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Development Law Magazine - #3 of 2017


In this issue:

  • Complexity in international cooperation; the Codex example.

  • The FAO Committee on Constitutional and Legal Matters.

  • Legislating for sustainable food systems and optimal nutrition.

  • “Threatened” or “Endangered”: Quandary of Legal Terminology.

  • The legislative gap in climate change and agriculture: FAO is taking steps to address it.


Complexity in international cooperation: the Codex example.

The Codex Alimentarius Commission (“Codex”) is a joint body of FAO and WHO mandated to adopt food safety standards to protect the health of consumers and ensure fair practices in the food trade. Codex held its first session in 1963 following adoption of its Statutes by FAO and WHO in the years prior. As of 2017, Codex has 186 member countries and the EU as a member organization. It also has 215 observers of all categories, including international producer and consumer organizations.

The work of Codex takes place in a highly regulated environment, particularly as compared to similar standard setting bodies hosted in FAO. This characteristic is perhaps best illustrated by the sheer volume of the Codex Procedural Manual, which has over 240 pages. To compare, the latest edition of the Basic Texts of FAO – covering its Constitution, the rules of procedure of all its Governing Bodies, its financial regulations, as well as a number of documents addressing specific topics – has fewer (224). One could be forgiven for concluding that Codex is a highly bureaucratic entity, similar to the criticism voiced by some about the United Nations System at large.

The Codex Manual contains its Statutes and Rules of Procedure, but both are rather concisely drafted texts of limited volume. Some information contained in the Manual is merely practical and descriptive, included for the convenience of delegations and the public. Still, a significant portion of the Manual relates directly to the standard setting process. This includes the 8-step procedure for the adoption of standards, and guidance ranging from methods and principles of food risk analysis to a Statement on the Role of Science in Codex, to more detailed guidance for its 8 ‘commodity’ committees (for specific categories of food products), its 10 ‘horizontal committees of general application, e.g. residues, hygiene, labelling or the general rules and principles of Codex, and its 6 regional coordinating committees. In all, the Codex Manual reflects a detailed and intricate regulatory framework covering many, if not most, aspects of the functioning of Codex. All these texts have been proposed, discussed and adopted by the members of Codex under guidance from the parent organizations.

So why is it, then, that Codex has an apparent need for such comprehensive and detailed regulation of almost all aspects of its functioning?

One answer is that food safety and food trade are vast and complex areas. Codex covers a broad range of products, commodities and issues, all of which are highly relevant to food safety and trade. Food safety presents an extensive range of very specific technical challenges. Questions such as food hygiene, maximum residue levels and sampling and testing methods require highly specialized approaches. The same is true for food products traded globally and subject to potential rule-making by Codex.

However, the predominant answer probably lies in the increasing importance of food safety for human health and environmental considerations, as well as the ever-growing need for food and, thus, the volume of food traded globally. The role of food safety regulation has correspondingly increased, as it is imperative that traded food be safe for human consumption.

At the same time, however, a correct balance needs to be struck in order to prevent food safety requirements from becoming hidden trade barriers. As such, the general interest for consensual and evidence-based food regulation at the global level has substantially increased, as a matter of both strategic and economic importance. In legal terms, this development found concrete expression when Codex standards were included as reference standards in the World Trade Organization (WTO) trade agreements, particularly the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). Before the SPS Agreement, Codex standards were voluntary and had the important, but more limited, role of harmonizing food standards and providing a basis for national food legislation for countries facing capacity challenges. These functions are still fulfilled by Codex, and Codex standards are still voluntary in nature. However, their recognition as global reference standards under the WTO trade system means that Codex standards have become an important benchmark in international trade disputes.

These developments explain to a large extent the highly regulated nature of the Codex standard setting process. The Manual may be thick, but it also provides the diverse global community with a dictionary for addressing a highly complex and potentially controversial topic. Without a well-developed rule book, the necessary trust and consensus among Codex members would be much more difficult to achieve, particularly considering the interests that are at stake. The achievements of Codex in adopting a host of concrete food safety standards are actually quite remarkable. If this comes with a heavy procedural manual, then so be it.

