The impact of Sustainable Development in a Political, Legal and Moral Context

Introduction

Lilian Nyamwaro

The concept of Sustainable Development has risen gradually over the last forty years. There has been a growing concern over the negative impact of human activity on the environment. The deteriorating condition of the environment has lead to a widespread public awareness on the need to identify global solutions to the environmental issues that we face today. This paper seeks to examine the impact of the principle of sustainable development in a political, legal and moral context. It also aims to look at the implementation strategies that have been developed in this respect and its relation to Customary International Law.

Evolution of Sustainable Development

The Industrial Revolution saw a rapid transformation on the landscape of the world. The extraction of minerals from the earth and building of large factories saw the transformation of small towns into industrialised cities which catalysed a rapid growth in the population of the world. It soon became clear in the late fifties that the new technologies and economic growth were also having a negative impact on the environment. There was a need to sensitise these issues through an environmental movement.

During the late sixties, a number of publications inspired interest in the environmental movement, one of which was Rachel Carson’s Silent Spring (1962) and Garret Hardin’s The Tragedy of the Commons (1968). These publications were followed by a number of events shedding light on the issue of sustainable development. Its first major recognition emerged at the 1972 UN conference on the Human Environment in Stockholm where issues on environmental growth, underdevelopment and poverty were discussed. The main focus of this conference was to give guidance on how to mutually reinforce economic development with environmental protection.

Its main breakthrough into the international scene came through a UN sponsored Brundtland Commission, which released Our Common Future,[1] a report that captured widespread concern about the environment and poverty in many parts of the world. Its main aim was to encourage economic development that could be sustained without depleting or harming the environment. It stated that;

“Major, unintended changes are occurring in the atmosphere, in soils, in waters, among plants and animals. Nature is bountiful but it is also fragile and finely balanced. There are thresholds that cannot be crossed without endangering the basic integrity of the system. Today we are close to many of those thresholds.”[2]

This statement led to the popularisation of sustainable development and the composition of a classic definition.

Definition of Sustainable Development

While there are very many different definition of the term, the most notable is found in the Brundtland Report. It defines Sustainable Development as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’.[3]Although it is sometimes referred to as an emerging (and less often as an established) principle of international law[4], the better position appears to be that it is a policy objective, a commonly used term that informs and influences the development and interpretation of international law.[5] According to the Brundtland Report this definition contains two key concepts: first, the concept of ‘needs’, in particular the essential needs of the world’s poor to which overriding priority should be given, and secondly, the idea of limitations imposed, by the state of technology and social organisation on, the environment’s ability to meet present and future needs.[6]

Birnie[7] and Boyle[8] argue that although this definition focuses on one of the most important components of sustainable development, which is the centrality of intergenerational – equity, they find it inadequate, incomplete and hold that this definition needs further elaboration.[9]

The Johannesburg Declaration on Sustainable Development provides for an alternative in its reference to the interdependent and mutually reinforcing pillars of sustainable development – economic development, social development and environmental protection.[10] In spite of their difference, they both highlight the fundamental components underpinning sustainable development.

Sustainable development in a Legal context

Sustainable Development law is incorporated in a system of norms and rules that according to ruling doctrines cannot be considered to be true international law.[11] Many scholars disagree with this view and argue that sustainable development has acquired a place in the international law lexicon and focus on how to apply it in practice.[12] Whilst that remains debatable, the Rio Declaration on Environment and Development[13] adopted at the 1992 Rio Conference takes the concept one step further by embodying it in a document adopted by consensus though not binding.[14] The Rio Declaration does not contain a definition of sustainable development but embodies many (in its 27 principles) sustainable development features, including some of the key environmental principles that underline environmental law[15]as well as the instruments to be deployed to achieve sustainable development. These are some of the principles that have enormous relevance to the concept of sustainable development.

Principle four states that in order to achieve sustainable development, environmental protection shall constitute an ‘integral part of the development process and cannot be considered in isolation from it.’[16] Principle fifteen highlights a precautionary principle[17] whereby it asks states to take reasonable measures to prevent environmental degradation, principle sixteen lays emphasis on the polluters pay principle[18] and principle seventeen highlights the importance environmental assessment.[19] Other relevant legal doctrines that were produced from this conference include the United Nations framework for Climate Change, The United Nations Convention on Biological Diversity and Agenda 21 which provide details on the implementation of sustainable development under the supervision of the United Nations Commission on Sustainable Development. Some authors have agreed that the reference to the concept of sustainable development in treaties is evidence of the concept’s translation as a legal principle into the more binding status of customary law.[20] Sands states that,

‘There can be little doubt that the concept of ‘sustainable development’ has entered the corpus of international customary law, requiring different streams of international law to be treated in an integrated manner… by invoking the concept of sustainable development.’[21] Other areas where sustainable development is gaining momentum is in national courts where its principles are being enforced. In the Minor Oposa case,[22] the Supreme Court of the Philippine addresses the issue of inter-generational equity in the context of state management of public forest land. This clearly shows that some of the components of sustainable development are being progressed through national courts.

