Unit 1 Background, development and sources

1. the period prior to 1945: growing understanding of environmental impacts and constraints to economic development, fragmented bilateral and regional treaties, but growing coherence and formation of the UN in 1945.
2. the period after the Second World War in 1945 to the Stockholm Declaration of 1972: establishment of international organisations, growing regulation of pollution, and for conservation of selected natural resources.
3. the post-Stockholm period to the Rio Declaration in 1992: proliferation of environmental NGOs and global and regional treaties, but leading to increased coherence in the Rio principles and Agenda 21. The Brundtland Commission develops the concept of sustainable development.
4. the post-Rio period to the World Summit on Sustainable Development in Johannesburg in 2002 and since: a paradigm shift from the adoption of normative frameworks and principles to the implementation of internationally agreed norms and standards, and the adoption of a focus on poverty alleviation.

The basic intent of sustainable development, as proposed by the Brundtland report, is to meet the needs of the present without compromising the ability of future generations to meet their own needs. The report stated that sustainable development contains two concepts: the concept of needs, especially those of the world's poor to whom overriding priority should be given; and the recognition of limitations imposed by technology and social organisation on present and future environments. The report further recognised that the concept of sustainable development incorporates the economic and social development goals of all countries. It therefore involves a progressive transformation of the economy and society. This is a fundamental change in the paradigm of repairing or preventing damage to the environment now, to integrating environmental interests with social and economic concerns in the present and the future.

The Brundtland report proposes sustainable development as a means to meet the basic needs of all communities over time and space. This embraces the aspiration of achieving equity for all humanity. The report also recognises the need to manage renewable resources within the limits of their regeneration and natural growth. In the critical case of non-renewable resources, such as fossil fuels, minerals and even land, their continued consumption obviously depletes their availability for future generations. Therefore the rate of consumption, combined with recycling and economy of use, should be calibrated carefully to ensure that the resource is not exhausted before acceptable substitutes are developed and available. Such considerations are not merely a matter of policy but also depend crucially on patterns of individual behaviour and consumption. This aspect of reality the report also recognises in advocating political systems that promote and secure citizen participation in decision-making.

Since the report, the concept of sustainable development has been the focus of a proliferation of analyses and definitions. Regardless of the multiple views, it can claim a key strength. That is that its integration of economic and social considerations with those of the environment is far more likely to be adopted and implemented than a narrow focus on the environment. Policies which more narrowly emphasise the remedy of environmental damage and protection of environmental resources will more likely be subordinated to economic and social development objectives. The Brundtland report also emphasises the then novel concept of intergenerational equity. Promoting the concept of equity and fairness not only between generations but between rich and poor societies in the present is clearly commendable. It is commendable because the global environment by definition is shared. Therefore the cost of sustaining that environment should also be shared but according to the relative degrees of impacts and capacities.

Regarding weaknesses, McCloskey (1999) suggests that the report used the term 'sustainable development' as a label that pasted over loosely assembled ideas that were poorly integrated. For example, in stressing the concern with equity between generations, the report is less clear with respect to equity for and within the present generation. Intergenerational considerations are given more attention than intragenerational needs.

McCloskey further suggests that the report is optimistic in appearing to assume that development is more limited by technology than it is by the natural environment. This objection also relates to the anthropocentric view of the report. It fails to consider the protection or use of natural resources from their viewpoint. Are coral reefs and the abundant life they support worth saving for their own sake, for example?

A crucial part of the debate concerns the distinction between those who believe we can consume resources without anxieties because technological creativities can be relied upon to provide solutions, and those who are less optimistic believing we should be cautious and should emphasise the development and uses of alternative technologies now. However, as McCloskey acknowledges, the report does attempt to consider what is an ongoing debate between those who see planet earth as finite and those who see its human occupation as less constrained because of the infinite ingenuity of human beings.