The FAO Committee on Constitutional and Legal Matters

The Committee on Constitutional and Legal Matters (CCLM) was established by the FAO Council in 1957. It was established, via amendments to the Constitution and the General Rules of the Organization (GRO), as a subsidiary committee of the FAO Council and was to consist of “not more than seven Members”. Despite its intergovernmental character, the CCLM in effect operates as a group of legal specialists called upon to review legal or institutional issues arising from the activities of the Organization.

In 2009, in the wake of the FAO Reform process, the FAO Conference aligned the status of the CCLM with that of the Finance Committee and Programme Committee, i.e. as a Committee of the FAO Council. This change was considered appropriate in light of its importance and the experience it acquired since its establishment. The GROs were amended so that the seven members of the CCLM (all representatives of Member States) would be elected by the FAO Council. To be eligible, members have to show not only a continued interest in the objectives and activities of the Organization and have participated in Conference or Council Sessions, but also competence and expertise in legal matters. In addition, the Council now elects a Chairperson “on the basis of individual qualifications and [who] should not represent a region or a country”, departing from the previous mechanism of selecting a Chairperson from amongst the seven members. In so doing, the Conference sought to address the fact that the Chairperson was at times constrained to defend the position of the region that she or he had been elected to represent in the CCLM, a situation that was considered a shortcoming in the previous format of the CCLM.

Over the years, the CCLM has been called upon to review a wide range of legal matters, covering every aspect of international law of relevance to international organizations. This has included matters such as amendments to the Basic Texts of the Organization, proposals for new treaties or amendments to existing treaties, issues related to the immunities of the Organization, as well as FAO’s internal financial and administrative rules. The Committee has turned its attention to the area of legal support to Member States for sustainable use of natural resources, food security and nutrition, looking at the institutional and procedural frameworks of relevant FAO technical bodies. It has also looked at governance issues, such as the establishment of new bodies, and the abolition or suspension of dormant ones.

In referring matters to the CCLM, both the Director-General and the Council have taken an expansive view; matters that may not, at first sight, appear to need consideration from a legal perspective have been referred to the CCLM. In this way, the CCLM has made useful contributions to, among other items, the dialogue on the status of observers in FAO meetings, practice regarding acceptance of credentials, voting procedures, criteria for Conference Resolutions, the official languages of FAO, the process of preparation and adoption of the programme of work and budget, and the conditions governing attendance by the general public to FAO meetings, as well as the functions and status of the Independent Chairperson of the Council.

Occasionally, the CCLM has been tasked with reviewing matters involving a significant political dimension or which are of an essentially political nature, particularly in the context of FAO’s institutional framework. In considering these matters, the CCLM has acted as a sort of ‘sounding board’ by undertaking a preliminary review of topics scheduled for consideration by other FAO bodies, or as a ‘filter’ to help frame discussions on politically complex or even sensitive matters. These preliminary, sometimes inconclusive or intractable discussions, have often proven beneficial to the later deliberations of the Organization. In particular, they have assisted the Organization to evolve and respond to emerging needs and priorities. Topics addressed in this way have included, for example, assistance to peoples in liberated areas of colonial territories, the participation of liberation movements in FAO meetings, the distribution of FAO Members by regions, and the provision of technical information to national opposition political parties.

The CCLM’s critical role in the review of proposals for European Union membership of FAO, a matter that attracted much interest amongst international lawyers, the diplomatic community and within the United Nations System between 1988 and 1991, has been widely recognised. Similarly, the CCLM addressed a range of complex issues related to succession of States, in the wake of geopolitical developments in Eastern Europe during the 1990s. In the same vein, between 2009 and 2011, it closely reviewed proposals for the establishment of a Committee on World Food Security, a unique multi-stakeholder institutional platform hosted in FAO reporting to the FAO Conference and the UN General Assembly. The CCLM also played a fundamental role in the systematic review and formulation of institutional proposals arising from the FAO Reform process. More recently, between 2013 and 2016, it has considered the participation of non-State actors (civil society organizations and the private sector) in the work of the Organization, as well as a number of other institutional and legal innovations addressing evolving patterns of engagement in the United Nations System and especially in FAO. However, lack of political consensus among Members has to date precluded the adoption of a revised formal framework governing this latter issue.

