three emerging legal and strategic shifts to...
TRANSCRIPT
Three Emerging Legal and
Strategic Shifts to Sustainability
Ira Feldman president & senior counsel
greentrack strategies
Washington College of Law
International Business and Human Rights
17 November 2010
© 2010
6 Guidance on social responsibility core subjects
1 - organizational governance. Overview, Principles and considerations, Decision-making processes and structures
2 - Human rights 1 Due diligence, 2 Human rights risk situations, 3 Avoidance of complicity, 4 Resolving grievances, 5 Discrimination and vulnerable groups, 6 Civil and political rights, 7 Economic, social and cultural rights, 8 Fundamental principles and rights at work
3 - Labour practices 1 Employment and employment relationships, 2 Conditions of work and social protection, 3 Social dialogue, 4 Health and safety at work, 5 Human development and training in the workplace
4 - The environment 1 Prevention of pollution, 2 Sustainable resource use, 3 Climate change mitigation and adaptation, 4 Protection of the environment and restoration of natural habitats
5 - Fair operating practices 1 Anti–corruption, 2 Responsible political involvement , 3 Fair competition, 4 Promoting social responsibility in the sphere of influence, 5 Respect for property rights
6 - Consumer issues 1 Fair marketing, factual and unbiased information and fair contractual practices, 2 Protecting consumers’ health and safety , 3 Sustainable consumption , 4 Consumer service, support, and complaint and dispute resolution, 5 Consumer data protection and privacy, 6 Access to essential services, 7 Education and awareness
7 - Community involvement and development 1 Community involvement, 2 Education and culture , 3 Employment creation and skills development, 4 Technology development and access , 5 Wealth and income creation, 6 Health, 7 Social investment
www.brodhag.org
A broader perspective…
“BIG PICTURE” POLICY
<=>
LAW AND REGULATION
<=>
MANAGEMENT PRACTICES & VOLUNTARY STANDARDS
Visualizing Sustainability
© Ira Feldman 2001
Drivers for Strategic Environmental Management and Sustainable Business
Practices
• Competitiveness
• Internal Efficiency
• Regulatory Advantage
• Stakeholder Engagement
Sustainability Framework
Economic Growth
Environmental
Protection
Social
Progress
Eco-Efficiency Social
Responsibility
Quality of Life
Sustainability
Sustainability thinking
“Hallmarks” of sustainability activities include…
• Future orientation
• Economic and environmental “win-win”
• Multi-stakeholder engagement
• Systems approach
• Interdisciplinary, cross-functional teams
Soft Law
• What is it? No consensus. Is it law at all?
• Relationship to “hard law” -- precede, pave the way, test bed; dichotomy, continuum, other?
• Private law; civil regulation (Vogel); self-regulation; voluntary regulation; co-regulation
• Formal liability v. competitive advantage, reputational risk, and financial strength
• Sustainable business practices and CSR; government action and regulation have not kept pace with globalization
ISO 26000 • As applied to CSR, a response to stakeholder
expectations of environmental and social policies and practices
• Becoming norms in their own right -- a “social license to operate”
• ISO 26000 is an international multi-stakeholder process to develop guidance with respect to social responsibility principles and best practices
• ISO 26000 guidance may help to align the vast array of existing standards and protocols (Global Compact, ILO, Declaration of Human Rights, AA1000, SA8000 and the Global Reporting Initiative)
international norms of behaviour
• L’ISO 26000 introduces a new notion « international norms of behaviour » SR objectives are not fixed by stakeholder but are inspired by international texts.
• International norms of behaviour : expectations of socially responsible organizational behaviour derived from customary international law, generally accepted principles of international law, or intergovernmental agreements that are universally or nearly universally recognized
• NOTE 1 Intergovernmental agreements include treaties and conventions
• NOTE 2 Although these expectations derived from customary international law, generally accepted principles of international law or intergovernmental agreements are directed primarily at states, they express goals and principles to which all organizations can aspire. International norms of behaviour evolve over time.
Definition CD1, december 2008
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Emerging Architecture for Sustainability
Overarching aspirational and normative framework UN Global Compact, OECD guidelines for MNE, ILO
Generally accepted accounting principles for sustainability (GAAPS) – standards and tools
GRI (G3) framework, IAASB , AA1000 series
Marketplaces CO2 Trading Scheme, Green House Gas register,
Dow Jones Sustainability Index
Sector specific performance standards Social Accountability-8000, Forest Stewardship Council
Regulatory and legal framework French Article 116/Law 2001-420, Sarbanes-Oxley act
Management systems Occupational Health & Safety zone (OHS AS) 18000, Eco-
management Audit Scheme (EMAS), ISO 14000/9000, etc.
