States take
varied approaches at incorporating these principles. Often the
initial step involves incorporating principles of renewable energy
sources into commissioned reports and then into national energy
law. Solar and wind energy policies are relatively young in much
of Africa, but governments along with private partnerships are
integrating and implementing large-scale projects. Many of
these projects are still concentrated in urban areas or connected
to the national grid and therefore create disparities between the
urban and rural areas. Cooperation among states with regards
to scientific expertise and technology transfers can also assist
local development processes to achieve sustainable development
in areas outside of the energy sector.
KENYA
In 2004, the government released Sessional Paper No. 4,
which outlined the government’s energy policy through 2023.102
The government acknowledged the “power system weaknesses”
and recognized the “great potential” for solar and wind energy,
but also found challenges with “attracting substantial private
sector investments.103 The paper sought to develop local exper-
tise, initiate local adaption of technologies, and adequately fund
rural electrification penetration from 2004-2012.104 In the long
run, 2004-2012, the plan proposed greater financial incentives
for investors in power generation and the development of “local
manufacturing capabilities for advanced renewable energy tech-
nologies.”105 Later in 2006, the government passed the Energy
Act of 2006, which serves as Kenya’s premiere legislation on
the consolidated national energy policy.106 This law empha-
sizes efficiency and conversion of Kenya’s energy sources, and
affirms Kenya’s commitment to sustainable development.107
The Minister is also required to promote the “development of
renewable energy technologies” and is permitted to inspect
factories to analyze whether their energy utilization complies
with concepts of efficiency and conservation.108 The Act created
two new bodies — the Energy Regulatory Commission and the
Rural Electrification Authority — both of which demonstrate
Kenya’s commitment to sustainable development.109 Moreover,
the Act integrates 1992 Rio Declaration chapters nine through
twenty-two on conservation management of resources in order to
hold the Ministry of Energy accountable for ensuring compliance
is met.110
46 SUSTAINABLE DEVELOPMENT LAW & POLICY
As a result of the Ministry’s rigorous efforts, the govern-
ment installed more than 300,000 solar systems in Kenyan
households.111 Future projects by the Ministry will mainly
focus on schools and health facilities.112 The government uses
solar systems to electrify 220 schools and has plans to electrify
an additional 497 institutions.113 Investment in future solar
system projects is estimated at $24.8 million U.S. dollars.114
Additionally, an initial line of 50 MW will be online in 2014.115
Moreover, since 2009 Kenya has supported widespread access to
ICT services through a universal service fund, which promotes
capacity building and innovations in ICT services.116
Kenya is in the process of building Africa’s largest wind
farm in Lake Turkana.117 The project will constr uct 365 wind
turbines in a 24,000-acre area, which will cost $772 million.118
The Dutch-led project will generate clean energy to meet more
than 20 percent of the country’s electricity needs.119 The wind
farm is estimated to add an additional 300 MW to the national
grid.120 Still, many rural communities may not enjoy the ben-
efits of the wind turbines, because they will lack connection to
the national grid. Unfortunately, Kenya is also planning to open
the country’s first nuclear power plant to produce twenty-five
percent of electricity needs, despite global fears of nuclear waste
and impacts on the environment.121 Additionally, there are no
details as to whether Kenya adhered to the 1992 Rio Declaration,
which requires Kenya to assess the “environmental impact”
of this new plan on the surrounding area and population.122
GHANA
Decentralized and off-grid renewable energy sources in
Ghana can serve as an alternative to grid electricity to power
much of the industrial and service sectors.123 Ghana’s solar
PV programs are moving at a fast pace. As of 2008, over 5,000
solar PV systems were installed in Ghana.124 Even the Ministry
of Energy is connected to a 50kWp Solar PV Grid.125 One
successful project is Ghana’s Energy Development and Access
Project (“GEDAP”) to build local and regional solar capacity,
which is funded by the World Bank, the Inter national
Development Agency, Global Energy Facility, and the African
Development Bank.126 GEDAP installed solar systems for solar
street electrification, vaccination refrigeration, and to power
home systems.127
Several local wind power projects are successful in Ghana.
For instance, the Washington D.C. based EnterpriseWorks
Worldwide along with Rural Energy and Environment Systems
(“REES”) of Ghana, and the UK’s Scoraig Wind Electric created
a program to train local technicians in manufacturing small-
scale wind turbines.128 The materials for the turbines are found
locally and maintained by local technicians. The First of the tur-
bines was erected in Accra.129 By 2004, the project constructed
another eight turbines in six off-grid communities.130 These
projects create jobs for local technicians and are cost-effective
because all materials are recycled and locally sourced.
In 2011, Ghana’s cabinet approved a vital Renewable
Energy Bill to promote the development of renewable energy
sources and to make the Energy Commission responsible for
implementing all government directives.131 The Bill is also
intended to build greater awareness within the population about
the advantages of renewable energy.132 However, the cabinet
should incorporate 1992 Rio principles into the final bill, receive
public input on the legislation, and include principles in the
upcoming Rio+20 outcome document in order to strengthen this
vital piece of legislation.
NAMIBIA
Namibia still requires greater institutional reform and a
national policy on renewable energy distribution that integrates
the 1992 Rio Declaration. The vast land area and low population
density in Namibia create difficult challenges for access distri-
bution. Only four to seven percent of the population has access
to ICTs.133 In 2004, the government initiated the Vision 2030
development plan, which aims to make Namibia a “prosperous,
harmonious industrialized state by 2030” by allocating billions
of dollars towards the development of different industries.134
The budget expansion suggests that Namibia is making seri-
ous efforts to assess long-term solutions.135 Unfortunately, the
plan also allocates large amounts of money to defense instead
of energy efficiency, telecommunications, or specific green
economy initiatives.136 The plan does, however, state that the
“creation of an enabling environment is essential for the attain-
ment of sustainable development,” but this language remains
vague and “an enabling environment” does not necessarily
equate to a full integration of the 1992 Rio principles.137 The
plan does address ICT deployment and even designates a series
of strategies for the government to promote that will make ICT
“the most important sector in Namibia” by 2030.138 Namibia
will still require specific investment in renewable energy solu-
tions to foster the sustainable growth strategies outlined in the
Vision 2030 agenda.
The Ministry of Mines and Energy (“MME”) originally
launched the “Promotion of the Use of Renewable Energy
Sources” in 1993 as a bold step after the 1992 Rio Declaration
to handle the energy crisis and sustainable development.139
Currently, Namibia has three turbines at the Ruacana hydropower
station and is months away from completing construction on a
fourth turbine.140 Additionally, in late 2011, the government of
Namibia held talks with regulators, utility developers, financiers,
and NGOs to discuss the future of wind power in Namibia.141
ROLE OF NON-STATE ACTORS
In many ways the 1992 Rio Declaration was ahead of its
time in recognizing the role that non-state actors can play in
promoting sustainable development and modernizing societies.
The 1992 Rio Declaration, however, could not have predicted
the major role mobile penetration and ICT solutions would play
in assisting non-state actors to achieve the very principles of the
Declaration.
Mobile operators can serve as examples of efficient
and conservationist practices. Recently, Safaricom, Kenya’s
largest mobile operator reported the company would use a com-
bination of wind and solar solutions to power eighty-six base
stations.142 At the same time, non-state actors can work with
47SPRING 2012
rural populations to help with principles of technology transfer.
For instance, the United Nations Industrial Development
Organization (“UNIDO”) along with the government of Kenya
launched rural energy centers to spread the use of off-grid renew-
able energy sources in rural Kenya.143 The centers will promote
small business entrepreneurship and provide ICT training to
communities. UNIDO also partnered with Microsoft to provide
training in ICT solutions for micro-businesses in rural Kenya.144
Phase one of the joint efforts deployed resources and energy
centers in Bungoma, Siaya, and Karachuonyo while phase two
will take place in Meru, Ngong, and Dadaab refugee camp.145
Non-state actors can also share scientific advance-
ments that incorporate local input. Currently, organizations
like access:energy create renewable wind turbines for rural
Kenyans.146 Access: energy helps citizens participate in their
own development by building wind turbines.147 The Kenyans
along with the Yale University and the EngineerAid network
make turbines out of scrap metal and car parts.148 The turbines
generate power at a cost that is two to three times lower than
equivalent solar PV panels; they can generate enough power for
fifty rural homes (about 2.5 kWh per day); and they can be built
using locally sourced materials.149
Educating the future generation through the use of ICT
solutions can help states achieve competitive advantages. Intel
has a program designed to create Africa’s first WiMAX con-
nected school in Ghana.150 HP is creating community-learning
centers in Ghana.151 Additionally, the African Youth Initiative
and One Village Foundation has founded CatchIT, which is
designed to foster the growth of ICT clubs in Ghana.152 Also,
the World Bank along with the University of Ghana is creating
research and education networks to connect researchers and
institutions from around the world.153
Good state practices with regards to energy projects may
become transferable. In August 2011, Juwi Solar and Alternative
Energy Systems launched the Tsumkwe Energy Project, one of
Africa’s “largest off-grid solar systems.” 154 This project supplies
public buildings and one hundred private households with elec-
tricity in a rural village in Northern Namibia.155 Although the
system includes some integrated diesel generators, the plant is
innovative, only took six-weeks to create, and similar projects
may be transferred to the rest of rural Sub-Saharan Africa.156
Civil society organizations and companies may function as
driving mechanisms. For example, in Namibia, the Information
Communication Technology Association (“NICTA”) can work
closely with the Ministry of Information and Communication
Technology in determining mutual objectives in the ICT
sector as well as access to renewable energy. Likewise, the
ICT Alliance in Namibia serves as a cabinet advisor to the
government and therefore can play an active role incentivizing
projects that create green economy initiatives in the rural areas.
CHALLENGES AND CRITICISMS
The major challenges associated with renewable energy
sources are costs, human capacity, and lack of knowledge.
Capacity for investment is limited in all of Sub-Saharan Africa
and governments have faced difficulties raising the capital
necessary to accelerate renewable energy sectors. Large wind
energy systems and solar PV systems require high initial capital
costs. For example, solar PV systems generally only maintain
three years of self-sufficient management.157 In Kenya, the
Feed-in-Tariffs introduced by the Ministry of Energy in 2008 are
helping to ease this problem.158 The tariffs essentially, allow
“power producers to sell renewable energy sources generated
electricity (“RES-E”) to a distributor at a pre-determined fixed
tariff for a given period of time.”159 This will likely accelerate the
investment process because power companies can be more inno-
vative and less constrained by other pressing issues juggled by
the government. Unfortunately, the tariffs are currently limited
to wind, biomass, and small hydro generators.160 Replacement
costs present another major challenge. The average lifespan of a
solar PV panel is thirty years and few states actually compute the
replacement costs associated with ensuring reliable systems.161
Implementing fees may be difficult and requires more innovative
techniques. One solution might be to create financial incentives
that waive the cost of import duties.162
Most of Sub-Saharan Africa’s states also suffer from lack
of ICT-engineers, technicians, and scientists. In Ghana, the
government created the Renewable Energy Education Project
(“REEP”) to facilitate education to strengthen human resource
capacity.163 The REEP project uses ICT solutions like distance
learning to help workers receive courses on renewable energy.164
Partnerships with Indian or Chinese engineers, technicians, and
scientists may also serve as a viable solution to this challenge
in Africa. That said, the par tnerships should stress the need to
develop local capacity and avoid over-reliance on importing
technicians.
States will also need to educate rural inhabitants on the
benefits of renewable energy sources. For instance, in Ghana
many rural citizens will continue to perceive renewable energy
sources as a “transition source,” until the government can expand
a national grid.165 However, the reality of resources makes grid
expansion unrealistic. Solar and wind energy are often more
cost-effective than extending grid power, so governments should
reach out to rural citizens in the form of workshops to educate
citizens and challenge any misconceptions.
RIO+20 CONFERENCE
In many ways the original 1992 Rio Declaration was ahead
of its time. Yet, a great deal has changed in the global environ-
ment since 1992. Sub-Saharan Africa has made great progress in
the area of sustainable development. Many states have adopted
policies to promote sustainable development.166 Regional players
are now more active than international institutions. New sources
of investment are prevalent. Nonetheless, emerging challenges
face Sub-Saharan Africa and not all states have adopted the goal
to eliminate policies that degrade the environment.167 Paramount
among these challenges is the energy crisis, which includes
access to energy by rural Africans. Today, the Rio+20 confer-
ence presents an opportunity for forward thinking. Several sub-
missions serve as a good point of reference on the energy crisis
48 SUSTAINABLE DEVELOPMENT LAW & POLICY
for the Rio+20 conference. For example, the Africa Consensus
Statement to Rio+20 stated that “access to sustainable energy
facilitates development and contributes to the achievements of
internationally agreed sustainable development goals including
the Millennium Development Goals.”168 The states in this article
have national energy or development policies that incorporate
principles of conservation, efficiency, and awareness. Moreover,
in 2010 governments in Africa increased investment in renew-
able energy by 280 percent or $3.6 billion.169 This is the largest
increase among all developing regions. Still, more international
implementation principles should be discussed and analyzed
at the upcoming Rio+20 conference. The governments in Sub-
Saharan Africa should also seek a greater role in the discussion
of the green economy in Rio+20 to ensure their needs are met
and that an outcome document takes African circumstances into
consideration.
The Rio+20 conference is an opportunity for international
players to discuss ways of incorporating access to ICT solutions
within a more concrete and expansive “means of implementing”
section.170 ICTs can play an increasing role in connecting the
three pillars of sustainable development — economic, social,
and environmental — while also providing mechanisms to
facilitate green economies. ICTs can facilitate the fusion of
local knowledge and technological knowledge. A future inclu-
sive outcome document already has a point of reference with
regard to incorporating ICTs into the process of promoting
green economies. The International Telecommunication Union
(“ITU”) submission is a comprehensive document detailing that
the “sustainability of future growth will rely critically on taking
advantage of ICTs as drivers and central elements of a greener,
fairer, and more sustainable economy.”171 Moreover, since 1992,
numerous international documents have recognized the vital role
ICTs play in development, including the World Summit on the
Information Society, the Broadband Commission for Digital
Development, and the Istanbul Programme of Action.172 Thus,
the outcome document to Rio+20 can consolidate the role of
ICTs in sustainable development and green economies.
Although the global governance structure attempts to safe-
guard the integration of 1992 Rio Declaration principles, Rio+20
should consider other mechanisms that can facilitate green
economies. A consensus to transition Sub-Saharan African econ-
omies for the purpose of promoting sustainable development
for all will require great focus. The Rio+20 Outcome Document
should, among other things, consolidate these concerns with
access to renewable energy and innovative ICTs. Within the
context of Sub-Saharan Africa, the Rio Outcome Document may
include concrete measures or provisions dedicated to:
•฀ The฀challenge฀of฀ access฀to฀renewable฀energy฀ in฀rural฀ areas฀
and possible innovative solutions.
•฀ The฀ reality฀ that฀ Sub-Saharan฀Africa฀ is฀ witnessing฀ initial฀
stages of industrialization and therefore requires a different
path to sustainable development.
•฀ The฀ acknowledgement฀ that฀ challenges฀ of฀ sustainable฀
development overlap with the challenges facing the imple-
mentation of renewable energy sources in Sub-Saharan
Africa — lack of finance or investment, the need for capacity
building, and educational awareness or “technology
transfer.173
•฀ The฀recognition฀of฀ the฀role฀of฀ICTs฀ in฀strengthening฀civil฀
society and leveraging ICT solutions to build sustainable
development and eradicate poverty.
•฀ The฀implementation฀of฀national฀ICT฀infrastructure฀develop-
ment, human resource development, universal access, ICT
literacy, and technological research development in addition
to the current goals for developing states.174
•฀ A฀goal฀addressing฀ access฀to฀ICT฀ through฀renewable฀energy฀
strategies.
The first step for any outcome document is a clear and
measurable definition of the green economy. This definition
should consider the reality that Sub-Saharan Africa is industri-
alizing, and therefore requires a language that acknowledges
different paths to sustainable development. Recognizing that
the energy crisis in Africa has serious implications to this future
green economy also requires greater cooperation among states
to allow for the sharing of best practices in green economy
initiatives. This may include practical examples of political
direction or policies that incentivize renewable energy projects.