From time to time, the CCLM has specifically considered the activities of the Development Law Branch (LEGN) of the Legal Office and its provision of legal support to Member countries in areas within the mandate of FAO. However, while members have found these activities to be of interest, this review has so far been limited, presumably because these activities are inextricably linked with FAO technical areas of work which, in turn, normally fall under the purview of other FAO Governing Bodies. Nevertheless, the Legal Office does not exclude the possibility that the CCLM may devote more attention to this important work in the future. As illustrated above, the CCLM has developed into an essential part of FAO’s institutional architecture. In September 2009, the CCLM celebrated 51 years of activity, producing a commemorative token. At that time, there was also an undertaking to produce a publication describing the wealth of experience of the CCLM, so that its rich legal experience would be made known to scholars and the specialized public, and not remain buried in some old, dusty files. Eight years later, and in its 60th year of activity, this proposal is yet to materialize. Maybe it is now time to translate this 2009 understanding into reality. For more information, please visithttp://www.fao.org/tempref/docrep/fao/meeting/017/k5956e.pdf

Legislating for sustainable food systems and optimal nutrition

Most developing countries still face under-nutrition and micronutrient deficiencies amongst their populations. They are increasingly also confronted with rising levels of obesity in both adults and children, a problem previously more associated with developed countries. ‘Malnutrition’ includes under-nutrition, over-nutrition and micronutrient deficiency. Research shows a clear correlation between poverty and malnutrition in all its forms; it is not unusual to find nutritional deficiencies and overweight or obesity within the same household. This is clearly linked to the diversity and economic accessibility of the food available to consumers, as well as levels of education, awareness and lifestyle.

The ‘global agri-food system’ can be described as unsustainable, or even broken (Danone and World Business Council for Sustainable Development (statement by their representative at a side event of the 44th session of the Committee on World Food Security, October 2017). A recent report by the International Panel of Experts on Sustainable Food Systems (IPES-Food) states that “many of the severest health conditions afflicting populations around the world - from respiratory diseases to a range of cancers and systematic livelihood stresses - are linked to industrial food and farming practices, i.e. chemical-intensive agriculture, concentrated livestock production, the mass production and marketing of ultra-processed foods, and deregulated global supply chains”. The report considers a number of different ways in which modern food systems contribute to ill-health: exposure to soil, air and water pollution; unhealthy conditions of work; unsafe or contaminated foods; unhealthy diets and lack of access to adequate food.

Against this worrying background, nutrition has now been placed high on the global agenda. Following the Second International Conference on Nutrition (ICN2) held in 2014, the UN has declared a Decade of Action for Nutrition 2016 – 2026. The importance of nutrition and food systems is reflected in the 2030 Agenda, as highlighted by the following Sustainable Development Goals (SDG):

  • Goal 2: End hunger, achieve food security and improved nutrition and promote sustainable agriculture; 

  • Goal 6: Ensure access to water and sanitation for all; 

  • Goal 12: Ensure sustainable consumption and production patterns.

Goals related to health, gender equality, education, climate change and partnerships also touch upon nutrition.

FAO has undertaken substantial legal research on food security, agriculture and sustainable natural research management. A new area of special focus could be food systems and how legislation could improve sustainability and nutrition outcomes. Practical, long-term benefits could also flow from research on other factors influencing nutrition, such as access to water and sanitation.

While legislation may not always be the immediate reply when considering how to effectively address malnutrition, it could be a formidable instrument in ensuring that efforts in this context are sustainable and appropriate. To this end, there is a need to critically examine the role of legislation in bringing production methods, processing, retailing and consumption of food towards more sustainable and healthy systems. A number of initiatives aimed at improved nutrition for children and for adults provide valuable lessons and should be analysed with regard to their effectiveness and efficiency. There is also a need to delve into some of the legal challenges that have been mounted against such efforts, for instance, freedom-of-speech arguments for allowing advertising and marketing of unhealthy food, freedom-of-choice arguments for allowing unhealthy food to be available on the market, and freedom-of-trade arguments against initiatives to promote local foods.

