Sustainable Development: In Search of a Legal Rule

Article excerpt

THE QUESTIONS TO BE CONSIDERED

Should sustainable development be a domestic legal rule? What role could it play? What would it mean? Before considering these questions, I will briefly describe their legal context.

THE LEGAL CONTEXT

The emergence of the concept international environmental law

In 1983, the United Nations established the World Commission on Environment and Development. [1] In 1987, in its report Our Common Future, [2] the Commission recommended sustainable development as a strategy to combat the world's accelerating environmental problems and the growing divide between rich and poor countries. Sustainable development was defined as "development that meets the needs of the present without compromising the ability of future generations to meet their own needs." [3] The report identified the objectives of sustainable development as reviving growth, changing the quality of growth, meeting essential needs for jobs, food, energy, water, and sanitation, conserving and enhancing the resource base, reorienting technology, managing risk, and merging environmental and economic decision making. [4] It was described as a multi-faceted concept consisting of ecological, social, and economic sustainability, and encompassing the ideals of environmental health, social justice, and qualitative improve ment in living standards.

Since then, sustainable development has become one of the dominant concepts in international environmental law. The 1992 Rio Declaration on Environment and Development [5] articulated 27 principles directed at achieving sustainable development. Several environmental conventions and other international instruments refer to sustainability and sustainable development as guiding principles. [6] The Preamble of Agenda 21, A Global Programme of Action on Sustainable Development7 drafted at the United Nations Conference on Environment and Development in 1992 states:

1.1. Humanity stands at a defining moment in history. We are confronted with a perpetuation of disparities between and within nations, a worsening of poverty, hunger, ill health and illiteracy, and the continuing deterioration of the ecosystems on which we depend for our well-being. However, integration of environment and development concerns and greater attention to them will lead to the fulfilment of basic needs, improved living standards for all, better protected and managed ecosystems and a safer, more prosperous future. No nation can achieve this on its own; but together we can - in a global partnership for sustainable development.

International versus domestic law

International law governs relationships between states. [8] It does not directly govern the actions of persons within those states. In contrast, domestic law is intra-national law. It is the law that exists within a country that proscribes certain behaviour from individuals, and governs relationships between persons, including corporate entities, and between persons and the government of that state.

International law is dependent upon voluntary submission and observance. International conventions and treaties are essentially agreements between or among countries that are entered into voluntarily, as a result of political negotiation. They are statements that define how signatory states are expected to behave. When a treaty is breached, the consequences are largely political and symbolic. Other countries may retaliate in an economic or political manner; or the offending state may be challenged in an international forum, such as the International Court of Justice. Such bodies do not have the coercive power to enforce their judgments. If the regime includes binding arbitration, as in the case of international trade law, there may be consequences for the terms of the offending country's continued participation in the pact. But whatever the consequences, there is no supreme authority with the power to make laws and enforce them unless states voluntarily submit themselves to that authority. …