The document should include access to information and mobile
penetration. Furthermore, the outcome document should encour-
age states to leverage ICT solutions to strengthen civil society
and to eradicate poverty.
The global governance model has not failed, but innovative
solutions should be sought to bring about systemic change in
Sub-Saharan Africa through cooperation with younger regional
players. In Africa this might involve working closely with the
African Union (“AU”) on a concrete document concerning the
green economy, sustainable development, and energy issues.
For example, allocating regulatory authority to the Energy
Commission within the AU might be more effective and influen-
tial than entrusting this authority to an international institution.
Globally, India’s increasing role in Africa should be leveraged.
India’s level of investment in Africa is great, with 2010-2011
investment at $52.81 billion.175 The outcome document from
Rio+20 should emphasize investment not only in human capac-
ity, but possibly the creation of a universal fund to ensure Africa
integrates 1992 Rio Declaration principles as well as establishes
long-term green economy initiatives.
CONCLUSION
Africa is witnessing a trente glorieuses.176 Nonetheless,
high oil prices coupled with global warming concerns have
necessitated the development of renewable energy throughout
Africa. Much of Africa understands these concerns, but incentive
structures should be set so that states continue to diversify their
energy supply.
Another challenge in Sub-Saharan Africa is that few sta-
tistics and little information are available about various smaller
players. Consequently, little to no data exists on a large scale on
access issues or ICT solutions beyond Kenya, South Africa, and
Nigeria. Timely and accurate research should analyze needs in
49SPRING 2012
the rest of Sub-Saharan Africa and objectively assess whether or
not they are being met.
While most of this paper focuses on access to energy
sources as a means to facilitate ICT-related growth, I would be
remiss if I failed to note that there are many issues that compete
for attention and funding in Sub-Saharan Africa. The creation of
a green economy does not only require investment in the energy
sector. Growth entails the transformation of society from tradi-
tional mechanisms to innovative modes of knowledge. Access to
ICTs through the use of renewable energy sources is but one way
states may transform their societies.
Endnotes: Shining Sun and Blissful Wind: Access to ICT Solutions
in Rural Sub-Saharan Africa Through Access to Renewable Sources
1 This article will confine ICT solutions to primarily mobile platforms,
distance learning or other e-learning mechanisms, and e-health or other health
related technologies. Energy in this article will refer to both power and electricity
interchangeably; however some statistics refer only to access to electricity or
electricity supplies and not other sources of power generation.
2 Wendy Atkins, This is Africa: Green Light, THIS IS AFRICA ONLINE
(Jan. 5, 2012), http://www.thisisafricaonline.com/news/fullstory.php/aid/369/
Green_light.html.
3 AFRICA MOBILE OBSERVATORY: DRIVING ECONOMIC AND SOCIAL DEVELOPMENT
THROUGH MOBILE SERVICES 39 (GSMA, A.T. Kearney & Wireless Intelligence 2011).
4 Inare Akinola, Africa’s Green Energy Revolution, THIS IS AFRICA ONLINE
(Feb. 26, 2012), http://web.thisisafricaonline.com/print/?pid=1792.
5 See generally AFRICA MOBILE OBSERVATORY: DRIVING ECONOMIC AND SOCIAL
DEVELOPMENT THROUGH MOBILE SERVICES, supra note 3.
6 GSMA, GSM Association, is an association of mobile operators and related
companies dedicated to supporting the standardizing, deployment, and promotion
of the GSM mobile telephone system. GSM ASSOCIATION, http://www.gsma.com.
7 AFRICA MOBILE OBSERVATORY: DRIVING ECONOMIC AND SOCIAL DEVELOPMENT
THROUGH MOBILE SERVICES, supra note 3, at 34.
8 Id.
9 Id.
10 Kenya, CIA WORLD FACTBOOK, https://www.cia.gov/library/publications/
the-world-factbook/geos/ke.html (last updated Mar. 22, 2012).
11 Id.
12 Madanmoham Rao, Mobile Africa Report 2011: Regional Hubs
of Excellence and Innovation, MOBILEMONDAY 35 (March 2011).
13 See Id. at 55.
14 Christine Mungai, Is Kenyan African Silicon Valley?, TALKAFRIQUE, available
at http://www.talkafrique.com/science-and-technology/kenyan-ict-african-
silicon-valley (last visited Apr. 24, 2012).
15 Infrastructure in this context primarily refers to fiber optic cables, satellite
dishes, electric wires, or solar and wind power generators, which allow Internet
connectivity, computing, and battery charging.
16 Gabriel Demombynes, Is Mobile Technology Over-Hyped, WORLDBANK
BLOGS (Mar. 16, 2012, 1:43 PM), http://blogs.worldbank.org/africacan/
node/2107.
17 About, USHAHIDI, http://ushahidi.com/ (last visited Apr. 24 2012).
18 Rao, supra note 12, at 28.
19 Id.
20 AFRICA MOBILE OBSERVATORY: DRIVING ECONOMIC AND SOCIAL DEVELOPMENT
THROUGH MOBILE SERVICES, supra note 3, at 34.
21 Rao supra note 12, at 54.
22 AFRICA MOBILE OBSERVATORY: DRIVING ECONOMIC AND SOCIAL DEVELOPMENT
THROUGH MOBILE SERVICES, supra note 3, at 36.
23 Interview with CEO of Renewable Energy Ventures Joseph Ng’ang’a,
ABNDIGITAL (May 4, 2011).
24 Id.
25 Warigia Bowman, Governance, Technology and the Search of Modernity
in Kenya, 1 WM & MARY POL. REV. 87, 114 (2010).
26 Interview with CEO of Renewable Energy Ventures Joseph Ng’ang’a,
supra note 23.
27 Bowman, supra note 25, at 99.
28 See Rio Declaration on Environment and Development, UN CONFERENCE
ON ENVIRONMENT & DEVELOPMENT principle 9 (1992), available at http://www.
unesco.org/education/information/nfsunesco/pdf/RIO_E.PDF.
29 Bowman, supra note 25, at 99.
30 Universal Access Report, (2004) §§ 2.1.4, 4, (Kenya) available at http://
www.cck.go.ke/services/universal_acce ss/downloads/FinalUAreport.pdf.
31 Ghana, CIA WORLD FACTBOOK, https://www.cia.gov/library/publications/
the-world-factbook/geos/gh.html (last visited Apr. 24, 2012).
32 Id.
33 Kofi Mangesi, Survey of ICT and Education in Africa: Ghana Country Report,
INFODEV.ORG 1, 5 (2007), http://www.infodev.org/en/Publication.406.html.
34 See Id.; see also World Bank Sustainable Development Department,
Ghana’s Infrastructure: A Continental Perspective 21-22, U.N. Doc. WPS5600
(Mar. 2011), available at http://www-wds.worldbank.org/servlet/WDS
ContentServer/WDSP/IB/2011/03/17/000158349_20110317145909/Rendered/
PDF/WPS5600.pdf.; see also AFRICA MOBILE OBSERVATORY: DRIVING ECONOMIC
AND SOCIAL DEVELOPMENT THROUGH MOBILE SERVICES, supra note 3.
35 World Bank Sustainable Development Department, Ghana’s Infrastructure:
A Continental Perspective 21-22, U.N. Doc. WPS5600 (Mar. 2011), available at
http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP /IB/2011/03
/17/000158349_20110317145909/Rendered/PDF/WPS5600.pdf.
36 AFRICA MOBILE OBSERVATORY: DRIVING ECONOMIC AND SOCIAL DEVELOPMENT
THROUGH MOBILE SERVICES, supra note 3, at 36.
37 Mobile Technology for Community Health in Ghana: What it is and What
Garmeen Foundation Has Learned So Far, MOBILE TECHNOLOGY FOR HEALTH
(Mar. 2011), available at http://www.cs.washington.edu/education/courses /
cse490d/12sp/docs/MOTECH.pdf.
38 Garth Moore, Interview: Peering into Ghana’s Mobile Future with
Mac-Jordan Degador, ONE.ORG (Jan. 31, 2012), http://one.org/blog/2012/01/31/
interview-peering-into-ghanas-mobile-future-with-mac-jordan-degadjor/.
39 Background to the Evolution of GARNET, GARNET, http://www.garnet.
edu.gh/ (last visited Apr. 24, 2012).
40 Rio Declaration on Environment and Development, supra note 28, at ch. 21.
41 See Id. at ch. 29.
42 Evan Welsh, Nut Farmers in Ghana Crack Into Mobile Technology, FORBES,
(Sept. 26, 2011), available at http://www.forbes.com/sites/sap/2011/09/26/
nut-farmers-in-ghana-crack-into-mobile-technology/.
43 Id.
44 Id.
45 Moore, supra note 38.
46 AFRICA MOBILE OBSERVATORY: DRIVING ECONOMIC AND SOCIAL DEVELOPMENT
THROUGH MOBILE SERVICES, supra note 3, at 33.
47 Ghana’s Infrastructure: A Continental Perspective, supra note 35, at 21-22.
48 Challenges of Solar PV for Remote Electrification in Ghana, MINISTRY OF
ENERGY (2004), http://www.zef.de/fileadmin/webfiles/renewables/praesentations/
Ahiataku-Togobo_solar%20PV%20Ghana.pdf.
49 Id.
50 Namibia, CIA WORLD FACTBOOK, https://www.cia.gov/library/publications/
the-world-factbook/geos/wa.html (last updated Mar. 27, 2012).
51 Id.
52 EUROPEAN COMMISSION, COUNTRY STRATEGY PAPER AND NATIONAL INDICATIVE
PROGRAMME FOR THE PERIOD 2008-2013 1, 11 (2008), available at http://
ec.europa.eu/development/icenter/repository/scanned_na_csp10_en.pdf.
53 Namibia, supra note 50.
continued on page 60
50 SUSTAINABLE DEVELOPMENT LAW & POLICY
Endnotes: INTRODUCTION TO RIO + 20: A REFLECTION ON PROGRESS SINCE THE FIRST EARTH SUMMIT AND THE OPPOR-
TUNITIES THAT LIE AHEAD
continued from page 7
4 See Agenda 21, U.N. Conference on Environment and Development,
U.N. Doc.
A1CONF.151/26, Preamble §§ 1.1, 1.3 (1992)(emphasis added).
5 See e.g., Kirby, Alex, Will Rio+20 bring anything new to the table?,
THE GUARDIAN (Sept. 30, 2011, 11.32 AM) http://www.guardian.co.uk/
sustainable-business/what-will-happen-at-rio-2012-business-sustainablity;
Clark, Pilita, Rio + 20 talks in ‘need of vision and direction, THE FINANCIAL
TIMES (Apr. 23, 2012, 11:29 PM) http://www.ft.com/intl/cms/s/0/
253d9f90-87c6-11e1-ade2-00144feab49a.html#axzz1ugiyMqtf.
6 Brazil and the European Parliament have both expressed support for the
principle of non-regression. See BRAZIL SUBMISSION TO THE RIO+20 PREPARATORY
PROCESS (Nov. 1, 2011) http://www.uncsd2012.org/content/documents/
BRAZIL%20Submission%20%20English%201.11.11doc.pdf; European
Parliament resolution on developing a common EU position ahead of the United
Nations Conference on Sustainable Development (Rio+20) EUR. PARL. DOC.
P7_TA(2011)0430 (2011), http://www.europarl.europa.eu/sides/getDoc.do?type
=TA&language=EN&reference=P7-TA-2011-430.
7 , Robert Glicksman, The Justifications for Nondegradation Programs
in U.S. Environmental Law, THE NON REGRESSION PRINCIPLE IN ENVIRONMENTAL
LAW (M. Prieur & G. Sozzo, eds.) (forthcoming).
8 See e.g., IPCC releases full report on Managing the Risks of Extreme
Events and Disasters to Advance Climate Change Adaptation, International
Panel on Climate Change (Mar. 28, 2012), http://www.ipcc.ch/news_and_
events/docs/srex/srex_press_release.pdf (concluding that human activities
have likely led to increased frequency of certain extreme climate events over
past 50 years).
9 Prospect of limiting the global increase in temperature to 2º C is getting
bleaker, INTERNATIONAL ENERGY AGENCY (May 30, 2011), http://www.iea.org/
index_info.asp?id=1959 (IEA estimates energy-related carbon dioxide
emissions in 2010 were the highest in history, while an estimated 80% of
projected emissions from the power sector in 2020 are already locked in).
10 WALTER V. REID, ET AL., MILLENNIUM ECOSYSTEM ASSESSMENT: ECOSYSTEMS
AND HUMAN WELL-BEING SYNTHESIS 1 (2005) http://www.maweb.org/documents/
document.356.aspx.pdf.
11 Secretariat of the Convention on Biological Diversity, Global Biodiversity
Outlook 3 5 (2010) http://www.cbd.int/doc/publications/gbo/gbo3-final-en.pdf.
12 Though, as Perry Wallace’s article “International Investment Law and
Arbitration, sustainable development and Rio +20: Improving Corporate
Institutional and State Governance,” points out later in this issue, there are
still many sectors of the investment community who remain disconnected
from the discourse on sustainable development and need to be brought into
the discussion.
13 World Bank, Advancing Sustainable Development: the World Bank and
Agenda 21, Environmentally Sustainable Development Studies and Monographs
Series No. 19 (1997) .
14 Norichika Kanie. Governance With Multilateral Environmental Agreements:
A Healthy or Ill-Equipped Fragmentation, GLOBAL ENVIRONMENTAL GOVERNANCE,
CENTER FOR UN REFORM EDUCATION 68 (Walter Hoffmann and Lydia Swart eds.)
(May 2007) (citing to multiple studies putting the number at around 500); c.f.,
Gregory L. Rose, Gaps in the Implementation of Environmental Law at the
National, Regional, and Global Level (Oct. 12-13, 2011)www.unep.org/delc/
Portals/24151/FormatedGapsEL.pdf.; Discussion paper for First Preparatory
Meeting of the World Congress on Justice, Governance and Law for Environ-
mental Sustainability at 6 (Oct. 12-13, 2011) (estimating a total of 700
environmental agreements, including bilateral and regional agreements).
15 Rose supra, note 14.
16 CHRISTOPHER WOOD, ENVIRONMENTAL IMPACT ASSESSMENT IN DEVELOPING
COUNTRIES: AN OVERVIEW 4 (Nov. 24-25, 2003), www.sed.man.ac.uk/research/
iarc/ediais/pdf/Wood.pdf.
17 Id. A number of the training materials are now available online. See e.g.,
http://www.unep.ch/etb/publications/enviImpAsse.php.
18 Id. at 20 (evaluating the EIA requirement on criteria including their legal
basis, coverage, consideration of alternatives, screening of actions, scoping of
impacts, and reporting requirements).
19 Abdul-Sattar Nizami, et al., Comparative analysis using EIA for developed
and developing countries: case studies of hydroelectric power plans in
Pakistan, Norway, and Sweden, 18 Int’l J. Sustainable Dev. & World Ecology
134-142 (2011) http://www.tandfonline.com/doi/pdf/10.1080/13504509.2011.5
59399; Hummod A. Naser, Evaluation of the Environmental Impact Assessment
in Bahrain, 3 J. of Envtl. Protection 233-239 (2012), www.scirp.org/journal/
PaperDownload.aspx?paperID=17471;Onyenekenwa Cyprian Eneh, Managing
Nigeria’s Environment: The Unresolved Issues, 4 J. Envtl. Science & Technology
250 (2011), http://scialert.net/qredirect.php?doi=jest.2011.250.263&linkid=pdf.
20 For example, the NASA Landsat program has been collecting information
from the Earth’s surface for nearly 40 years now, generating a historical archive
unmatched in quality, detail, coverage, and length. The information generated
from this observation has been used to study a wide variety of subject matter,
from changes in global urbanization, impacts on coastlines following disasters
like hurricane Katrina, and for studies of water consumption from agriculture.
Landsat then and now, NASA.GOV (Jan. 11, 2012), http://landsat.gsfc.nasa.gov/about/.
21 ADAL NAJIM ET AL., GLOBAL ENVIRONMENAL GOVERNANCE: A REFORM
AGENDA, 10-11(2006), http://www.iisd.org/pdf/2006/geg.pdf (listing two pages
of members of the UN Environmental Management Group as an example of the
breadth of different actors engaging in environmental governance activities).