Different challenges call for different legislative responses. If the main underlying problem of malnutrition in a country is lack of economic access to a diverse diet, legal reform in the sphere of nutrition-sensitive social protection may be an appropriate response. If, on the other hand, the problem relates to availability of affordable and nutritious food options, interventions in food composition and simplified labelling programmes may be the answer. If malnutrition is caused mainly by pathogens, legal reforms could aim to strengthen affordable access to clean drinking water, adequate sanitation and food safety.

As the content of the SDGs demonstrate, sustainable development cannot be achieved in the absence of effective responses to malnutrition. Given the multiple and varied factors that cause malnutrition, many countries could benefit from guidance that includes overviews of legislative options and examples of emerging good practices. Indeed, this guidance may be an essential tool for countries seeking to achieve the objectives of the SDGs and of the Decade of Action for Nutrition. FAO, including LEGN, is well-placed to develop guidance to support countries to identify their legislative responses to this urgent global challenge.

“Threatened” or “Endangered”: Quandary of Legal Terminology

Prompted by a query from a technical colleague on which of these two similar terms FAO ought to choose when defining its policy objectives, the Development Law Branch (LEGN) has looked into the use and definitions of these two terms in international legal instruments and in national legislation.

A series of international instruments on wildlife conservation make use of these terms.

To begin with, the Convention on International Trade in Endangered Species of Wild Fauna and Flora ( CITES), regulates the international trade of certain species of wild fauna and flora. The Convention identifies three categories of species: those that are threatened with extinction (Appendix I); those that may become so unless trade is strictly regulated and controlled (Appendix II); and those that individual Parties identify as being subject to regulation within their own jurisdiction for the purpose of preventing or restricting exploitation (Appendix III). The Convention regulates trade in these species through a system of permits and certificates commensurate with the level of threat of extinction. The most restrictive trade measures are imposed on Appendix I species that are “threatened with extinction”.

The Convention on the Conservation of Migratory Species of Wild Animals ( CMS), echoes the CITES distinctions in its own classification, with CMS Appendix I species being afforded the highest level of protection. Interestingly, however, the CMS defines the term“endangered” as being the point when “the migratory species is in danger of extinction throughout all or a significant portion of its range” (Article 2).

On the other hand, the Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean, under the Convention for the Protection of the Mediterranean Sea against Pollution (the Barcelona Convention), appears to be the only international instrument that expressly includes both “threatened” and “endangered” in its main text. It characterizes threatened species as those likely to become extinct within the forseeable future, and defines endangered species as those in danger of extinction. The Protocol distinguishes the two terms based on the level of threat, with endangered species facing greater and imminent peril of becoming extinct.

Moving away from species-based instruments, where the primary objective is the prevention of depletion and extinction of species of a particular value, we find that conservation instruments, which promote biodiversity and ecosystems as a whole, frequently rely on the term “threatened”. The Convention on Biological Diversity ( CBD) and its implementing instruments, including the Aichi Targets, use the term “threatened”albeit without providing any clear definition thereof. The World Heritage Convention (WHC) considers the habitats of “threatened species” as eligible for listing as natural heritage sites.

This multiplicity of international instruments reflects the gradual shift in the approach taken at the international level to conserve wildlife, an effort that began with the area-based focus of WHC in 1972, and then the species-based focus of CITES in 1973, followed by CMS in 1976. Each of these treaties furthers a specific objective; that of the protection of a list of species whose level of exploitation constitutes a threat to their survival.

In 1992, the CBD signalled a shift towards a more holistic approach to natural resource management that also encompasses wildlife conservation. The CBD acknowledges the linkages between biological diversity and life-sustaining systems with the range of genetic, social, economic, scientific, educational, cultural, recreational and aesthetic benefits that they provide. The International Union for Conservation of Nature (IUCN), has taken on the role, now acknowledged, of advisory body to these conventions and thus has contributed to bridge all these instruments. Most notably, the IUCN maintains a database of threatened species ( IUCN Red List) which is widely acknowledged as the most comprehensive inventory of the conservation status of biological species. The Red List divides the “threatened categories” of species into three: those that are vulnerable, endangered, or critically endangered. The word “threatened” is, in this context, used as an umbrella term to communicate an underlying concern, while specific criteria are relied upon to better assess the level of threat to a species.