Sustainable development as a Legal principle in Customary International Law

Some of the well known primary sources of international law are treaty bodies and conventions as stated under Article 38 of the ICJ statutes. There are sufficient treaties and conventions that encompass the principle of sustainable development as stated earlier in this paper; most notably the Rio Declaration. There is a misconception from some legal scholars that sustainable development is a concept that is too vague and too ambiguous in meaning for it to have a normative status[23] because it has been developed from soft law. Lowe[24] argues that the concept of sustainable development lacks normative content, which is incompatible with it having a ‘norm-creating character’ and precludes it becoming a primary rule of law.[25]

At the initial stages of the development of Customary International Law, all its principles were soft law based; therefore its relevance to the development of sustainable development should not be ignored. Through state practice and opinio juris, these principles gradually crystallised into concrete law. The same rule applies to sustainable development as an emerging principle of Customary International Law. Its normative status can be claimed in the judicial reasoning of the courts where if often applied or referred to, it can easily lead to a primary source of Customary International Law under article 38(1)(d) of the ICJ statutes. Although this principle has not been fully established, it will inevitably influence further development of the law, as judicial decisions under Article 38(1) (d) of the ICJ Statute are regarded as having persuasive authority as statements of the law. [26]

Sustainable development in a Political context

The frustrations and resistance to the concept of sustainable development has stemmed from its ambiguity in definition. This has sparked enormous political debates over its relevance bearing in mind its variety in meaning. John Dryzek[27] poses a very important question in this respect. ‘Does the variety of meanings mean we should dismiss sustainable development as a mere slogan, an empty vessel that can be filled with whatever one likes?[28] This tends to be the attitude taken from a policy – technocratic standpoint. They argue that the term cannot be adopted as a policy objective unless its meaning is clarified and agreed upon. Michael Jacobs[29] presents this form of resistance as an ‘ultra – green’ resistance. He says that this form of opposition is due to the fact that the fuzziness of its meaning presents a smokescreen put up by business and development interest to obscure the conflict between ecological integrity and economic growth.[30]It is often the case that important concepts are challenged politically. Sustainable development is emerging as the centre piece when it comes to environmental affairs globally. Even though it lacks a definite definition, its meaning and purpose is understood by most environmentalists. John Dryzek argues that the concept of sustainable development is like the concept of democracy, part of what makes it interesting is this very contestation over its essence.[31]

The second point relates to one of the three pillars from the Rio Declaration. How does one balance between economic development and environmental protection? The aspiration of inter-generational equity is conceptually difficult. The implication is that something has to be sustained for future generations; quite what is of course the difficult question.[32]Deciding what should be sustained and determining whether development is sustainable in any particular case[33] are issues that economists debate heavily due to the fact that everything fundamental to them comes down to capital and monetary value. Economists argue that sustainable development will hinder their returns on natural capital. David Pearce[34] in his blue print for sustainable economy paper presents an argument from a weak sustainable economist point of view. He contends that as long as the natural capital that is being depleted is replaced with even more valuable physical and human capital; then the value of the remaining natural capital will increase over time, therefore maintaining and enhancing sufficient sustainable development.[35]

In contrast, proponents of the strong sustainability point of view argues that physical and human capital cannot substitute for all the environmental resources comprising the natural capital, as we cannot give any guarantees that we can adequately compensate future generations for irreversible losses in essential natural capital today.[36] It is clear that a lot of economic policies tend to ignore environmental issues, particularly those whose repercussions are yet to come. It is with this respect that a lot of political debates stem from. Scholars such as Herman E Daly[37] advocate strongly that one cannot isolate economic value from the elements of the environment as they are co-related. He contends that these loud economic concerns hide the reality of capturing environmental value in any meaningful way. If the concept of sustainable development is at the heart of every political debate, for whatever reasons, its relevance nevertheless cannot be ignored as it brings to light very important issues that if projected from a political stance, will have positive effects towards advancing the concept of Sustainable development further.

Sustainable Development in a Moral Context

The link between environmental protection and poverty eradication is based on the fact the majority of the poor population are more prone to suffer from environmental degradation, being more likely to live on environmentally degraded areas and to rely directly on environmental resources for food, shelter and warmth.[38] This may lead the extremely poor to degrade the environment even more in search of greener pastures for survival.