22 Id. at 14-17. See also, Kanie, supra note 14.
23 See Marco Sibaja, Critics: Biggest UN Summit heading toward failure,
FOXNEWS.COM (May 11, 2012, http://www.foxnews.com/world/2012/05/11/
critics-biggest-un-summit-heading-toward-failure/.
24 D. HULME & S. FUKUDA-PARR, INTERNATIONAL NORM DYNAMICS ANDTHE
END OF POVERTY’: UNDERSTANDING THE MILLENNIUM DEVELOPMENT GOALS
(MDGS) 14-15 (2009), http://www.eadi.org/fileadmin/MDG_2015_Publications/
fukuda-parr_and_hulme_2009_international_norm_dynamics.pdf. See also,
Jacob Scherr, Reflections on the Race to Rio: Crowdsourcing Sustainability at
Earth Summit 2012, NRDC BLOG (May 14, 2012), http://switchboard.nrdc.org/
blogs/jscherr/reflections_on_the_race_to_rio.html (“It’s easy to feel depressed
about the state of the Rio+20 preparations [after two weeks of negotiations]….
The governments managed to reach agreement on less than two dozen
paragraphs and have agreed to return for another week of talks at the end of
May to tackle the remaining 400.”).
25 Green economy policies, practices and initiatives, UNCSD2012.ORG,
http://www.uncsd2012.org/rio20/gedatabase.html.
26 Natural Capital Accounting, WORLDBANK.ORG, http://go.worldbank.org/
R0F611S5F0.
27 JEFF WAAGE, ET AL., THE MILLENNIUM DEVELOPMENT GOALS: A CROSS-SECTORAL
ANALYSIS AND PRINCIPLES FOR GOAL SETTING AFTER 2015 (2010), http://download.
thelancet.com/flatcontentassets/pdfs/S0140673610611968.pdf.
28 Id.; see also, SUMNER, ANDREW AND THOMAS LAWO, THE MDGS AND BEYOND:
PRO-POOR POLICY IN A CHANGING WORLD (2010), http://www.eadi.org/fileadmin/
Documents/Publications/policy_wp/EADI_Policy_Paper_March_2010.pdf.
29 Consider also Avilés’ discussion in this issue’s article “Sustainable Develop-
ment and the Legal Protection of the Environment in Europe” regarding the
difficulty of applying the “vague” principles of sustainable development in
the resolution of legal disputes. To the extent that sustainable development is
comprised of sometimes competing meta-principles, they may be too complex
to break down into meaningful rules of application or metrics.
30 Maria Ivanova , Institutional design and UNEP Reform: historical insights
on form, function, and financing, 88 Int’l. Affairs 565, 570 (2012), http://
onlinelibrary.wiley.com/doi/10.1111/j.1468-2346.2012.01089.x/pdf.
51SPRING 2012
Endnotes: MOVING FROM PRINCIPLES TO RIGHTS: RIO 2012 AND ACCESS TO INFORMATION, PUBLIC PARTICIPATION,
AND JUSTICE
continued from page 14
27 See UNEP, GUIDELINES FOR THE DEVELOPMENT OF NATIONAL LEGISLATION
ON ACCESS TO INFORMATION, PUBLIC PARTICIPATION AND ACCESS TO JUSTICE IN
ENVIRONMENTAL MATTERS (Feb. 2010), http://www.unep.org/DEC/PDF/
GuidelinesAccesstoJustice2010.pdf.
28 Id.
29 See Convention on Access to Information, Public Participation in Decision-
Making and Access to Justice in Environmental Matters (June 1998), http://
www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf (referring to the
Aarhus Convention, an agreement that encourages public access to information
and justice on environmental issues) [hereinafter Aarhus].
30 Aarhus, id. at 5.
31 Aarhus, id. at 5.
32 See United Nations Economic Commission for Europe, The Aarhus Conven-
tion’s Compliance Committee Receives 50th Communication (explaining that the
Compliance Committee review cases of alleged non-compliance by a Party to
the Aarhus Convention) http://www.unece.org/press/pr2010/10env_p19e.htm..
33 THE KIEV PROTOCOL ON POLLUTANT RELEASE AND TRANSFER REGISTERS (May
2003), http://www.unece.org/index.php?id=2948&type=111.
34 See id.
35 See CONVENTION ON ENVIRONMENTAL IMPACT ASSESSMENT IN A TRANSBOUNDARY
CONTEXT (Feb. 1991), http://www.unece.org/fileadmin/DAM/env/eia/documents/
legaltexts/conventiontextenglish.pdf (referring to the Espoo Convention
where parties agreed to prevent, reduce and control adverse transboundary
environmental impact).
36 Convention on Environmental Impact, id.
37 United Nations Economic Commission for Europe, Status of Ratification,
http://www.unece.org/fileadmin/DAM/env/eia/ratification.htm.
38 DAVID BANISAR, FREEDOM OF INFORMATION AROUND THE WORLD 2006:
A GLOBAL SURVEY OF ACCESS TO GOVERNMENT INFORMATION LAWS (July 2006),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1707336.
39 Id. at 17.
40 See, e.g., Const. Art. 225 (Braz.).
41 Mark Stephen, Environmental information disclosure programs:
They work, but why?, SOCIAL SCIENCE QUARTERLY 190 — 205 (2003).
42 Steve DeVito, US EPA Toxics Release Inventory International Programs
Officer. Personal Communication, February 2008.
43 NORTH AMERICAN POLLUTANT RELEASE AND TRANSFER REGISTER,
http://www.cec.org/Page.asp?PageID=924&SiteNodeID=596.
44 EUROPEAN POLLUTANT RELEASE AND TRANSFER REGISTER (E-PRTR),
http://prtr.ec.europa.eu/.
45 ARTICLE 19, CHANGING THE CLIMATE FOR FREEDOM OF EXPRESSION AND
FREEDOM OF INFORMATION: HUMAN RIGHTS RESPONSES TO CLIMATE CHANGE
(Dec. 2009), http://www.article19.org/data/files/pdfs/publications/changing-
the-climate-for-freedom-of-expression-and-freedom-of-information.pdf.
46 ARTICLE 19, ACCESS TO ENVIRONMENTAL IN CHINA: EVALUATION OF LOCAL
COMPLIANCE (Dec. 2010), http://www.article19.org/pdfs/reports/access-to-
environmental-information-in-china-evaluation-of-local-compliance.pdf.
47 See FOTI J. ET AL., supra note 3, at 57.
48 See FOTI J. ET AL., supra note 3, at xii.
49 FOTI J. ET AL., supra note 3, at xii.
50 FOTI J. ET AL., supra note 3; ARTICLE 19, INFORMATION SAVES LIVES
DURING HUMANITARIAN CRISES (Mar. 2011), http://www.article19.org/pdfs/press/
information-saves-lives-during-humanitarian.pdf.
51 FOTI J. ET AL., supra note 3, at x.
52 JOHN GLASSON, RIKI THERIVEL & ANDREW CHADWICK, INTRODUCTION TO
ENVIRONMENTAL IMPACT ASSESSMENT 138 (Routledge, 3rd ed. 2005).
53 FOTI J. ET AL., supra note 3, at x.
54 See WORLD BANK, SEAS OVERVIEW, http://wbi.worldbank.org/wbi/topic/
climate-change (last visited May 10, 2012).
55 Directive 2001/42/EC, http://www.central2013.eu/
fileadmin/user_upload/Downloads/Document_Centre/
OP_Resources/04_SEA_directive_2001_42_EC.pdf.
56 These include China, the Philippines, Thailand, and Vietnam.
57 GEORGE PRING & CATHERINE PRING, THE ACCESS INITIATIVE GREENING JUSTICE:
CREATING AND IMPROVING ENVIRONMENTAL COURTS AND TRIBUNALS 9 (2009),
http://www.accessinitiative.org/sites/default/files/Greening%20Justice%20
FInal_31399_WRI.pdf.
58 Id. at 1.
59 Id. at 107-108.
60 Timeliness refers to the amount of time taken to obtain a remedy.
61 See, e.g., Const., Art. 22 (2010) (Kenya).
62 Voice and Choice, supra note 3, also found that framework laws on access to
information had made significant progress while framework laws on and practice
on public participation and access to justice lagged behind.
63 FOTI J. ET AL., WORLD RESOURCES INSTITUTE, A SEAT AT THE TABLE: INCLUDING
THE POOR IN DECISIONS FOR DEVELOPMENT AND ENVIRONMENT 23 (2010), http://
www.wri.org/publication/a-seat-at-the-table.
64 Universal Declaration of Human Rights, Article 19, G.A. Res. 217 (III) A,
U.N. Doc. A/RES/217(III) (Dec. 10, 1948).
65 Article 19, supra note 46, at 20, 61.
66 Article 19, supra note 46, at 20, 61.
67 UNEP Dec. GCSS.XI/11, Environmental Law (Part A), http://www.unep.
org/gc/GCSS-XI/proceeding_docs.asp (annexed to the proceedings of the
special session).
68 Non-UNECE States may only accede “upon approval by the Meeting of the
Parties.” Convention on Environmental Impact Assessment in a Transboundary
Context (the “Espoo Convention), U.N. ECE, art. 17, ¶3 (Feb. 25, 1991).
69 United Nations Economic Commission for Europe, Status of ratification,
http://www.unece.org/env/pp/ratification.html.
70 STEC, ET AL., U.N. ECE, THE AARHUS CONVENTION: AN IMPLEMENTATION
GUIDE, v (2000) http://www.unece.org/fileadmin/DAM/env/pp/acig.pdf
(Secretary-General of the United Nations, Kofi A. Annan, suggesting that
Aarhus Convention may serve as a model for “strengthening the application
of principle 10 in other regions of the world”).
71 See, e.g., United Nations Convention against Corruption, G.A. Res. 58/4
(Oct. 31, 2003).
72 ORGANIZATION OF AMERICAN STATES, DECLARATION OF SANTA CRUZ +10
(Dec. 5, 2006), http://www.oas.org/dsd/Documents/DECLARACTION+10.pdf.
73 See, e.g., Reyes et al. v. Chile, Inter-Am. C.H.R., Inter-American Court
of Human Rights, (Sept. 19 2006), http://www.elaw.org/node/2546.
74 See generally ORGANIZATION OF AMERICAN STATES, ACCESS TO INFORMATION,
http://www.oas.org/dil/access_to_information.htm (last visited May 10, 2012).
75 See, e.g., North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17,
1992, 32 I.L.M. 289 (1993); U.S.-Colom. Trade Promotion Agreement,
U.S.-Colom., Nov. 22, 2006 (entry into force May 15, 2012).
76 Article 19, supra note 46, at 166-167; Lei de Liberdade de Informação,
No.12.527, (Braz. Nov. 28, 2011).
77 BANISAR, supra note 38, at 93-95.
78 See FOTI J. ET AL., supra note 3, at 48.
79 See ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT,
UN ECONOMIC COMMISSION FOR LATIN AMERICA AND CARIBBEAN, OECD
ENVIRONMENTAL PERFORMANCE REVIEWS — CHILE (Jan. 24, 2005), http://www.
oecd.org/dataoecd/63/44/34856244.pdf.
80 See id.
52 SUSTAINABLE DEVELOPMENT LAW & POLICY
AND THE SUSTAINABLE DEVELOPMENT AGENDA
continued from page 20
11 U.N. High Comm’r for Human Rights, Statement for 9 Aug., the International
Day of the World’s Indigenous People (Apr. 16, 2012), http://www.ohchr.org/en/
NewsEvents/Pages/DisplayNews.aspx?NewsID=11284&LangID=E.Aug.
12 See, e.g., Salween Dams, INTERNATIONAL RIVERS, http://www.
internationalrivers.org/southeast-asia/burma/salween-dams (last visited
Dec.Dec. 18, 2010) (reporting that ethnic minority groups, who are already
marginalized and repressed by the Burmese military junta, are “not only being
systematically and forcibly moved from their homes, but also robbed, tortured,
raped or executed” to clear way for the Salween dams and warning that local
ethnic groups, particularly in regions that are not ethnically Burmese and
typically enjoy considerable autonomy over their own affairs, could lash back
in resentment at what are perceived to be deals that do not provide any local
benefits and worse, trample on their rights in the process.); Ben Blanchard,
China Risks Backlash with Myanmar Investments, REUTERS, Jul. 9, 2010, http://
af.reuters.com/article/energyOilNews/idAFTOE66804H20100709?sp=true
(Indeed, in Apr. 2010, a series of bombs exploded at the site of a controversial
hydropower project sponsored by a Chinese company. As one expert explained
the violence, “[w]hen you’re in a situation where you can’t retaliate against your
own government, you can retaliate against perhaps investment by outsiders”).
13 See INFRASTRUCTURE NETWORK, supra note 8, at 2.
14 Id.; Wright, supra note 8, at 56.
15 See Herwig Peeters, Sustainable Development and the Role of the Financial
World, 5 ENVT, DEV. & SUSTAINABILITY 197, 203 (2003) (finding that between
1990 and 1997, annual project finance volumes grew nine-fold from less than
$5 billion to over $50 billion and in 1990, for every dollar of Official Develop-
ment Assistance from multilateral development banks and the International
Monetary Fund, there was less than one dollar of long-term private capital
flows of FDI; however, already as of 2003, FDI had eclipsed ODA four times
over). See generally Benjamin C. Esty, Carin-Isabel Knoop, and Aldo Sesia,
Jr, The Equator Principles: An Industry Approach to Managing Environmental
and Social Risks, HARVARD BUSINESS SCHOOL PUBLISHING CASE NO. 9-205-114
(2005); INFRASTRUCTURE NETWORK, supra note 8; Marco Sorge, The Nature of
Credit Risk in Project Finance, BIS Q. REV. (2004).
16 INFRASTRUCTURE NETWORK, supra note 8, at vii (affirming that since 2003,
the Bank’s infrastructure lending has been gradually recovering and approach-
ing the level of the 1987-98 period, driven in part by a return to financing
hydroelectric dams, such as the Bujagali dam in Uganda, Bumbuna in Sierra
Leone, Felous in Senegal, Nam Theun 2 in Laos, and Rampur in India). See
Leslie Berliant, World Bank Puts Hydropower Back Into Favor, NGOs Do Not,
INSIDE CLIMATE NEWS (July 31, 2009), http://solveclimate.com/blog/20090731/
world-bank-puts-hydropower-back-favor-ngos-do-not; see also World Bank,
Directions in Hydropower: Scaling up for Development, 21 WATER WORKING
NOTES ix (June 2009); World Bank Clings to Fossil Fuels, Stumbles on
Clean Energy, 71 BRETTON WOODS PROJECT (June 17, 2010), http://www.
brettonwoodsproject.org/art-566379 (claiming that the Bank’s financing
of fossil fuel projects has also reached all-time highs, noting that apparent
commitments to limit investment in fossil fuels are belied by other statements
suggesting that coal will remain in the mix of the Bank’s portfolio for some
time into the future, and that these trends may potentially undermine the Bank’s
attempts to transform its energy portfolio, half of which, according to the
SFDCC’s projected targets, would go to “low carbon” investments by 2011).
17 See generally Galit Sarfaty, Why Culture Matters in International
Institutions: The Marginality of Human Rights at the World Bank, 103 AM. J.
INTL L. 647 (2009); IBRAHIM F. I. SHIHATA, THE WORLD BANK INSPECTION
PANEL: IN PRACTICE (2000); DARROW,.supra note 9, at 58.
18 Wright, supra note 8, at 66.
19 See Enrique R. Carrasco & Alison K. Guernsey, The World Bank’s
Inspection Panel: Promoting True Accountability Through Arbitration, 41
CORNELL INTL L.J. 577, 594-601 (2008) (canvassing criticisms of the Word
Bank Inspection Panel); Bridgeman, supra note 10, at 225; Daniel D. Bradlow,
Private Complainants and International Organizations: A Comparative
Study of the Independent Inspection Mechanisms in International Financial
Institutions, 36 GEO. J. INT’L L. 403 (2005) (providing a comparative review
of the strengths and weaknesses of accountability mechanisms).
20 Bradlow, supra note 19, at 211; see generally Niamh O’Sullivan &
Brendan O’Dwyer, Stakeholder Perspectives on a Financial Sector Legitimation
Process: The Case of NGOs and the Equator Principles, 22, ACCT., AUDITING
& ACCOUNTABILITY J. 553 (2009).