Not surprisingly, this array of definitions at the international level translates into a mosaic of different approaches at the national level. While earlier legislation such as the United States Endangered Species Act (1973), the Marshall Islands’ Endangered Species Act(1975), and Palau’s Endangered Species Act (1975) mirror the definition of “endangered” in CITES and CMS, other countries have adopted the layered definitions of the IUCN Red List. This is the case for New Zealand’s Trade in Endangered Species Act (1989), Finland’s Nature Conservation Act (1996), Australia’s Environment Protection and Biodiversity Conservation Act (1999) and South Africa’s National Environmental Management Biodiversity Act (2004). There are some more recent exceptions to this trend, however. For example, Kenya’s Wildlife Conservation and Management Act (2013) takes a more restrictive approach and defines endangered species as “any wildlife specified in the Fourth Schedule of this Act or declared as such by any other written law or any wildlife specified in Appendices of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)”.

One explanation for this variety of approaches in national legislation is that each country has its own appreciation of the distribution of species and the level of threat they are facing. In this regard, the incorporation into national law of the above-mentioned international treaties does not per se require the integration of all the concepts found in them. In fact, were this to be required, it would likely lead to an array of overlapping and conflicting definitions across natural resource management legislation at the national level. Countries, nevertheless, are required to implement the procedural requirements listed in each instrument that they ratify with the aim of achieving its goals and respecting its spirit.

Therefore, as long as the national legal framework incorporates the processes required by international commitments – including those in relation to the listing of species – countries should have the flexibility to formulate definitions that best match their own national priorities and interests.

Based on its review, LEGN has concluded that whilst legally-speaking, the two terms can be defined and/or used differently in international and national legal texts, what matters most is that the process of ascribing conservation status to any given species, as well as the related conservation measures for that specie, be in line with or go beyond international commitments. Notwithstanding the diversity in meaning, the utilization of both terms with distinctive clarifications may be the recommended approach for any given policy or legal document.

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The legislative gap in climate change and agriculture: FAO is taking steps to address it.

Climate change has been recognized as a common concern of humankind and, more specifically, as an urgent and potentially irreversible threat to human societies and the planet1. FAO’s State of Food and Agriculture report (SOFA 2016) emphasized that agriculture2 is both one of the key sectors contributing to climate change and, conversely, one of the sectors likely to be strongly impacted by it.3

The Paris Agreement (PA), which entered into force on 4 November 2016, reinforced international law on climate change and set out the framework for international climate action post 2020. Notably, the Preamble to the PA recognized “the fundamental priority of safeguarding food security and ending hunger, and the particular vulnerabilities of food production systems to the adverse impacts of climate change”. Further, article 2 specifically refers to “(i)ncreasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production” as one of the goals of the PA.

Law and policy need to be part of the tools to support implementation of climate goals at the national level, as is called for by the following:

  • Policy coherence is paramount, in particular with the implementation of the SDGs: SDG13 sets climate related targets, while recognizing the UNFCCC as the primary forum to negotiate and implement climate action. Among such targets, SDG 13.2 specifically includes the goal of integrating climate change measures into national policies, strategies and planning;

  • The PA creates new legal obligations in addition to the existing ones within the climate change regime. These include, for instance, the need to produce and communicate the Nationally Determined Contributions (NDCs) every five years, which has legal and policy underpinnings at national level;

  • Research shows that 156 countries have acknowledged the need for furtherimprovements in legal and institutional infrastructure to achieve their NDC goals.5

Agriculture features prominently in the NDCs: 89% percent of all countries include agriculture and/or land use, land use change and forestry (LULUCF) as a sector in their mitigation and/or adaptation contributions.6 However, a recent study on ‘climate change law’ indicated that “there are more than twice as many energy-related acts as agriculture-related acts, even though the two make up similar amounts of global greenhouse gas emissions”, illustrating that only 181 legislative and executive acts reviewed were found to address emissions from agriculture and LULUCF.7 This shows a legislative gap on climate issues in the agriculture sectors at national level.

International organizations such as FAO have been mandated by the PA8 to provide support in the areas within their competences. FAO’s 2017 Climate Change Strategy responds to this call: Outcome 1 aims to enhance capacities of Member States on climate change through, among other means, developing new codes of practice, guidelines, standards and other documents that support countries in addressing climate change more effectively; and, Outcome 2 focuses on improving integration of food security and nutrition, agriculture, forestry and fisheries considerations within the international agenda on climate change, including through strategic international partnerships with key stakeholders.