McCloskey notes that the report conveyed the corollary idea that unsustainable development would, by definition, fail. Hence sustainable development would be the natural and rational course to follow. Conversely, development is a condition of environmental protection. Unfortunately, the idea that unsustainable development must fail and hence will not be the course of action itself fails to recognise timescales. As the 'tragedy of the commons' well demonstrates, an unprofitable course of action in the long run may be profitable in the short term. With respect to the perspective of the future, the short term may be more than a decade obviously. A project that may prove unsustainable in 20-30 years time may not deter an investor now. It was beyond the reach of the Brundtland report to address the question of how to weigh the benefits and costs of decisions with different time-scales.

Regardless of these weaknesses, the Brundtland report was an important contribution to the development of international environmental law. It broke new ground in advancing beyond the narrow environmental interests that would likely not have themselves been sustainable in environmental law and practice. It stepped beyond the narrow single-issue focus and considered environmental issues in the 'whole'. In particular, it made the critical attempt to reconcile the otherwise competing goals of development and the environment. For example, although the Rio Declaration itself contained no definition of sustainable development, it was referred to in several of the principles, covering development, eradication of poverty, consumption patterns and demographics, among others. In this respect, Rio continued the line set out in the Brundtland Report of 1987, Our Common Future, as commissioned by the UN General Assembly.

As a principle of soft law, the concept of sustainable development can claim that it has advanced environmental law at national and international levels.

To determine the legal status of the principle of sustainable development under international law, many factors will need to be considered. These include: its source; its textual content; its language; its consistency of use and reference in an international legal context.

Of all the principles of international environmental law, there appears to be much support that Principle 21/Principle 2 on sovereignty over natural resources, the responsibility not to cause damage to the environment of other states or to areas beyond national jurisdiction and the good neighbourliness/international co-operation principle are substantive enough to be relied on when seeking to establish the basis of an international cause of action, the violation of which would give rise to a legal remedy. Article 38(1)(b) of the Statute of the International Court of Justice identifies the two elements of customary law as being state practice and opinio juris. Based on the existence of sufficient evidence to support the assertion that these two elements have been met, these two principles of international environmental law can be said to reflect rules of customary international law. There is, however, to date, no conclusive determination on the legal status of other principles of international environmental law, including the principle of sustainable development, and each are at different stages in the international law development process.

Whilst this does not amount to an accepted legal definition, four core components of the concept of sustainable development can be identified. These are: the idea that the needs of present and future generations must be taken into account (intergenerational equity); the need to ensure that renewable and non-renewable environmental resources are conserved and not exhausted (sustainable use of natural resources); the requirement that access to, and use of, natural resources must take equitable account of the needs of all peoples (equitable use of natural resources); a recognition that issues of environment and economic development must be treated in an integrated manner (integration of environment and development).

Principle 27 of the Rio Declaration adopted at the 1992 UN Conference on Environment and Development (UNCED) referred to 'the further development of international law in the field of sustainable development' which suggests that a body of international law on sustainable development already exists. This might help to influence the discussion on the legal status of the principle of sustainable development. However, the Rio Declaration was in itself a non-binding declaration of principles rather than a legally binding document, although this does not mean that the principles contained therein might not individually or collectively have certain legal force or implications. However, whilst the individual components of the principle of sustainable development have achieved some legal effect, appearing in legally binding international environmental instruments, and in some cases are considered to reflect customary international law by virtue of their consistent endorsement by state practice, as a separate and general principle of international law, it is unlikely that the principle of sustainable development can be said to have crystallised into a general principle of international law, nor to reflect customary international law.

Its legal status, however, may certainly claim influence as soft law. This is demonstrated by the Resolution adopted by the General Assembly in its United Nations Millennium Declaration:

'We reaffirm our support for the principles of sustainable development, including those set out in Agenda 21, agreed upon at the United Nations Conference on Environment and Development.'

Goal 7 of the Declaration, 'Ensure environmental sustainability' comprehensively endorses an agenda to develop and use the earth's land, water, air and biological resources sustainably.