21 See generally, id.
22 THE COLLEVECCHIO DECLARATION, http://www.okobank.hu/doc/
collevecchio_declaration.pdf (last visited Apr. 14, 2012).
23 Id. at 1-2.
24 BANKTRACK, Going ‘Round in Circles: An Overview of BankTrack-EPFI
Engagement on Equator Principles , 3 (Jan. 2010) (describing Collevecchio
as “the first ever NGOs position on what sustainable banking should look like,
asking banks to make six commitments to sustainability, do no harm, responsi-
bility, accountability, transparency and good governance” that “[o]utline[d]…
basic requirements on all these areas”).
25 Wright, supra note 8, at 57.
26 Id.
27 See generally THE EQUATOR PRINCIPLES, http://www.equator-principles.com/
resources/equator-principles.pdf (last visited Apr. 15, 2012).
28 Id. at 1.
29 Id.
30 Id.
31 Id.
32 Benjamin C. Esty, An Overview of Project Finance & Infrastructure
Finance — 2006 Update, HARVARD BUSINESS SCHOOL (2007); Michelle Phillips
& Mitchell Pacelle, Banks Accept “Equator Principles” — Citigroup, Barclays,
Others To Shun Projects Hurting Environment, Livelihoods, WALL ST. J., June 4,
2003, at A2.
33 See ABOUT THE EQUATOR PRINCIPLES, http://www.equator-principles.com/
index.php/about-ep/about (last visited Apr. 15, 2012).
34 Id.
35 Id.
36 World Comm’n on Dams, Dams and Development: A New Framework for
Decision-Making, International Institute on Environment and Development,
108 DRYLANDS PROGRAMME 6 (2001) (giving an overview of the WCD, which
consisted of twelve members chosen from a cross-section of interests, views
and institutions, who relied in their work on four regional public consultations,
and a permanent Forum of sixty-eight members from thirty-six countries and
pioneered a new funding model: fifty-four public, private and civil society
organizations contributed to its operations); see generally Navroz K. Dubash,
Viewpoint — Reflections on the WCD as a Mechanism of Global Governance,
3 WATER ALTERNATIVES 416 (2010).
37 See Marina Ottaway, Corporatism Goes Global: International Organizations,
Nongovernmental Organization Networks, and Transnational Business, 7
GLOBAL GOVERNANCE 265, 279 (2001).
38 See Daniel Bradlow, The World Commission on Dams’ Contribution to the
Broader Debate on Development Decision-Making, 16 AMER. U. INTL L. R.
1531, 1546 (2001) (arguing that the WCD contributed to an ongoing shift in
development decision-making that blurs the line between political and technical
approaches through a procedural approach).
39 See generally BANKTRACK, The Outside Job,: Turning the Equator
Principles Towards People and .Planet, (Oct. 2011).
40 Abbott & Snidal, supra note 3, at 520.
41 Vogel, supra note 3, at 262.
42 Id. at 267; see also Tim Bartley, Certifying Forests and Factories: States,
Social Movements, and the Rise of Private Regulation in the Apparel and Forest
Product Field, 31 POL. & SOCY 433, 452 (2003).
43 John G. Ruggie, Reconstituting the Global Public Domain — Issues, Actors,
and Practices, 10 EUR. J. INTL REL. 499, 519 (2004) (explaining that a few of
the more well-known initiatives were created in close collaboration with state
actors, including the Fair Labor Associationoriginally the Apparel Industry
Partnership promoted by the Clinton Administrationthe Extractive Industries
Transparency Initiative and Ethical Trading Initiative, and the Principles on
Security and Human Rights, started with cooperation of the United States and
several other governments other initiatives were created under the auspices of
multilateral international organizations, such as the Organization for Economic
Cooperation and Development’s Guidelines for Multinational Enterprises and
the United Nation’s Global Compact).
44 Kenneth Abbott serves as Professor of Law and Willard H. Pedrick
Distinguished Research Scholar at Arizona State University’s Sandra Day
O’Connor College of Law. He also serves as a Professor of Global Studies
at ASU, and is the Senior Sustainability Scholar for the Global Institute of
Sustainability. Abbott holds a J.D. from Harvard University Law School and
53SPRING 2012
a B.A. in Government from Cornell University. Abbott has written expansively
on issues of international governance. His work focuses largely on economic
regulation, and international environmental legal and institutional issues.
45 Duncan J. Snidal serves as Associate Professor at the University of
Chicago’s Harris School of Public Policy Studies, and the Department of Political
Science. He chairs the Committee on International Relations, and serves as
the Director of the Program on International Politics, Economics, and Security
(“PIPES”). His extensive research focuses on international relations issues,
particularly on matters of international institutions, and political economy.
46 . Kenneth Abbott & Duncan Snidal, The Governance Triangle: Regulatory
Standards Institutions and the Shadow of the State, in THE POLITICS OF GLOBAL
REGULATION 44, 49 (Walter Mattli & Ngaire Woods eds., 2009).
47 Graeme Auld, Steven Bernstein & Benjamin Cashore, The New Corporate
Social Responsibility, 33 ANN. REV. ENVT & RESOURCES 413, 424 (2008).
48 See Guide to Industry Initiatives in Corporate Social Responsibility,
ETHICAL CORPORATION (2009), Oct.www.businessinsociety.eu/resources/3170
(presenting a list of 31 multi-stakeholder industry initiatives); see generally
BUSINESS REGULATION AND NON-STATE ACTORS: WHOSE STANDARDS? WHOSE
DEVELOPMENT (Peter Utting, Darryl Reed & Ananya Mukherjee-Reed eds.,
2012).
49 Abbott and Snidal, supra note 3, at 46.
50 Id.
51 Id.
52 Id. at 63.
53 Id. at 48.
54 Id. at 70.
55 Id.
56 Id. at 46.
57 Id. at 75, 86.
58 Id. at 75.
59 Id.
60 Id. at 83.
61 Id. at 64.
62 Id. at 85.
63 Do the Equator Principles get Reviewed/Revised Regularly?, EQUATOR
PRINCIPLES, http://www.equator-principles.com/index.php/all-faqs/42-about/
frequently-asked-questions/27 (last visited Apr. 17, 2012).
64 Id.
65 Id.
66 Id.
67 See Memoranda, The Equator Principles, EQUATOR PRINCIPLES, 6, http://
www.equator-principles.com/resources/equator_principles.pdf (last updated
June 2006) (applying the principles to all new project financings globally with
total project capital costs of US$10 million or more, and across all industry
sectors. Additionally while the principles intentionally applied retroactively,
they will be applied to all project financings covering expansion or upgrade
of an existing facility where changes in scale or scope may create significant
environmental and/or social impacts, or significantly change the nature or
degree of an existing impact. In these cases, EPFIs commit to make the client
aware of the content, application and benefits of applying the Principles to the
anticipated project, and request that the client communicate to the EPFI its
intention to adhere to the requirements of the Principles when subsequently
seeking financing).
68 See id.
69 See Equator Principles and Citi, CITIGROUP, http://www.citigroup.com/
citi/environment/equator.htm (last visited Apr. 16, 2012).
70 See The Equator Principles, supra note 67 at 2-3, 7.
71 Id. at 3, 5.
72 Id. at 5.
73 Id. at 4.
74 Id. at 2, 7.
75 Id. at 3.
76 Id.
77 See Guidance Notes, INTERNATIONAL FINANCE CORPORATION (Jan. 1, 2012),
http://www1.ifc.org/wps/wcm/connect/e280ef804a0256609709ffd1a5d13d27/
GN_English_2012_Full-Document.pdf?MOD=AJPERES.
78 WORLD BANK, ENVIRONMENTAL, HEALTH, AND SAFETY (EHS) GUIDELINES
(2007), http://www1.ifc.org/wps/wcm/connect/554e8d80488658e4b76af76a651
5bb18/Final%2B-%2BGeneral%2BEHS%2BGuidelines.pdf?MOD=AJPERES.
79 See Suellen Lazarus, Equator Principles Strategic Review: Final Report,
THE EQUATOR PRINCIPLES (Feb. 17, 2011), http://www.equator-principles.com/
resources/exec-summary_appendix_strategic_review_report.pdf.
80 See Important Update on the Progress and Timeline of the EP III Update
Process, EQUATOR PRINCIPLES, http://www.equator-principles.com/index.php/
all-news-media/ep-association-news (last visited Apr. 16, 2012).
81 See Letter from Shawn Miller, Chair of EPFI Steering Committee, to
Greg Radford, Director, Environmental & Social Development (July 28, 2010),
http://www.equator-principles.com/resources/EPFI_Letter_to_IFC_Jul2010.pdf.
82 Jan.Apr.See generally History of the Equator Principles, EQUATOR
PRINCIPLES, http://www.equator-principles.com/index.php/about-ep/history
(last visited Apr. 17, 2012).
83 See Motoko Aizawa, Green Credit, Green Stimulus, Green Revolution?
China’s Mobilization of Banks for Environmental Cleanup, 19 JOURNAL OF
ENVIRONMENT AND DEVELOPMENT 119 (2010), available at http://jed.sagepub.
com/content/19/2/119.full.pdf+html.
84 See The Outside Job: Turning the Equator Principles Towards People
and Planet, BANKTRACK 2, 3 (Oct. 2011), http://www.banktrack.org/download/
the_outside_job/111021_the_outside_job_final.pdf.
85 See The Equator Principles Strategic Review, EQUATOR PRINCIPLES,
http://www.equator-principles.com/index.php/governance-management/
the-equator-principles-strategic-review (last visited Apr. 17, 2012).
86 See Unproven Equator Principles, BANKTRACK, 1-2 (June 2005), http://
www.banktrack.org/download/unproven_equator_principles_a_banktrack_
statement/050606_unproven_equator_principles_a_banktrack_statement.pdf.
87 See BANKTRACK, http://www.banktrack.org/ (last visited Apr. 16, 2012).
88 See The Outside Job,, supra note 84, at 34-36.
89 See id.
90 See The Outside Job, supra note 84, at 8; Johan Frijns, Follow up on
Washington Meeting, BANKTRACK, 3 (June 23, 2009), http://www.banktrack.
org/download/follow_up_letter_on_washington_ngo_epfi_meeting/090623_
follow_up_letter_to_epfis_on_washington.pdf.
91 See generally Niamh O’Sullivan & Brendan O’Dwyer, Stakeholder
Perspectives on a Financial Sector Legitimation Process: The Case of NGOs
and the Equator Principles, 22 ACCOUNTING, AUDITING & ACCOUNTABILITY JOURNAL
553 (2009), http://search.proquest.com/docview/211296111?accountid=8285.
92 See generally What we did in 2010: Summary of BankTrack Activities,
BANKTRACK, 5, http://www.banktrack.org/manage/ems_files/download/annual_
report_2010_41/110322_annual_report_2010.pdf (last visited Apr. 16, 2012).
93 Id.
94 See The Outside Job, supra note 84, at 5-7, 10-11.
95 Id. at 7-9.
96 Id. at 8.
97 Id. at 10-12.
98 Id. at 13-14.
99 See O’Sullivan, supra note 91, at 553-87 (noting one banker stated EPFIs
were “already regulated by the fact that they operate in the glare of the NGO
scrutiny,” a sentiment echoed by IFC Director of Environmental and Social
Development) (explaining resentment of statements saying it is up to “NGOs
to keep the pressure on, to make sure things are implemented”).
100 See Kenneth Abbott, The Governance Triangle: Regulatory Standards
Institutions and the Shadow of the State, Princeton University Press, 7-14
(Mar. 2008), http://www.asil.org/files/abbotsnidal_Mar.2008.pdf.
101 See Ottaway, supra note 37 (noting that NGOs do not necessarily represent
the public or common interests as much as their own private interests and some-
times in contradictory ways, and even when they do have overlapping interests
or claim to represent those of others (i.e., globally Northern NGOs representing
disenfranchised groups in the global South), this is not without concerns, either
about accountability or paternalism; moreover, they note NGOs’ are institutions
with organizational prerogatives of survival and thus, fundraising, which can
come into tension with their missions, and more broadly, as organizations they
can develop pathologies. In addition, some NGOs, like unions, have direct
material interests in the issues in which they engage themselves).
102 No v.See generally INTERNATIONAL FINANCE CORPORATION, ABOUT IFC,
http://www1.ifc.org/wps/wcm/connect/CORP_EXT_Content/IFC_
External_Corporate_Site/About+IFC/ (last visited Apr. 17, 2012).
103 See The Equator Principles Ass’n — Governance & Mgm’t, EQUATOR
PRINCIPLES, http://www.equator-principles.com/index.php/governance-
management/governance-and-management (last visited Apr. 17, 2012).
104 See The Equator Principles Working Groups, EQUATOR PRINCIPLES,
http://www.equator-principles.com/index.php/best-practice-resources/
working-groups (last visited Apr. 17, 2012).
105 See The Equator Principles Ass’n — Governance & Mgm’t, supra note 103.
106 See The Equator Principles Ass’n — Governance & Mgm’t, supra note 103.
107 See generally The Equator Principles Strategic Review, supra note 85.
54 SUSTAINABLE DEVELOPMENT LAW & POLICY
108 See The Equator Principles, supra note 67, at 5 (stating principle 7:
“Indepent Review: For all Category A projects and, as appropriate, for Category
B projects, an independent social or environmental expert not directly associated
with the borrower will review the Assessment, AP and consultation process
documentation in order to assist EPFI’s due diligence, and assess Equator
Principles compliance”).
109 See Abbott, supra note 100, at 3, 4.
110 See Investor Group Representing over US$15 Trillion Calls for Action on
Climate Change, United Nations Environment Programme, http://www.unep.
org/Documents.Multilingual/Default.asp?DocumentID=651&ArticleID=683
0&l=en (last visited Apr, 17, 2012) (more than one-quarter of global market
capitalization).
111 Id.
112 See About Us, PRINCIPLES FOR RESPONSIBLE INVESTMENT, http://
www.unpri.org/about/ (last visited Apr. 17, 2012).
113 See Signatories, PRINCIPLES FOR RESPONSIBLE INVESTMENT, http://
www.unpri.org/signatories/ (last visited Apr. 17, 2012).
114 See Jon Entine, UN Global Compact: Ten Years of Greenwashing?,
Ethical Corporation (Nov. 1, 2010), http://www.ethicalcor p.com/
governance-regulation/un-global-compact-ten-years-greenwashing; Elaine
Cohen, UN Global Compact: Celebrating Ten Years of What?, CSRWIRE
(Nov. 23, 2010), http://www.csrwire.com/csrlive/commentary_detail/3325-
The-UN-Global-Compact-celebrates-10-years-of-what-; Dec.Ten Years of
Setting the Record Straight, UNITED NATIONS GLOBAL COMPACT, http://
unglobalcompact.wordpress.com/2010/11/04/10-years-of-setting-the-record-
straight/ (last visited Apr. 17, 2012); Press Release: UN Global Compact
punishes companies for failing to play its greenwash game, but not for violating
its Principles (Mar. 29, 2012), http://info.babymilkaction.org/pressrelease/
pressrelease29mar12 (arguing that while companies are expelled for failing to
submit COPs, other companies, such as Nestlé, a Patron Sponsor of the Rio+20
Corporate Sustainability Forum, “get away with submitting misleading reports
and systematically violating the Global Compact Principles”).
115 See Jo Confino, Cleaning up the Global Compact: dealing with corporate
free riders, THE GUARDIAN (Mar. 26, 2012), http://www.guardian.co.uk/
sustainable-business/cleaning-up-un-global-compact-green-washApr.; see also
About Us, UNITED NATIONS GLOBAL COMPACT, http://www.unglobalcompact.org/
AboutTheGC/index.html (last visited Apr. 17, 2012).
116 See Corporate Responsibility: Investors Give New Twist to Good Cop/Bad
Cop routine, PRINCIPLES FOR RESPONSIBLE INVESTMENT, http://www.unpri.org/files/
PRI_GCphII_final.pdf (last visited Apr. 17, 2012).