Within the sustainable development context, environmental protection does not complement economic and social development; it competes against it. The important question to ask here is how does one inter-relate development and environmental protection? The Johannesburg Conference in 2002 was aimed at discussing implementation strategies of sustainable development agreed upon at Rio. While the industrial countries sought to place global environmental issues on the agenda, perceived as a consequence of affluence, the developing countries sought to emphasize local issues, perceived as a consequence of poverty.[39]

To inter-relate these two, it is important to reflect on the consensus developed at Rio. Sustainable development as a concept, acquired a rhetorical power and promise that essentially has something for everyone. Developing countries could see it encompass their demand for intra-generational equity, and the industrial countries could see it include their desire to control trans-boundary pollution and promote an environmental ethic.[40] Whilst it is important to realise the relevance of the Johannesburg conference that annexed economic and social development in poor and developing countries, we cannot ignore the fact that poverty itself is an evil that can contribute towards the degradation of the environment. There is a very delicate balance that has been established by the Rio declaration between the needs and interests of the developing countries and those of the industrial countries. Whilst their objectives are different, they all strive towards a common responsibility on the concept of sustainable development; the right to social and economic development as well as environmental protection.

Analysis

The principle of Sustainable development, though recently established, is widely recognised in the international community. Even though it lacks a legally acceptable definition, it echoes a message of change and reform amongst all nations, a message that has been recognised by many nations. As one author puts it, the principles of sustainable development perform a “guidance function”, and “it is by invoking these principles in domestic and international legal regimes and decision-making processes that law could contribute to the realization of sustainable development.”[41] Sustainable development however does face criticism.

Michael Jacobs argues that there is a form of resistance that comes from those we might call ‘cultural critics’, mostly within the academic field.[42] The argument here is that sustainable development is an inappropriate response to the environment problems. Despite its good intention, its inability to understand or reflect recent cultural changes in industrial societies leaves its programme liable to failure.[43] I’m inclined to completely disagree with this statement. The cultural changes within the industrial societies are centred on growth and development. Sustainable development as a principle of environmental law focuses mostly on reconciling the traditional approach to environmental issues; that they impose a limit to growth. Sustainable development is of the idea that economic growth and environmental protection are compatible and can complement one another.

Another criticism that the concept of sustainable development faces is the idea that it is soft law and lacks any normative or legal status. Sustainable development encompasses various principles. In his separate opinion, judge Weeramantry refers to the components of sustainable development as,

“The components of the principle come from well-established areas of international

Law such as Human Rights, State Responsibility, Environmental Law, Economic and Industrial Law, Equity, — to mention a few.”[44]

He goes on to add that ‘such far reaching principles as the principle of intergenerational rights, and the principle that development and environmental conservation must go hand in hand.’[45] This clearly shows that the principles of sustainable development, though not binding are reflected on binding legal doctrines; hence giving them a more legally persuasive stance.

The political and moral arguments on sustainable development go hand in hand. On one hand we have the idea of economic development and on the other hand we have the idea of environmental protection. As stated earlier in this paper, these two, based on assertion can be achieved together through maximising other forms of resources, as well as replenishing and conserving those under the serious threat of irreversible damage.

Conclusion

There are numerous arguments that have been presented over the status of the concept of sustainable development. Some have argued that there is little or no legal content to it, other have argued that it is soft law therefore lacks any authority but for some, sustainable development encompass some legally binding rules that are reflected on customary international law. Despite all these differences in opinion, one cannot deny its popularity in the agenda of the international community today within the context of environmental law. Many nations around the world are under enormous pressure to discuss this concept of sustainable development as it is starting to affect some areas of law such as trade. It might seen as though the concept of sustainable development is a mere aspiration, regardless of that assumption, my view is that sustainable development plays an integral part in today’s environmental law, highlighting some key issues that have to be addressed. It aims at conserving the environment for the future generations whilst promoting economic development through different means.

[1]Report of the World Commission on Environment and Development (the Brundtland Report), (1987), Our Common Future, Oxford University Press

[2]The Brundtland Report, (1987), Oxford University Press, Para9, found at http://www.un-documents.net/oct-01.htm#ll

[3](1987) Report of the World Commission on Environment and Development (the Brundtland Report), Our Common Future, Oxford University Press p43

[4][1998] 37 ILM 162 The separate opinion of Justice Weeramantry in the Case Concerning the Gabcikovo-Nagymaros Project (Hungaryv. Slovakia) at 204.