As a response to the calls for action and gaps referred to above, the Development Law Branch (LEGN) has embarked on certain initiatives to strengthen support to the work of the organization and to Member States. The underlying objective of LEGN’s initiatives is to develop new strategies in the provision of technical legal assistance, aimed at supporting countries to promote sustainable development in the context of food security and agriculture, to make progress towards the achievement of the SDGs and to meet their obligations under the PA (including implementation of the NDCs).

LEGN’s initiatives in 2017 have been focused on the following :

  • In April, LEGN organized a capacity development workshop on climate change and the law, gathering colleagues from the Legal Office and other FAO technical units. The event provided a forum for a stock-taking exercise on the understanding of the legal and policy implications of the climate change work undertaken by the different technical units, as well as for the identification of gaps and challenges, with a view to identifying priorities for further support.

  • Further to the April workshop, LEGN is developing a Legislative Study aimed at shedding light on the intersection between climate and agriculture goals in national legislation, analysing both ‘framework climate laws’, a recent trend in legislation in this area, as well as specific sectoral laws. Preliminary findings of the research undertaken show that framework legislation in the countries analysed feature significant aspects such as introduction of broad climate goals across sectors, as well as the creation of multi-level and multi-sectoral coordination bodies to lead climate action. However, the research also indicates that legislation addressing specific climate goals in agriculture sector legislation, or guidance on how to promote more integration of these policy issues, is still lacking for the most part.9 LEGN will continue this research with a view to formulating recommendations to support country efforts in implementing climate goals and developing legislation in these areas.

  • LEGN is also engaged in a collaboration project with UN Environment, the UNFCCC Secretariat and the Commonwealth Secretariat to develop a climate change legal toolkit, which is envisioned as an interactive instrument to guide countries in undertaking assessments of national legislation vis-à-vis climate goals. Responding to the Climate Strategy Outcome 2, LEGN’s contribution focuses on supporting the integration of agriculture issues into the features of the toolkit.

These efforts will continue into 2018, with a view to developing concrete guidance materials to support efforts in legislation to address climate change in agriculture sectors. Notably, 2018 will be a relevant milestone for global action on climate change, as the ‘facilitative dialogue’ among Parties to the PA will be convened to take stock of the collective efforts towards the long-term goal referred to in Article 4, paragraph 1,10 and to inform the preparation of the next iteration of NDCs.

1. Preamble to the Paris Agreement; similar statements had been previously made, including by the former UN Secretary General Ban Ki Moon who declared climate change as ‘the defining challenge of our age’ at the opening of the UN Climate Summit in 2014 https://www.un.org/sg/en/content/sg/statement/2014-09-23/secretary-generals-opening-remarks-2014-climate-summit-delivered
2. Referenced here according to FAO’s broad conceptualization including crops, livestock, fisheries and forestry 
3. FAO, The State of Food and Agriculture: climate change, agriculture and food security, 2016
4. http://www.un.org/sustainabledevelopment/climate-change-2/
5. CLGI, 156 Countries stress the importance of legal and institutional reforms and capacity building, http://www.climatelawgovernance.org/knowledgecenter/research-announcement-156-countries-stress-the-importance-of-legal-and-institutional-reforms-in-indcs/
6. FAO, The agriculture sectors in the Intended Nationally Determined Contributions: Analysis, Environment and Natural Resources Management Working Paper No. 62. Rome, 2016 
7. Global Legislation Study, A Summary of Key Trends, Grantham Research Institute on Climate Change and the Environment, 2016. 
8. Adopting Decision, FCCC/CP/2015/L9, para. 15; also PA art 7(8), on adaptation specifically. 
9. Including forestry, fisheries, food security and nutrition, and land use. 
10. Article 4, 1. “In order to achieve the long-term temperature goal set out in Article 2, Parties aim to reach global peaking of greenhouse gas emissions as soon as possible, recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century, on the basis of equity, and in the context of sustainable development and efforts to eradicate poverty.”