117 Id.
118 Id.
119 See Update of IFC’s Pol’y and Performance Standards on Environmental
and Social Sustainability, and Access to Information Pol’y, INTERNATIONAL
FINANCE CORPORATION (Apr. 14, 2011), http://www1.ifc.org/wps/wcm/connect/
fca42a0049800aaaaba2fb336b93d75f/Board-Paper-IFC_SustainabilityFrame-
work-2012.pdf?MOD=AJPERES (revising standards to “introduce[] a resource
efficiency concept for energy, water, and core material inputs”; “strengthen[]
focus on energy efficiency and greenhouse gas measurement”; “reduce[] green-
house gas emissions thresholds for reporting to IFC from 100,000 tons of CO2
to 25,000 tons of CO2 per year”; “require[] determination of accountability
with regards to historical pollution”; and introduces the concept of “duty of
care” for hazardous waste disposal).Jan.Apr.Apr.
120 See THE CARBON PRINCIPLES, http://www.carbonprinciples.com/ (last visited
Apr.Apr. 17,Apr. 2012).
121 See Biodiversity for Banks Program (B4B), EQUATOR PRINCIPLES, http://
www.equator-principles.com/index.php/best-practice-resources/b4b (last visited
Apr.Apr. 17,Apr. 2012).
122 See RIO+20 CORP. SUSTAINABILITY FORUM, http://unglobalcompact.cvent.
com/events/rio-20-corporate-sustainability-forum/custom-18-251b87a2deaa4e-
56a3e00ca1d66e5bfd.aspx (last visited Apr. 15, 2012); see generally Financiers
Search for Sustainable Future, EARTHSUMMIT2012, http://www.earthsummit2012.org/
earth-summit-in-the-press/financiers-search-for-sustainable-future (last visited
Apr. 17, 2012).
123 See generally http://www.un.org/geninfo/bp/enviro.html (last visited
Apr.15, 2012) (noting that “[s]ome 2,400 representatives of non-governmental
organizations (NGOs)” attended).
Endnotes: COMPULSORY LICENSING IN TRIPS: CHINESE AND INDIAN COMPARATIVE ADVANTAGE IN THE MANUFACTURE
AND EXPORTATION OF GREEN TECHNOLOGIES
1 See Robert Fair, Does Climate Change Justify Compulsory Licensing of
Green Technology?, 6 INTERNATIONAL LAW & MANAGEMENT REVIEW 21, 23
(2009) (referencing a joint resolution issued by Brazil, China, and India).
2 See Eco-Accord, United Nations Conference on Sustainable Development,
Proposals for Rio+20: Sustainable Development Needs a New Impetus ¶ 15
(Nov. 1, 2011), http://www.uncsd2012.org/rio20/index.php?page=view&type=5
10&nr=525&menu=20; TRIPS: Agreement on Trade-Related Aspects of Intel-
lectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the
World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 313 (1994), available
at http://www.wto.org/english/docs_e/legal_e/27-trips_04c_e.htm [hereinafter
TRIPS Agreement] (defining that it is appropriate to use
compulsory licensing for “extreme urgency”).
3 See Sarah M. Wong, Environmental Initiative and the Role of the USPTO’s
Green Technology Pilot Program, 16 MARQ. INTELL. PROP. L. REV. 233, 243
(2012); TRIPS AND HEALTH: FREQUENTLY ASKED QUESTIONS, http://www.wto.org/
english/tratop_e/trips_e/public_health_faq_e.htm (last visited Apr. 24, 2012).
4 BERNICE LEE ET AL., CHATHAM HOUSE REPORT, WHO OWNS OUR LOW CARBON
FUTURE? INTELLECTUAL PROPERTY AND ENERGY TECHNOLOGIES 23, 27, 30, 34, 40
(2009) (providing data that of the entire world’s green energy patents the U.S.
based companies hold 27.2% of wind patents, 40.4% of solar photovoltaic
patents, 40.4% of biomass-to-electricity patents, 37.8% of concentrated solar
power patents, and 68.4% of carbon capture patents).
5 See Kate Nuehring, Our Generation’s Sputnik Moment: Comparing the
United States’ Green Technology Pilot Program to Green Patent Programs
Abroad, 9 NORTHWESTERN JOURNAL OF TECHNOLOGY AND INTELLECTUAL PROPERTY
609, 616 (2011).
6 See generally Michael Hasper, Note, Green Technology in Developing
Countries: Creating Accessibility through a Global Exchange Forum, 1 DUKE
COMPULSORY LICENSING IN TRIPS: CHINESE AND INDIAN COMPARATIVE
ADVANTAGE IN THE MANUFACTURE AND EXPORTATION OF GREEN
TECHNOLOGIES
continued from page 21
Information and technology transfer to China and India
through compulsory licensing offers a unique opportunity
to exploit the benefits of international trade to promote an
environmentally sustainable future. However, international
cooperation at the Rio+20 conference will be crucial in promot-
ing this opportunity by finally dealing with the issue of how
to maintain intellectual property rights while disseminating
the benefits of these technologies. While methods to mitigate
short-term economic costs should be considered, Rio+20 must
recognize the promise that compulsory licensing holds for
reducing emissions in the long run and acknowledge the urgent
need to make green technology available to the developing world
at an affordable price.
55SPRING 2012
L. & TECH. REV. (2009) (explaining the unique hurdle that intellectual property
rights create).
7 See Rasmus Lema and Adrian Lema, Whither Technology Transfer? The
Rise of China and India in Green Technology Sectors, paper prepared for the 8th
GLOBELICS International Conference, Kuala Lumpur, Malaysia 17 (2010).
8 TRIPS Agreement, 1869 U.N.T.S. 313.
9 See Eco-Accord, United Nations Conference on Sustainable Development,
Proposals for Rio+20: Sustainable Development Needs a New Impetus ¶ 15
(Nov. 1, 2011).
10 See Robert Fair, Does Climate Change Justify Compulsory Licensing of
Green Technology?, 6 INTERNATIONAL LAW & MANAGEMENT REVIEW 21, 26
(2009); for how to cite this decision- http://www.wto.org/english/tratop_E/
TRIPS_e/implem_para6_e.htm.
11 See Fair, supra note 9, at 28.
12 See Wong, supra note 8.
13 See generally TIM WILSON, INSTITUTE OF PUBLIC AFFAIRS, UNDERMINING
MITIGATION TECHNOLOGY: COMPULSORY LICENSING, PATENTS AND TARIFFS (2008)
(claiming that compulsory licensing would have a negative effect on economic
growth and green technology innovation).
14 See Bronwyn H. Hall and Christian Helmers, The Role of Patent Protection
in (Clean) Technology Transfer, 26 SANTA CLARA COMPUTER & HIGH TECH. L.J.
487, 492 (2010).
15 See id. at 493.
16 See TRIPS Agreement, 1869 U.N.T.S. 313; Veronique Greenwood, Who
Owns Green Tech?, SEED MAGAZINE (Jul. 30, 2009), http://seedmagazine.com/
content/article/intellectual_property_who_owns_green_tech/.
17 See JEROME REICHMAN ET AL., CHATHAM HOUSE, INTELLECTUAL PROPERTY
AND ALTERNATIVES: STRATEGIES FOR GREEN INNOVATION 30 (2008) (noting that
compulsory licensing is especially useful when companies refuse to make the
technology affordable in a particular country).
18 Rasmus Lema and Adrian Lema, Whither Technology Transfer? The Rise
of China and India in Green Technology Sectors, paper prepared for the 8th
GLOBELICS International Conference, Kuala Lumpur, Malaysia 19 (2010)
(noting the importance of licensing to spur more competition and innovation
in China and India).
19 See Cameron Hutchison, Does TRIPS Facilitate or Impede Climate Change
Technology Transfer into Developing Countries?, 3 U. OTTAWA L. & TECH.
J. 517, 527-28 (2006) (recognizing that inflexible intellectual property rights
regimes can stifle follow-on innovations).
20 Katy Daigle, Associated press, Rising powers say new bank can help
development
http://www.google.com/hostednews/ap/article/ALeqM5jcvOCTIx57W9v4p85b
hnFNfSCkqA?docId=951a797b59ab4a289d0ac09128eef0c6.
21 See Robert Fair, Does Climate Change Justify Compulsory Licensing of
Green Technology?, 6 INTERNATIONAL LAW & MANAGEMENT REVIEW 21, 22 (2009).
22 See Joanna I. Lewis, Building a National Wind Turbine Industry: Experi-
ences from China, India, and South Korea, 5 INTL J. TECH. & GLOBALISATION
281, 283-90 (2011); Lema and Lema, supra note 18, at 8-13; Ucillia Wang,
Chinese Manufacturers Cement Their Hold on Global Solar Market, FORBES
(Feb. 27, 2012, 1:10 PM), http://www.forbes.com/sites/uciliawang/2012/02/27/
chinese-manufacturers-cement-their-hold-on-global-solar-market/.
Endnotes: INTERNATIONAL INVESTMENT LAW AND ARBITRATION, SUSTAINABLE DEVELOPMENT, AND RIO+20: IMPROVING
CORPORATE INSTITUTIONAL AND STATE GOVERNANCE
continued from page 28
35 Roland Kläger, ‘Fair and Equitable Treatment’ and Sustainable
Development, in SUSTAINABLE DEVELOPMENT IN WORLD INVESTMENT LAW
241-42 (Marie-Claire Cordonier Segger, Markus W. Gehring, & Andrew
Newcombe eds., 2011).
36 See generally Tecnicas Medioambientales Tecmed S.A. v. United Mexican
States, ICSID Case No. ARB(AF)/00/2, Award (May 29, 2003).
37 Id. at ¶154 (cited in MTD v. Chile, ICSID Case No. ARB(AF)/01/7, Award,
¶112; Occidental Exploration and Production Co. v. Ecuador, LCIA Case No.
UN3467, Award, ¶185 (July 1, 2004).
38 Saluka Investments BV v. Czech Republic, UNCITRAL, Partial Award,
¶304-05 (Mar. 17, 2006) See, IISD, at 17-18.
39 Kläger, supra note 37, at 242.
40 Id.
41 See IISD, supra note 35, at 18-19.
42 See Comprehensive Economic Cooperation Agreement Between the
Republic of India and the Republic of Singapore, India-Sing., June 29, 2005.
43 Id.
44 Restatement (Third) of Foreign Relations Law § 206 (1987).
45 See generally United Nations Conference on Trade and Development,
Taking of Property, U.N. Doc. UNCTAD/ITE/IIT/15 (2000), http://www.
unctad.org/en/docs//psiteiitd15.en.pdf.
46 Id.
47 OECD, “Indirect Expropriation” and the “Right to Regulate” in International
Investment Law, International Investment Law: A Changing Landscape (2005).
48 Id. at 46-47.
49 Id. at 44.
50 Id.
51 Caroline Henckels, Indirect Expropriation and the Right to Regulate, 15 J.
INTL ECON. L. 223, 225 (2012) (Fn. 4).
52 Waste Management v. United Mexican States (Waste Management II),
ICSID Case No. ARB(AF)/00/3, Award (April 30, 2004), http://www.state.gov/
documents/organization/34643.pdf.
53 Id. at ¶¶ 159,160.
54 Henckels, supra note 53, at 225.
55 Tecnicas Medioambientales S.A. v. Mexico (TECMED), ICSID Case
No. ARB (AF)/00/2, Award (May 29, 2003), http://icsid.worldbank.org/
ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId
=DC602_En&caseId=C186.
56 Metalclad Corp. v. United Mexican States, ICSID Case No. ARB(AF)/97/1,
Award (Aug. 30, 2000), http://icsid.worldbank.org/ICSID/FrontServlet?requestT
ype=CasesRH&actionVal=showDoc&docId=DC542_En&caseId=C155.
57 Id. at ¶ 111.
58 Methanex Corporation v. United States at Part II, Chap. D, ¶ 16.
59 Id. at Part I, ¶ 1.
60 Id.
61 Methanex, Part IV, Chap. D, ¶ 7.
62 IISD, supra note 35, at 22, 23.
63 See IISD, supra note 35, at 23-24.
64 UNITED STATES MODEL BILATERAL INVESTMENT TREATY, Article 3(1), (2004),
http://www.state.gov/documents/organization/117601.pdf. Article 3(2) sets
forth the same language, with the exception that the word “investments” is
substituted for the word “investors” as it appears in Article 3(1).
65 Kate Miles, Sustainable Development, National Treatment and Like
Circumstances in Investment Law in SUSTAINABLE DEVELOPMENT IN
WORLD INVESTMENT LAW 265, 268-269 (Marie-Claire Cordonier Segger,
Markus W. Gehring, Andrew Newcombe eds., 2011).
66 See id. at 269 (describing a broad interpretation of the term, which in
turn captures a range of regulation and governmental decision-making that
is virtually limitless).
67 Id.
68 Miles, supra note 67, at 269.
69 S.D. Myers, Inc. v. Government of Canada, First Partial Arbitral Award, ¶
243 (Nov. 13, 2000), 8 ICSID Rep. 3 at 52-53.
70 Id. at 55, ¶ 256.
71 Id. at 26, ¶¶ 89-93.
72 Id. at 29, ¶¶ 109-112.
73 Id. at 54, ¶¶ 250.
74 Id. at 76, ¶¶ 241-56.
75 Id. at 54, ¶¶ 251, 255.
76 Pope & Talbot v. Canada, Award on the Merits of Phase 2, ¶ 78,
Arbitral Tribunal (April 10, 2001) available at http://www.inter national.gc.ca/
trade-agreements-accords-commerciaux/assets/pdfs/Award_Merits-e.pdf.
77 IISD, supra note 35, at 29.
78 See IISD, supra note 35, at 50.
56 SUSTAINABLE DEVELOPMENT LAW & POLICY
79 Central American-Dominican Republic-United States Free Trade
Agreement, Article 10.4(1), Aug. 5, 2004, http://www.ustr.gov/sites/default/
files/uploads/agreements/cafta/asset_upload_file328_4718.pdf (last visited Apr.
18, 2012). Article 10.4(2) contains similar language, but it applies to “covered
investments” rather than “investors” as in Article 10(4)(1).
80 See IISD, supra note 35, at 29-30.
81 Emilio Augustin Maffezini v. Kingdom of Spain, ICSID Case No.
ARB/97/7, Decision on Objections to Jurisdiction, (Jan. 25, 2000) 16 ICSID
Rev. (2001), http://icsid.worldbank.org/ICSID/FrontServlet?requestType=Cases
RH&actionVal=showDoc&docId=DC565_En&caseId=C163.
82 See IISD, supra note 35, at 30.
83 See, e.g., Plama Consortium Ltd. v. Bulgaria, ICSID Case No.
ARB/03/24, Decision on Jurisdiction (Feb. 8, 2005), http://icsid.worldbank.
org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId
=DC521_En&caseId=C24; Salini Costruttori S.p.A. v. Jordan, ICSID Case No.
ARB/02/13, Decision on Jurisdiction (Nov. 29, 2004), http://icsid.worldbank.
org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId
=DC635_En&caseId=C218.
84 IISD, supra note 35, at 32.
85 Id.
86 Id.
87 Id. at 33.
88 Id.
89 See Id. at 34 (describing the variety of approaches states take to ensure
their policy goals).
90 See id. at 33 (stating that in fact states use performance requirements
to gain technology).
91 Id. at 32.
92 Treaty between the United States of America and the Argentine Republic
Concerning the Reciprocal Encouragement and Protection of Investment, Art.
2(2)(c), concluded on 14 Nov. 1991.
93 Nigel Blackaby and Constantine Partasides, with Alan Rederrn and Martin
Hunter, REDERN AND HUNTER ON INTERNATIONAL ARBITRATION
506-08 (Oxford, 5th ed. 2009).
94 See id. at 482-83 (stating that umbrella clauses may elevate contractual
rights to the level of treaty rights).
95 Id. at 482-83.
96 Andrea Shemberg, Stabilization Clauses and Human Rights,vii (Ma. 11,
2008) (Research project conducted for IFC and the United Nations Special
Representative to the Secretary General on Business and Human Rights), http://
www.ifc.org/ifcext/enviro.nsf/AttachmentsByTitle/p_StabilizationClausesandH
umanRights/$FILE/Stabilization+Paper.pdf.
97 See id. at 35-36 (discussing the use of stabilization clauses to exempt
companies from regulation).