Framework Convention Text
• In the Framework Convention text there are at least ten provisions that refer to adaptation.
• Most notably, Articles 4.1 and 4.4 relate to cooperation in preparing for adaptation to impacts of climate change and assistance to the most vulnerable in meeting the costs of adaptation.
• Further, Articles 4.8 and 4.9 urge consideration of actions to meet the needs of developing countries, relating to funding, insurance and transfer of technology, and transfer funds, as well as the special circumstances of both small island nations and those economies highly dependent on fossil fuels.
http://unfccc.int/adaptation/adverse_effects_and_response_measures
_art 48/items/2535.php.
Adaptation Fund
• At the Bali meeting in 2007, the Bali Roadmap provided for the launch of the Adaptation Fund, which was established to finance concrete adaptation projects and programs in developing country Parties to the Kyoto Protocol that are particularly vulnerable to the adverse effects of climate change.
• The Adaptation Fund is financed from a share of the proceeds on Clean Development Mechanism project activities amounting to 2% of the certified emission reductions (CERs) issued for a CDM project activity.
http://unfccc.int/cooperation_and_support/financial_mechanism/adaptation_fund/ items/3659.php.
Nairobi Work Programme
• In the Nairobi Work Programme under SBSTA, the goals are i) to improve understanding and assessment of impacts, vulnerability and adaptation to climate change, and ii) to make decisions on practical adaptation actions and measures within a scientific, technical and socioeconomic framework.
• The Nairobi Work Programme is not limited to Parties; it is a “big tent” initiative that brings together NGOs, intergovernmental organizations, the private sector, and other stakeholders.
• Workshops, focal points, private sector initiative… http://unfccc.int/adaptation/nairobi_work_programme/items/3633.ph
p
Adaptation in Copenhagen
The message of the Copenhagen Accord as it relates to adaptation -- to roughly paraphrase – is: – that adaptation and the potential impact of response
measures is a challenge faced by all countries; – that enhanced action and international cooperation and
adaptation urgently required in developing countries; and,
– the developed countries shall provide adequate, predictable, and sustainable financial resources, technology, and capacity building to support adaptation actions.
unfccc.int/resource/docs/2009/cop15/eng/l07.pdf
Climate Change Adaptation
• Utilizing known technologies -> sea defenses
• Behavioral modifications -> altered food and recreational choices
• Managerial modifications -> altered farming practices
• Policy development -> planning regulations
Climate Change Adaptation
Regulating Benefits obtained from control
of natural processes by
ecosystems
Cultural Nonmaterial benefits obtained
from ecosystems
Provisioning Goods or products obtained
from ecosystems
Ecosystem services
Ecosystem Services
• Decision-making and Management
– The framework used – particularly the focus on ecosystem services – helps in incorporating the environmental dimension into sustainable development policy and planning
– Provides planning and management tools
– Serves as a benchmark
– Provides foresight concerning consequences of decisions affecting ecosystems
– Identifies response options
– Identifies priorities
• Assessment, Capacity, and Research
– Provides a framework and tools for assessment
– Helps build capacity
– Guides future research
5. Develop
strategies
Steps in the Corporate Ecosystem Services Review
4. Identify business
risks and
opportunities
3. Analyze trends
in priority
services
2. Identify priority
ecosystem
services
1. Select the
scope
Ecosystem Services
Likely Directions
• Increased understanding of and reliance on ecosystem management, adaptive management, and complex systems models
• Increased appreciation of values will lead to evolution of common law property rights
• Increased reliance on transition payments and market incentives
• Increased reliance on “nested” sets of governance units
• Increased transparency and accountability of government and private-sector performance on decisions that have an impact on ecosystems, including through greater involvement of concerned stakeholders in decision-making
Conclusion
• Transition to Sustainability
• Tools, laws, institutions
• Challenges, barriers to integration
• Trends/drivers, sources/templates
• Effect on legal practice
• Not yet a roadmap -- can we connect the dots?
Transition to Sustainability… • “Business & Industry” in Agenda for a Sustainable America (2009)
• “Last to the Party: The Hill Takes Up Climate Change Adaptation” (2008) with Sarah Jensen
• “Dialogue: Soft Law and Corporate Social Responsibility” (2008) with Kathy Robb and Usha Wright
• “Preparing for the Day After Tomorrow: Frameworks for Climate Change Adaptation” (2007) with Josh Kahan
• “Ecosystem Services as a Framework for Law and Policy” (2007) with Rich Blaustein
• “The Stakeholder Convergence: Enhanced Public Participation and Sustainable Business Practices” (2003)
Contact
Ira Feldman
president & senior counsel
greentrack strategies
202-669-1858
SKYPE: irafeldman