[5]Patricia Birnie and Alan Boyle, (2002), International Law and the Environment, 2nd ed., Oxford University Press, pp95-96

[6]P. Sands, (2003), Principles of International Environmental Law p253

[7]Patricia Birnie and Alan Boyle, (2002), International Law and the Environment, 2nd ed., Oxford University Press

[8]Ibid

[9]Ibid, p89

[10]J Holder and M Lee (2007) Environmental Protection, Law and Policy, Text and Materials,2nd Edition Revised, Cambridge University Press publication, p217

[11]See N.J. Schrijver & E. Hey, (2003) Volkenrecht en Duurzame Ontwikkeling, Preadviezen, Mededelingen van de Nederlandse Vereniging voor Internationaal Recht , p150

[12]A.B.M. Marong, (2003) From Rioto Johannesburg: Reflections on the Role of International Legal Norms in

Sustainable Development, 21 Geo. International Environmental Law. Rev at 57

[13](1992) 31 I.L.M U.N. Conference on Environment and Development (UNCED), Rio de Janeiro.

[14]S. Atapattu, (2001) Sustainable development, myth or reality?: a survey of sustainable development under

international law and Sri Lankan law, Geo. International Environmental Law

[15]J Holder and M Lee, (2007) Environmental Protection, Law and Policy, Text and Materials,2nd Edition Revised, Cambridge University Press publication, p219

[16]Ibid at p221

[17]Ibid at p223, Para2

[18]Ibid at p223, Para4

[19]Ibid at p223, Para5

[20]P. Sands, (1994) International Law in the Field of Sustainable Development: Emerging Legal Principles, in W. Lang (ed.), Sustainable Development and International Law, p56.

[21]P. Sands, (2003) Principles of International Environmental Law, p254.

[22](1993) Philippine Supreme court, Minors Oposa v. Secretary of the Department of Environment and Natural Resources,

[23]A.B.M. Marong, (2003) From Rio to Johannesburg: Reflections on the Role of International Legal Norms in

Sustainable Development, 21 Geo, International Environmental Law. Rev at 57.

[24]V. Lowe, (1999) (Sustainable Development and Unsustainable Arguments, in Boyle & Freestone International Law and Sustainable Development: past achievements and future challenges.

[25]Ibid pp24-25

[26]Ibid pp33-34

[27]John S Dryzek, (1997) The Politics of Earth; Environmental Discourses. Oxford University Press.

[28]Ibid p125.

[29]Michael Jacobs (1999) Sustainable development as a contested concept, in Andrew Dobson (ed) Fairness and Futurity: Essay on Environmental Sustainability and Social Justice (Oxford University Press)

[30]Ibid p22

[31]John S Dryzek, (1997) The Politics of Earth; Environmental Discourses. Oxford University Press, p125

[32]J Holder and M Lee (2007) Environmental Protection, Law and Policy, Text and Materials,2nd Edition Revised, Cambridge University Press publication, p231

[33]Ibid p231

[34]David Pearce and Edward B. Barbier, (2000) Blueprint for Sustainable Economy (Earthscan)

[35]David Pearce and Edward B. Barbier, (2000) Blueprint for Sustainable Economy (Earthscan) pp23- 24

[36]Ibid pp23-24

[37]Heman E Daly (1995) on Wilfred Beckerman Critique of Sustainable development, Environmental Values, pp49-52

[38]J Holder and M Lee, (2007) Environmental Protection, Law and Policy, Text and Materials,2nd Edition Revised, Cambridge University Press publication p239

[39]Lavanya Rajamani (2003) 12 From Stockholm to Johannesburg: The Anatomy of Dissonance in the International Environmental Dialogue. Review of European Community and International Environmental Law 23, pp 25-26.

[40]Ibid

[41]A.B.M. Marong, (2003) From Rio to Johannesburg: Reflections on the Role of International Legal Norms in

Sustainable Development, 21 Geo. International Environmental Law. Rev, at 57

[42]J Holder and M Lee, (2007)Environmental Protection, Law and Policy, Text and Materials,2nd Edition Revised, Cambridge University Press publication p218

[43]Ibid p218

[44][1998] 37 ILM 162 The separate opinion of Justice Weeramantry in the Case Concerning the Gabcikovo-Nagymaros Project (Hungaryv. Slovakia) under (c) Sustainable Development as a Principle of International Law

[45]Ibid under (f) Traditional Principles that can assist in the Development of Modern Environmental Law

Lilian Nyamwaro is International Relations Officer for Facilitate Global. She can be contacted at lilian.nyamwaro@facilitateglobal.org

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