98 Blackaby, supra note 95, at 483.
99 IISD, supra note 35, at 68.
100 Id.
101 Id.
102 IISD, supra note 35, at 48.
103 Id. at 49.
104 Id. at 50.
105 IISD, supra note 35, at 51-52.
106 See Innovation and Collaboration for the Future We Want, RIO+20
CORPORATE SUSTAINABILITY FORUM, http://csf.compact4rio.org/events/rio-20-
corporate-sustainability-forum/custom-125-251b87a2deaa4
e56a3e00ca1d66e5bfd.aspx (last visited Apr. 18, 2012).
Endnotes: SUSTAINABLE DEVELOPMENT AND THE LEGAL PROTECTION OF THE ENVIRONMENT IN EUROPE
continued from page 34
49 Under this Program, the European Union issued a series of important
“framework directives” such as this Council Directive on ambient air quality
assessment and management. The new regulation model called for the issuance
of framework directives to revise and codify older directives and to leave the
technical details of implementing such directives to a series of “daughter
directives” such as Council Directive 1999/30/EC of 22 April 1999 laying down
limit values for sulfur dioxide, nitrogen dioxide, nitrogen oxides, particulates,
and lead in the ambient air. See Council Directive 96/62, 1996 O.J. (L 296) (EC).
50 Council Decision No. 2179/98, of 24 Sept. 1998, O.J. (L 275) (EC) 1.
51 Communication from the Commission to the Council and European
Parliament, Ten years after Rio: Preparing for the World Summit on Sustainable
Development in 2002, at 2, COM (2001) 53 final (June 2, 2001), http://
eur-lex.europa.eu/LexUriServ/site/en/com/2001/com2001_0053en01.pdf.
52 Victoria Jenkins, Communication from the Commission: A Sustainable
Europe for a Better World: A European Union Strategy for Sustainable
Development (Commission’s Proposal to the Gothenburg European Council)
COM (2001) 264 Final, 14 J. ENVTL. L. 261, 262-263 (2002).
53 Communication from the Commission to the Council, the European
Parliament, the Economic and Social Committee and the Committee of the
Regions On the Sixth Environment Action Programme of the European Com-
munity, ‘Environment 2010: Our future, Our choice’ The Sixth Environment
Action Programme COM/2001/0031 final, http://eur-lex.europa.eu/LexUriServ/
LexUriServ.do?uri=CELEX:52001DC0031:EN:HTML; Council Decision (EC)
No. 1600/2002 of 22 July 2002, O.J. (L 242) 1.
54 Consolidated Version of the Treaty on the Functioning of the European
Union, art 11, May 9, 2008, 2008 O.J. (C 115) 53.
55 Id.
56 Jenkins, supra note 52, at 263-64.
57 SIRINI WITHANA, ET. AL., INST. FOR ENVTL. POLY, STRATEGIC ORIENTATIONS
OF EU ENVIRONMENTAL POLICY UNDER THE SIXTH ENVIRONMENT ACTION
PROGRAMME AND IMPLICATIONS FOR THE FUTURE FINAL REPORT 2 (May 2010),
http://www.ieep.eu/assets/556/Strategic_Orientations_of_6EAP_-_Revised_
report_-_May_2010.pdf.
58 Id. at 95-96.
59 Consolidated Version of the Treaty on European Union art 3(3), May 9,
2008, 2008 O.J. (C 115) 17 [hereinafter TEU].
60 TEU art. 3(3).
61 CATHERINE BARNARD, THE SUBSTANTIVE LAW OF THE EU: THE FOUR FREEDOMS
21 (2nd ed. 2007).
62 TEU art. 3(3).
63 Id.
64 TEU art. 3(5).
65 TEU art. 21(2)(d).
66 TEU art. 21(2)(f).
67 TEU art. 6(1).
68 Charter of Fundamental Rights of the European Union, 2000/C 364/01,
art. 37, 2000 O.J. (C 364) 1.
69 Gillroy, supra note 26, at 12.
70 Meaning that EU institutions will be able to rely on Article 11 framework
provisions to determine how best to ensure that development activities respect
and account for environmental impacts.
71 TFEU art. 11.
72 See TFEU art. 191 (declaring the objectives and the policy that should
be followed to achieve them).
73 TFEU art. 191(1).
74 TFEU art. 191(2).
75 See Marko Ahteensuu, Defending the Precautionary Principle against Three
Criticisms, 11 TRAMES 366, 366 (2007) (submitting a “standard formulation of the
[precautionary] principle” from the Science and Environment Health Network,
which stated that “‘[w]hen an activity raises threats of harm to human health or
the environment, precautionary measures should be taken even if some cause
and effect relationships are not fully established scientifically’”).
76 The principal form of legislation issued by the EU comes in the forms of
Regulations, which are directly binding on Members States through Directives.
Directives must be properly transposed into the national laws of Members
States within the time frame provided in the Directive. See TFEU art. 288.
77 EUROPEAN COMMISSION (DG ENVIRONMENT), WATER NOTE 1: JOINING FORCES
FOR EUROPES SHARED WATERS: COORDINATION IN INTERNATIONAL RIVER BASIN
DISTRICTS, 3 (Mar. 2008), http://ec.europa.eu/environment/water/participation/
pdf/waternotes/water_note1_joining_forces.pdf
78 See SCHRIJVER & WEISS, supra note 20, at 574.
79 See Hans Vedder, The Treaty of Lisbon and European Environmental Law
and Policy, J. ENVTL. L., 285, 287-288 (2010) (noting that EU environmental
objectives specifically reference relations between the EU and the rest of the
world, especially regarding global sustainable development focused on equity
and prudent management of global natural resources).
57SPRING 2012
80 See Batty, supra note 18, at 30 (discussing sustainable development’s
integration into newly drafted constitutions of the British government, making
the principle a fundamental aspect of urban planning decisions, “impos[ing] on
the urban planning system a duty to implement the Government’s strategy for
sustainable development”).
81 TFEU art. 191(2).
82 E.g. Case 302/86, Comm’n v. Denmark, 1988 E.C.R. 4627 [hereinafter
Danish Bottles] (holding that the transportation of goods in commerce can
be halted in order to protect the environment).
83 Id.
84 See Case 302/86, Comm’n v. Denmark, 1988 E.C.R. 4627 [hereinafter
Danish Bottles].
85 The Cassis de Dijon doctrine allowed a court to halt the free movement of
goods, holding that “[o]bstacles to movement within the community resulting
from disparities between the national laws relating to the marketing of products
in question must be accepted insofar as those provisions may be recognized as
being necessary in order to satisfy mandatory requirements relating in particular
to the effectiveness of fiscal supervision, the protection of public health, the
fairness of commercial transactions and the defence of the consumer.” Case
120/78, Rewe Zentral AG v. Bundesmonopolverwaltung für Branntwein, 1979
E.C.R. 649, 662 ¶ 8.
86 Danish Bottles, supra note 82, at ¶ 21–23.
87 See Joined Cases C-379/08 & C-380/08, Raffinerie Mediterranee (ERG)
SpA, ENI SpA v. Ministero Ambiente e Tutela del Territorio e del Mare, 2010
E.C.R. I1919 [hereinafter Raffinerie].
88 Council Directive 2004/35/EC of the European Parliament and of the
Council of 21 April 2004 on Environmental Liability with Regard to the
Prevention and Remedying of Environmental Damage, 2004 O.J. (L 143) 56.
89 Raffinerie, supra note 87, at ¶¶ 79-92.
90 Id. at ¶ 28.
91 Id. at ¶ 92.
92 See TFEU art. 193 (“The protective measures adopted pursuant to Article
192 shall not prevent any Member State from maintaining or introducing more
stringent protective measures. Such measures must be compatible with the
Treaties. They shall be notified to the Commission.”).
93 Raffinerie, supra note 87, at ¶ 1.
94 Id. at ¶ 2.
95 Case C-343/09, Afton Chemical Limited v. Secretary of State for Transport,
2010 E.C.R.
96 Id. at ¶ 1–2.
97 Id. at ¶ 28, 34.
98 Id. ¶¶ 60–62.
99 Id. ¶¶ 61–64.
100 TFEU art. 192(4)–(5).
101 See TFEU art. 11 (stating that sustainable development is a goal of the
European Union).
102 See generally, James R. May, Not at All: Environmental Sustainability in the
Supreme Court, 10 SUSTAINABLE DEV. L. & POLY 20 (2009) (arguing that the
status of sustainable development in the United States legal system is currently
threatened by the close negative scrutiny of the Roberts’ Supreme Court).
103 TEU art. 1.
Endnotes: CHINA IN AFRICA: CURING THE RESOURCE CURSE WITH INFRASTRUCTURE AND MODERNIZATION
continued from page 41
30 Id. (positing that there are hardly any linkages between a modern, outward
looking sector and the rest of an economy focused on traditional sectors).
31 Id. at 31 (citing a World Bank study to conclude that “[d]ualism goes hand
in hand with very high levels of income inequality” which is much higher in
developing countries than in advanced economies).
32 Id. at 79 (exemplifying J.H. Boeke’s analysis of Indonesian economics to
demonstrate how internal cultural and industrial characteristics can influence
the continuation of traditional sectors and stagnation of modern sectors).
33 See id. at 79-81 (detailing how investment of accumulated capital in
industrial sectors can encourage entrepreneurship and lead to a sustainable
progression from traditional, agrarian societies to mature, consumption drive
societies(citing W.W. ROSTOW, STAGES OF ECONOMIC GROWTH (1960)); but see id.
at 273-275 (explaining that, in early stages of development, increased produc-
tivity in agriculture is crucial because it assures a source of food, frees up labor
for use elsewhere, encourages domestic savings of capital for investment in
industry and infrastructure, and provides a market for manufactured goods, both
to maintain productivity and as a new consumer base).
34 Id. (describing that one important aspect of this type of economic analysis is
that at some point, with enough investment, a state will reach the “take-off” stage
where the economy changes drastically toward sustainable industry-lead growth).
35 Id. at 564 (concluding that because traditional economic institutions do
not provide sufficient incentives for growth, “countries must explicitly pursue
a structural policy aimed at increasing their productive capacities and the
efficiency of the production structure).
36 PAUL COLLIER, THE BOTTOM BILLION: WHY THE POOREST COUNTRIES ARE
FAILING AND WHAT CAN BE DONE ABOUT IT 5 (2007).
37 See U.N. Econ. Comm. For Africa, Sustainable Development Report on
Africa 83 (2008), http://www.uneca.org/eca_resources/publications/books/sdra/
(stating that many African economies are dependant on extractive industries,
which constitute fifty percent of Africa’s exports); id. at 85 (“Mineral resources
are non-renewable, finite and unevenly distributed across space. The wealth
that they generate is transient and vulnerable to rent seeking. In addition, their
exploitation is often capital-intensive rather than labor-intensive and creates
enclave economies that have little or no links with the wider national economy.
The above attributes generate daunting policy challenges that are difficult to
manage and overcome.”); see also COLLIER, supra note 35, at 39 (relating that
twenty-nine percent of people in the bottom billion live in countries in which
resource wealth dominates the economy).
38 See SZIRMAI, supra note 4, at 281-83 (giving examples of several ways in
which primary exports can be a potential benefit to developing economy).
39 Id. at 282.
40 Id.
41 See id. at 283 (describing how resource wealth can provide a stimulus for
a market for manufactured imports and domestic industrial production).
42 See, e.g., Paul Mitchell, Taxation and Investment Issues in Mining, in
ADVANCING THE EITI IN THE MINING SECTOR 27, 27 (Christopher Eads et al.
eds., 2009) (finding that tax revenues derived from mining activities represent
an important public policy issue and examining the role of tax regimes in
development generally).
43 See generally COLLIER, supra note 35, at 38-52 (describing the natural
resource trap).
44 Id. at 39-40.
45 SZIRMAI, supra note 4, at 282 (explaining that surplus foreign exchange can
be used to “ease bottlenecks in industrial production by importing productive
capital goods and intermediate goods”).
46 See COLLIER, supra note 35, at 39-40 (citing as an example Nigeria, where
“[a]s oil revenues built up, the country’s other exports–such as peanuts and
cocoa–became unprofitable, and production rapidly collapsed”).
47 Id. at 40 (finding that Dutch disease alone was not enough to explain the
problems resource-rich countries face).
48 See id. at 40-41 (exemplifying Kenya and Nigeria as countries which have
seen their resource “gravy train come to an abrupt end” and are then faced with
drastically reduced revenues).
49 See id. at 40 (positing that in times of resource wealth booms, “rational
public investment is liable to go out the window” and public spending will
increase dramatically).
50 See id. at 40-41 (showing how the economic hardships resulting from the
bust of Nigeria’s oil boom in 1986 were easily blamed on economic reforms
required by international financial institutions, diverting attention away from
the misuse and corruption which was the norm when Nigeria was previously
flushed with resource wealth).
51 Id. at 42.
52 See id. at 45 (“The tragedy is that where bribery becomes acceptable it
can be effective, because using your vote to support a party offering public
services rather than selling it to the patronage party is not in your individual
self-interest.”).
53 See, e.g., id. (“Indeed, we find that the more ethnically diverse the society,
the worse the performance of a resource-rich democracy.”); Rotimi T. Suberu,
The Travails of Nigeria’s Anti-Corruption Crusade, in CORRUPTION, GLOBAL
SECURITY, AND WORLD ORDER 260, 261 (Robert I. Rotberg, ed. 2009) (finding
that a “culture of corruption is structurally rooted in the country’s ethnic frag-
mentation” and an “attendant statism (the sweeping control of the state over
the economy)” which is aggravated by massive resource wealth).
54 COLLIER, supra note 35, at 46.
58 SUSTAINABLE DEVELOPMENT LAW & POLICY
55 Id. (explaining that in societies where patronage politics are the norm,
“democratic politics tend to attract crooks rather than altruists” and it becomes
a competition of survival of the fittest, where the most corrupt emerge as
winners).
56 Id. at 50.
57 See CHIRS ALDEN, CHINA IN AFRICA 14, 38 (2007) (recognizing that over 800
Chinese companies are doing business in forty-nine African countries because
“Africa, with its rich natural resources and under-exploited markets” serves as
a proving ground for new Chinese international businesses).
58 Id. at 14.
59 Organization of Economic Cooperation and Development (OECD),
Investment Policy Reviews: China 2008, at 105 (2008), http://www.oecd.org/
dataoecd/25/11/41792683.pdf.
60 The Chinese in Africa: Trying to Pull Together, THE ECONOMIST (Apr. 20,
2011), http://www.economist.com/node/18586448.
61 Id.
62 SERGE MICHEL & MICHEL BEURET, CHINA SAFARI: ON THE TRAIL OF BEIJINGS
EXPANSION IN AFRICA 65-68 (2009).
63 Id. at 65 (reporting that “figurines depicting big cats, ostriches, and
rhinoceroses” brought to China in 1414 show that this was a two-way exchange
of artifacts).
64 Id. at 66 (stating that China’s early explorations in Africa hit a highpoint
in a small window of thirty years where China had been “looking beyond its
borders in a manner that would not be repeated for five hundred years”).
65 Id. at 68 (expounding that Zhou Enlai, “China’s most prominent foreign
affairs official of the period” was well-received amid much fanfare); see also
JOSEPH CAMILLERI, CHINESE FOREIGN POLICY: THE MAOIST ERA AND ITS AFTERMATH
99 (1980) (relating that Zhou reiterated in every African capital that the struggle
for political independence would have to incorporate a policy of economic self-
reliance stressing “‘correct leadership’, ‘relying on the strength of the masses’
and careful utilization of natural resources”).
66 THOMAS W. ROBINSON & DAVID L. SHAMBAUGH, CHINESE FOREIGN POLICY:
THEORY AND PRACTICE 286 (1994).
67 CAMILLERI, supra note 64 at 94.
68 See id. at 99-100 (listing a number of projects financed and technical
assistance given by China starting in 1964).
69 ROBINSON & SHABAUGH, supra note 65 at 287 (recounting that the Tan-Zam
Railroad was undertaken as a “direct contribution to the liberation cause” as a
way of striking at European power).
70 See id. at 310 (noting that the repayment of the $500 million price for the
Tan-Zam railroad has been postponed a number of times); MICHEL & BEURET,
supra note 61, at 68 (relating that “60 of the 50,000 Chinese who built the
eighteen tunnels and forty-seven bridges died” but that the completed railroad
demonstrated China’s growing technical prowess); but see Ioannis Gatsiounis,
China Biggest Beneficiary of Its Africa Largess, THE WASHINGTON TIMES
(Mar. 9, 2012), http://www.washingtontimes.com/news/2012/mar/9/
china-biggest-beneficiary-of-its-african-largess/ (reporting that by 2008
the Tanzam railroad was “on the verge of collapse due to financial crisis”).
71 See ROBINSON & SHABAUGH, supra note 65, at 287 (remarking that the
railroad was intended to enable Zambia to be used as a base for guerillas
fighting white regimes in Eastern and South Africa, as much as it was intended
to loosen the European grip on regional economics); CAMILLERI, supra note 64,
at 100 (relating that the Chinese reserved their “most substantial assistance to
those countries whose policies were opposed to the existing international order”).
72 MICHEL & BEURET, supra note 61, at 68-69 (explaining how the change
in Chinese politics led to a readjustment toward “healthy development of the
economic and commercial relation with Africa” (quoting YUAN WU, CHINA
AND AFRICA, 1956-2006, at 51-52 (2006)).
73 MICHEL & BEURET, supra note 61, at 69-70 (citing RONALD MARCHAL,
AFRIQUE-ASIE: UNE AUTRE MONDIALISATION? (2008)).
74 Id. at 69 (observing that Africa was an obvious place to start to “reemerge
from the resultant ostracism by the international community”).
75 See id. (noting the common bond that African leaders faced with “the emer-
gence of a stronger democractic movement” worked to strengthen ties with China).
76 See id. at 20-21 (relating a conversation with a Chinese diplomat who noted
that the Cold War drove investment in an ideological manner, but that the end
of the Cold War marked a turning point where “[Chinese] aid would no longer
be as one-way as it had been before, that it would have to become mutually
beneficial”).
77 Id. at 69-70 (imparting how Western involvement, making democracy
a precondition for financial aid, is often viewed in a negative light, especially
in the Chinese narrative)
78 Id. at 8 (recounting how President Hu Jintao’s visits invoke the rhetoric of
freeing “his African brothers” from the “bitter Washington consensus (privatiza-
tion, democratization, governance) with a much sweeter Beijing consensus”).
79 OECD, Annual Report: Resource Flows to Fragile and Conflict-Affected
States, at 31 (2010), http://www.oecd.org/dataoecd/51/53/46043358.pdf (report-
ing that foreign direct investment fell in 2008 from $1.2 trillion to $707 billion
and that it is falling in Africa, as a whole).
80 Id. (reporting that commodity prices had fallen by thirty-eight percent in
the second half of 2008 alone and that prices for commodities such as copper
and oil remain extrememly volatile).
81 Martyn Davies, OECD Development Centre, How China is Influencing
Africa’s Development, at 9 (Apr. 2010), http://www.oecd.org/dataoecd/34/39/
45068325.pdf (citing PRICEWATERHOUSE COOPERS, JUNIOR MINE SURVEY (Feb. 2009)).
82 Id. (relating that prior to the crisis Africa had committed to 2361 infrastruc-
ture projects, but only 1114 projects continued in 2010, a reduction of 52.8%).
83 Id. (quoting A.K. Izaguirre, World Bank Public-Private Infrastructure
Advisory Facility, New Private Infrastructure Projects in Developing Countries
Continue to Take Place But Projects Are Being Affected by the Financial Crisis
(Mar. 2009), http://ppi.worldbank.org/features/March2009/200903PPIFinancial
CrisisImpact.pdf.
84 Id. (“The sovereign nature of Chinese capital deployment in the global
economy is enabling Chinese financial institutions to allot capital in this
so-called ‘counter-cyclical’ fashion.”).
85 Id. at 9-10 (listing main actors from the policy bank sector to include the
China Export-Import (“EXIM”) Bank, the China Development Bank through
its recently launched China-Africa Development Fund, China Construction
Bank, and the Industrial Commercial Bank of China (“ICBC”).
86 Sarah Childress, Foreign Investment Cushions Downturn in Africa,
THE WALL STREET J. (June 27, 2009), http://online.wsj.com/article/
SB124607031091264351.html.
87 MICHEL & BEURET, supra note 61, at 175.
88 Id. (emphasis added).
89 Id. at 178.
90 African Development Bank (“AFDB”), Chinese Trade and Investment
Activities in Africa, 1 Pol’y Brief No. 4 (July 29, 2010), http://www.afdb.org/
fileadmin/uploads/afdb/Documents/Publications/Chinese%20Trade%20%20
Investment%20Activities%20in%20Africa%2020Aug.pdf.
91 See MICHEL & BEURET, supra note 61, at 175 (asserting that China is forced
into a tough position because it is“at the back of the line when the oil companies
are dividing up Africa,” and that getting a “fair share [for China] can be
difficult, particularly when [it has] no former colonial ties on which to draw”).
92 See, e.g., id. at 178 (noting Chinese oil exploration in various African
countries, while the “West was busy locking up as much of the Gulf of Guinea
as possible”).
93 AFDB, supra note 89, at 1 (stating that “Chinese firms are generally less
averse to risk than their Western counterparts”); see also MICHEL & BEURET,
supra note 61, at 178 (describing how, only two months after an attack killed
nine Chinese in Ethiopia, a Chinese oil company signed a contract to prospect
oil “among the many battlefields of Somalia–without the knowledge of the
Somali prime minister”); China trying to mediate oil impasse between Sudan,
South Sudan, again stepping up Africa role, ASSOCIATED PRESS (Dec. 7, 2011),
http://www.washingtonpost.com/world/middle-east/china-trying-to-mediate-oil-
impasse-between-sudan-south-sudan-stepping-up-africa-role/2011/12/07/
gIQAXVZIcO_story.html (relating that China has close relationships with both
North and South Sudan where it has recently entered into disputes to moderate
between the two countries and assure the flow of oil continues).
94 AFDB, supra note 89, at 4.
95 HAROLD R. NEWMAN ET AL, U.S. GEOLOGICAL SURVEY, THE MINERAL
INDUSTRIES OF AFRICA (2009), http://minerals.usgs.gov/minerals/pubs/
country/2009/myb3-sum-2009-africa.pdf.
96 Davies, supra note 80, at 16 (noting that mining operations are to begin in
2013); Richard Mills, Cobalt and Other Critical Raw Materials, RES. INVESTOR
(June 23, 2011), http://www.resourceinvestor.com/News/2011/6/Pages/
Cobalt--Other-Critical-Raw-Materials.aspx (relating that the deal gave China
“rights to the vast copper and cobalt resources of the North Kivu”).
97 Mills, supra note 95.
98 Antonaeta Becker, To DR Congo, With Trouble, ALLAFRICA.COM (May 10,
2010), http://allafrica.com/stories/201005101838.html (reporting that a
commission of the National Assembly of the DRC is investigating).
99 Davies, supra note 80, at 11.
100 See id. (referring to a 2005 Chinese Government foreign policy White
Paper which encourages the concession model of investment).
59SPRING 2012
101 V. Zutterfield Foster, World Bank Public-Private Infrastructure Advisory
Facility, China’s Emerging Role in Africa (Oct. 2008).
102 Ed Cropley, RPT-Africa needs $93 bln/yr for infrastructure –report,
REUTERS (Nov. 12, 2009), http://www.reuters.com/article/2009/11/12/
idUSLB294340 (“In most African countries, particularly the lower-income
countries, infrastructure emerges as a major constraint on doing business,
depressing firm productivity by about 40 percent.” (quoting a report by the
Infrastructure Consortium for Africa)); Davies, supra note 80, at 18 (observing
that logistical challenges to transportation frustrate attempts to integrate domes-
tic and regional economies and to form value chains of production and the cost
of transportation is higher in Africa than other developing economies).
103 Africa Progress Panel, Africa Progress Report 2011, at 15 (Apr. 2011)
(contending that with increasing pressures on public finances, African states
are focusing on other sources of funding such as public-private partnerships to
create infrastructure).
104 Margareta Drzeniek Hanouz and Robert Z. Lawrence, Enhancing Trade in
Africa: Lessons from the Enabling Trade Index, in WORLD ECONOMIC FORUM,
AFRICA COMPETITIVENESS REPORT 2009, at 111 (2009) (citing Hansen, P. & L.
Anovazzi-Jakab, Facilitating Cross-Border Movement of Goods: A Sustainable
Approach, in THE GLOBAL
ENABLING TRADE REPORT 2008, at 67-76 (2008).
105 Id. (citing World Bank, Doing Business 2007 (2007)).
106 Vivian Foster et al., World Bank, Building Bridges: China’s Growing
Role as Infrastructure Financier for Sub-Saharan Africa, at viii (2008),
http://siteresources.worldbank.org/INTAFRICA/Resources/Building_Bridges_
Master_Version_wo-Embg_with_cover.pdf (highlighting two sectors which
receive the most investiture from China as power and transportation).
107 Id.
108 Id. at vi.
109 See, e.g., Gatsiounis, supra note 69 (reporting that “many Chinese projects
use Chinese labor and materials, minimizing skills transfer and stunting local
production”); but see Davies, supra note 80, at 21 (positing that such insulation
from African labor may be due to the interests in rapid completion of projects
“which have delivery dates often determined by government seeking the
political kudos from their completion”).
110 See, e.g., Gatsiounis, supra note 69 (citing the near collapse of the Tanzam
railroad as an example of how, in Chinese investment, “the host partner often
lacks the culture of maintenance and funds to sustain [the project]”).
111 Davies, supra note 80, at 10.
112 THE ECONOMIST, supra note 59 (remarking that much of this diversification
is occurring at the request of African states themselves).
113 Id.
114 Paola Bellabona and Francesca Spigarelli, Moving from Open Door to Go
Global: China Goes on the World Stage, 1 INTL J. CHINESE CULTURE AND MGMT
93, 94 (2007), http://www.inderscience.com/storage/f612117382451910.pdf
(“Go Global! is the slogan with which the Chinese authorities, since 2000, have
been encouraging local enterprises to invest abroad (emphasis in original));
contra Davies, supra note 80, at 24 (stating that the Go Global strategy was
announced in 2002).
115 AFDB, supra note 89, at 1 (commenting that Go Global’s “main features
are consistent with China‘s general policy, which is aimed at lessening its
energy and other natural resource constraints and increasing outlets for its
manufactured products”).
116 Davies, supra note 80, at 24 (contending that the FDI represented by the
Go Global strategy is “likely to rise as Chinese firms seek to offset protectionist
sentiment that is rising during the global economic crisis”).
117 Id.
118 AFDB, supra note 89, at 1 (suggesting that successful SEZs will establish
“a framework for collaboration that includes engagement from host governments,
processes for phasing-in local control, communication and enforcement of
standards, and support for integration with local economies”).
119 Id.
120 See SHIRZMAI, supra note 4, at 282 (relating how forward and backward
linkages associated with extractive industries can be used to encourage
sustainable economic development by creating structural changes in an
economy toward a more diverse industrial sector).
121 Davies, supra note 80, at 27.
122 Ron Sandry & Hannah Edinger, World Bank, China’s Manufacturing
and Industrialization in Africa, at 26 (Working Paper No. 128, May 2011)
(commenting, as well, that “the easing of rules that protect workers and limit
negative externalities from investment may cause neighboring countries to
lower their own standards” resulting in a “race to the bottom”).
123 Emmanuel K. Dogbevi, CEPA Warns of Dutch Disease as Ghana Moves
from Cocoa to Oil, Ghana Business News (May, 28, 2011), http://www.
ghanabusinessnews.com/2010/05/28/cepa-warns-of-dutch-disease-as-
ghana-moves-from-cocoa-to-oil-economy/ (stating the belief that Ghana’s
economy, which had been largely based on Cocoa for the last 100 years,
would become one based upon oil).
124 Id.
125 See ALAN BEATTIE, FALSE ECONOMY 118 (2009) (proscribing that, in a
potential Dutch disease situation, revenue deriving from the extractive industry
needs to be “managed in a way that does not distort the rest of the economy”
whereby “[s]pending should flow at a rate that can be maintained into the long
term” and that revenue should be used to strengthen the rest of the economy
through “improve[ed] infrastructure, education, and overall productive capacity”).
126 See, e.g., Nicholas Shaxson, Oil, Corruption, and the Resource Curse,
83 INTL AFFAIRS 1123 (2007) (relating how the resource curse encourages
patronage politics and the fractionalization of societies).
127 See, e.g., Rob Crilly, Chinese Seek Resources, Profit in Africa, USA TODAY
(June 21, 2005), http://www.usatoday.com/money/world/2005-06-21-africa-
china-usat_x.htm (“The Kenyan government is enthusiastic about closer
economic cooperation. Alfred Mutua, its spokesman, says China is an easy
country to do business with. ‘The Chinese do not peg their economic activity or
aid to political conditions,’ he says. ‘You never hear the Chinese saying that they
will not finish a project because the government has not done enough to tackle
corruption. If they are going to build a road, then it will be built.’”).
128 Shaxson, supra note 125, at 1133-34.
129 Rio Declaration, supra note 3, princ. 12.
130 Fact Sheet, EITI, http://eiti.org/files/2011-10-20_EITI_Fact_Sheet_English.
pdf (last visited, Apr. 30, 2012).
131 Id.
132 Id.
133 See generally, EITI, ACHIEVEMENTS AND STRATEGIC OPTIONS: EVALUATION OF
THE EXTRACTIVE INDUSTRIES TRANSPARENCY INITIATIVE 32-36 (2011), http://eiti.
org/files/2011-EITI-evaluation-report.pdf (admitting that aggregated data does
not show any kind of EITI influence, “much less a determinant one,” but that
specific country level analysis may provide a better evaluation of EITI impact).
134 EITI Countries, EITI, http://eiti.org/countries (last visited Dec. 17, 2011).
135 See EITI, NIGERIA EITI: MAKING TRANSPARENCY COUNT, UNCOVERING
BILLIONS (2012) (highlighting the success EITI audits have had in exposing
deficiencies in governance and public finance to public scrutiny).
136 Francisco Paris, China and the EITI, EITI (Feb 19, 2010 11:32), http://
eiti.org/blog/china-and-eiti.
137 Id.
138 See id. (noting that China has encountered challenging political and
operating environments and has come late to the pursuit of African resources).
139 Id. (quoting EITI Principle No. 2).
140 Id. (advocating that China would benefit from EITI compliance because it
will demonstrate a “commitment to the best international business and invest-
ment practices” and will help promote stable conditions which ensure “energy
availability and access, while contributing to sustainable development”).
141 See Shaxson, supra note 125, at 1134 (remarking on examples where a
society is aware of corruption yet officials were not condemned for their corrupt
acts because there was no sense of accountability due to patronage politics and
the lack of taxation).
142 Id. (observing that externally imposed corruption agendas are not likely to
be as effective as domestic movements which address patronage socially).
143 SEN, supra note18, at 2 (pointing out that “political freedom in the form of
democratic arrangements helps to safeguard economic freedom”).
144 Shaxson, supra note 125, at 1129 (relating that horizontal political relations
in a society create broad consensus, but that vertical relationships encourage
patronage and fragmentation).
145 Id. at 1133 (calling for more research in societal fractionalization); Bo
Rothstein, “Anti-Corruption: the Indirect ‘Big Bang’ Approach,” 18 R. of Int’l
Pol. Econ. 239, 246 (2011) (concluding that corruption is essentially a factor of
social agency–people will act corruptly or not, depending upon what they think
others will do–and, therefore, a society must develop social trust that no-one
will act in a corrupt manner).
146 Rio Declaration, supra note 3, princ. 12.
147 See Rio Declaration, supra note 3, princ.12 (encouraging public awareness
and participation in decision-making); De Silva, supra note 1 (noting that 178
countries affirmed Principle 10).
148 De Silva, supra note 1 (explaining the role of The Access Initiative and
World Resources Institute in securing rights granted under Principle 10).
60 SUSTAINABLE DEVELOPMENT LAW & POLICY
149 Id. (giving examples of new accountability represented by “constitutions
and laws [which] now guarantee freedom of information in nearly 100 countries
and many more have enacted administrative processes, such as permitting
systems or environmental impact assessments that mandate public participation.
. . [and] [s]pecialized environmental courts and tribunals [which] have been
established in over 44 countries providing additional environmental dispute
resolution forums.”).
150 Id. (quoting the U.N. Secretary General to have called for governments
to do more to “build on progress made to promote transparency and account-
ability through access to information and stakeholder involvement in
decision-making”).
151 U.N. High-Level Panel on Global Sustainability, Resilient People, Resilient
Planet: A Future Worth Choosing, at 10 (2012) [hereinafter Panel Report]
(stating that the need to integrate different aspects of society to achieve
development has been accepted knowledge for a quarter century).
152 Rio Declaration, supra note 3, princ. 1 (“Human beings are at the centre
of concerns for sustainable development.”)
153 Panel Report, supra note 150, at 10 (“Citizens will no longer accept
governments and corporations breaching their compact with them as custodians
of a sustainable future for all. More generally, international, national and local
governance across the world must fully embrace the requirements of a sustain-
able development future, as must civil society and the private sector.”).
154 De Silva, supra note 1 (finding that only open policies will be able fight
rent capture and corruption and that successful policies will “depend upon
broad-based constituencies that have been engaged in and benefit from
sustainable development”).
155 MAYA FORSTATER ET AL., THE INSTITUTE OF WEST-ASIAN AND AFRICAN STUDIES
OF THE CHINESE ACADEMY OF SCIENCES, CORPORATE RESPONSIBILITY IN AFRICAN
DEVELOPMENT: INSIGHTS FROM AN EMERGING DIALOGUE 19 (Oct. 2010), http://
www.hks.harvard.edu/m-rcbg/CSRI/publications/workingpaper_60.pdf (noting
that, unlike in the West where pressure for CSR has been driven by civil society,
in China it has been driven by the government as a stakeholder).
156 Id. at 13.
157 Id. at 19 (reporting the results of a study conducted by members of the
Institute of West-Asian and African Studies of the Chinese Academy of
Social Sciences and the John F. Kennedy School of Government at Harvard
University).
158 Id. at 19-20.
159 Id. at 36.
160 PEW RESEARCH CENTER, GLOBAL UNEASE WITH MAJOR WORLD POWERS
(2007), http://www.pewglobal.org/files/pdf/256.pdf (finding in a 2007 survey
of Africans in ten countries that in nine out of the ten countries, by a margin of
between 61% and 91%, African respondents said Chinese influence was good,
substantially exceeding the positive response for American influence).
161 Forstater, supra note 154, at 8 exhibit 1.
162 See, e.g. El Tayeb Siddig, China vows to support Sudan after southern
secession, REUTERS, Aug. 8, 2011, http://www.reuters.com/article/2011/08/09/
us-sudan-china-idUSTRE77800Z20110809.
Endnotes: SHINING SUN AND BLISSFUL WIND: ACCESS TO ICT SOLUTIONS IN RURAL SUB-SAHARAN AFRICA THROUGH
ACCESS TO RENEWABLE SOURCES
continued from page 60
54 A local NGO and Telecom Namibia collaboratively created, Xnet
Development Trust, which provides affordable Internet access to various social
sectors like, education, health, and agriculture; The Namibian Ministry of
Education developed TECH/NA!, which provides “educational institutions with
hardware, software,” Internet and technical support, as well as, education for
“administrators, staff, teachers, and learned in ICT literacy” Shafika Isaacs,
Survey of ICT and Education in Africa: Namibia Country Report, InfoDEV.
org (2007), http://www.infodev.org/en/Publication.420.html; however programs
have not proven effective as seen with SchoolNet Namibia. A not-for-profit
civil society organization intended to provide “sustainable, affordable open
source technology solutions and Internet access . . . to schools” and other
education-based organizations throughout Namibia, but has “failed because
of mismanagement by the Ministry of Education and a lack of vision inside
the ministry” Augetto Graig, Namibian ICT State Shocking, NAMIBIAN SUN
(Oct. 21, 2011), available at http://www.namibiansun.com/content/click/
namibian-ict-state-shocking.
55 See Namibia, supra note 50 (acknowledging Namibia’s formal
independence as 1990).
56 See generally Namibia Vision 2030, (2004) (Namibia) available at http://
www.npc.gov.na/vision/pdfs/Summary.pdf; see also Interview with Minister
of Information and Communication Technology Joel Kaapanda, ITU TELECOM
WORLD, (Oct. 24, 2011).
57 Interview with Minister of Information and Communication Technology
Joel Kaapanda.
58 AFRICA MOBILE OBSERVATORY: DRIVING ECONOMIC AND SOCIAL DEVELOPMENT
THROUGH MOBILE SERVICES, supra note 3, at 34.
59 Interview with Vestas Vice President of Communications Andrew Hilton,
VESTAS CENTRAL EUROPE, (Nov. 8, 2011).
60 Africa Mobile Observatory: Driving Economic and Social Development
through Mobile Services, supra note 3, at 38.
61 Country Strategy Paper and National Indicative Programme for the Period
2008-2013, supra note 50, at 14.
62 Id. at 38.
63 Ghana’s Infrastructure: A Continental Perspective, supra note 35, at 21-22.
64 Ariel Schwartz, Truly Local Power: African Wind Turbines Built From
Scrap, CO.EXIST, http://www.fastcoexist. com/1679335/truly-local-power-
african-wind-turbines-built-from-scrap (last visited Apr. 24, 2012).
65 See generally Rio Declaration on Environment and Development, supra
note 28, at principle 4.
66 AFRICA MOBILE OBSERVATORY: DRIVING ECONOMIC AND SOCIAL DEVELOPMENT
THROUGH MOBILE SERVICES, supra note 3, at 37.
67 Akinola, supra note 4.
68 Id.
69 Id.
70 Ghana’s Infrastructure: A Continental Perspective, supra note 35, at 37.
71 R.B. Hiremath et al., Decentralised Renewable Energy: Scope, Relevance,
and Applications in the Indian Context, 13 ENERGY FOR SUSTAINABLE DEVELOP-
MENT 4 (2009).
72 Id.
73 Atkins, supra note 2.
74 R.B. Hiremath et al., supra note 71, at 4-10.
75 Id.
76 Peter Kahare, Innovation and Diversification Are Key for Kenya’s
Renewable Energy Industry, (February 20, 2012), available at
http://www.renewableenergyworld.com/rea/news/article/2012/02/
innovation-and-diversification-are-key-for-kenyas-renewable-energy-industry.
77 Id.
78 Id.
79 Henry Gichungi, Solar Potential in Kenya (2010), available at http://
www.sv.uio.no/iss/english/research/projects /solar-transitions/announcements/
Kenya-Henry_Gichungi.pdf.
80 Renewable Energy Sector, MINISTRY OF ENERGY (Ghana), http://www.
energymin.gov.gh/index105.php?pgtid=1&cntid= 11&pgt=Renewable%20
Energy%20Sector (last updated Dec. 2010).
81 Id.
82 Challenges of Solar PV for Remote Electrification in Ghana, supra note 48.
83 Solar Energy in Namibia Comes of Age, TOTALSOLARENERGY.CO.UK, http://www.
totalsolarenergy.co.uk/solar-power-in-namibia.html (last visited March 18, 2012).
84 Uwe Deichmann, Craig Meisner, Siobhan Murray & David Wheeler,
THE WORLD BANK, The Economics of Renewable Energy Expansion in Rural
Sub-Saharan Africa 2 (Jan. 2010).
85 Id. at 2.
86 Energy: Mission Statement, MINISTRY OF MINES & ENERGY (2006, Namib.),
available at http://www.mme.gov.na/directe.htm.
87 Id.
88 R.B. Hiremath et al., supra note 71, at 4-10.
89 Id.
90 Id.
91 Kahare, supra note 72.
92 Kenyan Wind Farm, Africa’s Largest, to Produce Lowest Cost Electricity,
CLEANTECHNICA.COM (Mar. 25, 2012), http://cleantechnica.com/2012/03/25/
kenyan-wind-farm-africas-largest-to-produce-lowest-cost-electricity/.
61SPRING 2012
93 Id.
94 Pascal Kelvin Kudibor, Ghana has 5,600 MW of Wind Potential —
Prof. Akabzaa, GHANA BUSINESS NEWS (Aug. 2, 2011), available at
http://www.ghanabusinessnews.com/2011/08/22/ghana-has-5600-
mw-of-wind-energy-potential-prof-akabzaa/.
95 See Id. (quoting the Chief Director at the Ministry of Energy on potential
renewable energy sources).
96 Ghana’s Infrastructure: A Continental Perspective, supra note 35, at 21-22.
97 Leigh Darroll, Turning Wind Turbines in Ghana, J. AFRICAN ENERGY (2004).
98 Jerome Kisting, BAOBAB EQUITY MANAGEMENT (PTY) LTD., OPPORTUNITIES
IN THE RENEWABLE ENERGY SECTOR IN NAMIBIA 19 (March 2008), available
at http://www.highcommissionofindia.web.na/documents/Renewable%20
energy-opportunities%20in%20Namibia.pdf.
99 Id.
100 Interview with Vestas Vice President of Communications Andrew Hilton,
supra note 59.
101 Id.
102 See generally MINISTRY OF ENERGY, SESSIONAL PAPER NO. 4 ON ENERGY
(Kenya, 2004), available at http://www.google.com/url?sa=t&rct=j&q=&esrc
=s&frm=1&source=web&cd=3&ved=0CFMQFjAC&url=http%3A%2F%2F
www.erc.go.ke%2Ferc%2FRegulations%2FSESSIONAL%2520PAPER%2520
4%2520ON%2520ENERGY%25202004.pdf&ei=KH21T83PL8fJ6gGwqIDm
Dw&usg=AFQjCNFPFibnTHEs0qT5FgB2dk_YbN3afw.
103 Id. at § 2.4.
104 Id. at § 7.2.
105 Id. at § 7.3.
106 See generally, The Energy Act, No. 12 (2006) (Kenya), available
at http://www.erc.go.ke/energy.pdf.
107 See Id. at pt. V.
108 Id.
109 Bowman, supra note 25, at 87, 99.
110 See Rio Declaration on Environment and Development, supra note 28, at § 2.
111 Atkins, supra note 2. This number includes efforts since the 1980s.
112 Id.
113 Gichungi, supra note 79.
114 Id.
115 Kenyan Wind Farm, Africa’s Largest, to Produce Lowest Cost Electricity,
supra note 92.
116 Conference Report, Is the Universal Fund in Africa Creating an Enabling
Environment for ICT Infrastructure Investment in Rural and Perceived
Uneconomic Areas?, CPRsouth Conference (May 2011, Xi’an, China,),
http://uct.academia.edu/EnricoCalandro/Papers/506916/Is_the_Universal_
Access_Fund_in_Africa_Creating_an_Enabling_Environment_for_ICT_
Infrastructure_Investment_in_Rural_and_Perceived_Uneconomic_Areas.
117 James Mbugya, Kenya: The Making of the Huge Lake Turkana Wind
Power Project, THE STAR (Mar. 14, 2012), available at http://allafrica.com/
stories/201203150073.html.
118 Id.
119 Kenyan Wind Farm, Africa’s Largest, to Produce Lowest Cost Electricity,
supra note 92.
120 Id.
121 Kenya’s Nuclear Energy Drive to Boost Electricity Supply, GRASSROOTS.
CO.KE (Mar. 29, 2012), http://www.grassroots.co.ke/business/kenyas-
nuclear-energy-drive-to-boost-electricity-supply.html.
122 See Rio Declaration on Environment and Development, supra note 28,
at principle 17.
123 Kudibor, supra note 94.
124 Gabriel Takyl, INEES, SOLAR PV DEVELOPMENT IN GHANA (Oct. 8, 2010).
125 Id.
126 Id.
127 Id.
128 Darroll, supra note 97.
129 Id.
130 Id.
131 Cabinet Approves Renewable Energy Bill, GHANA.GOV (May 13, 2011),
http://ghana.gov.gh/index.php?option =com_content&view=article&id=5880:
cabinet-approves-renewable-energy-bill&catid=96:top-headlines.
132 Id.
133 Augetto Graig, Namibian ICT State Shocking, NAMIBIAN SUN
(Oct. 21, 2011), available at http://www.namibiansun.com/content/click/
namibian-ict-state-shocking.
134 Dominic Farrell, Is Namibia’s Vision 2030 Just a Pipe Dream?, THINK
AFRICA PRESS (Aug. 3, 2011), available at http://thinkafricapress.com/namibia/
vision-2030-pipe-dream-or-burgeoning-reality-0.
135 Country Strategy Paper and National Indicative Programme for the Period
2008-2013, supra note 52 at 22.
136 See generally Id.
137 See Namibia Vision 2030, supra note 56, at § 3.9.
138 See Id. at § 4.5.
139 Kisting, supra note 98.
140 Nico Smit, Namibia: Ruacana Upgrade on Course, NAMIBIAN, Feb. 16,
2012, available at http://allafrica.com/stories/201202160233.html.
141 Interview with Vestas Vice President of Communications Andrew Hilton,
supra note 59.
142 AFRICA MOBILE OBSERVATORY: DRIVING ECONOMIC AND SOCIAL DEVELOPMENT
THROUGH MOBILE SERVICES, supra note 3, at 39.
143 Kenya: UNIDO Partners with Microsoft on Renewable Energy for Produc-
tive Use, UNIDOBETA (Feb. 14, 2011), available at http://www.youtube.com/
watch?v=THukq6Pj0UM&feature=related.
144 Id.
145 Id.
146 About, ACCESS:ENERGY, http://access-collective.com/about/what-we-do/ (last
visited Apr. 26, 2012).
147 Id.
148 See Schwartz, supra note 64.
149 See Id.
150 Mangesi, supra note 33.
151 Id.
152 Id.
153 Id.
154 Syanne Olson, Hybrid Solar System Comes On-line in Namibia Thanks to
Juwi Solar, PV TECH (Sept. 5, 2011), available at http://www.pv-tech.org/news/
hybrid_solar_system_comes_on_line_in_namibia_thanks_to_juwi_solar.
155 Id.
156 Id. (showing the head of juwi’s off-grid power supply department intent to
transfer the idea behind the Tsumkwe Energy Project to other African projects).
157 Challenges of Solar PV for Remote Electrification in Ghana, supra note 48.
158 See KENYA MINISTRY OF ENERGY, FEED-IN-TARIFFS POLICY ON WIND, BIO-MASS,
AND SMALL HYDRO RESOURCE GENERATED ELECTRICITY (Mar. 2008).
159 Id.
160 Id.
161 Challenges of Solar PV for Remote Electrification in Ghana, supra note 48.
162 Id.
163 Takyl, supra note 124.
164 Id.
165 Challenges of Solar PV for Remote Electrification in Ghana, supra note 48.
166 Africa Consensus Statement to Rio+20, AFRICA REGIONAL PREPARATORY
CONFERENCE FOR THE UNITED NATIONS CONFERENCE ON SUSTAINABLE DEVELOPMENT
(RIO+20) (Oct. 25, 2011), available at http://www.uncsd2012.org/rio20/content/
documents/325Final%20Africa%20Consensus%20Statement%20to%20Rio20.pdf.
167 Id.
168 Id.
169 Atkins, supra note 2.
170 See generally Rio Declaration on Environment and Development, supra
note 28, at §4.
171 UN CONFERENCE ON SUSTAINABLE DEVELOPMENT, ITU INPUT TO THE
COMPILATION DOCUMENT (Nov. 11, 2011), available at http://www.itu.int/osg/
blog/2011/11/15/ITUsSubmissionToTheRio20CompilationDocumentICTsAre
MajorCrosscuttingDriversOfSustainableDevelopment.aspx.
172 Id.
173 See generally UN ECONOMIC & SOCIAL COUNCIL, RIO DE JANEIRO DECLARA-
TION ON ICT FOR DEVELOPMENT (June 2001), available at http://hukum.unsrat.
ac.id/hi/rio_ict.pdf.
174 See generally Id.
175 INVEST INDIA INITIATIVE, INDIA-AFRICA PARTNERSHIP: GAINING CURRENCY
(last visited March 2, 2012), available at http://www.indiaafricainvest.in/index.
php?option=com_content&view=article&id=297&Itemid=457.
176 See Garton Ash, We Friends of Liberal International Order Face a New Global
Disorder, THE GUARDIAN (Sept. 11, 2008), available at http://www.guardian.co.uk/
commentisfree/2008/sep/11/1 (stating that the French first used trente glorieuses
to refer to their 30 years of economic growth after World War II).